State and Local Government by the People 0205962823

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Why Do You Need This New Edition? If you’re wondering why you should buy this new edition of State and Local Government by the People, here are five good reasons! 1

New chapter-opening anecdotes examine important political events and controversies at the state and local levels, including California’s current budget challenges, strict state regulations on undocumented aliens, and the legalization of same-sex marriage.

2

Using 2010 and 2012 election results, Chapter 6 analyzes recent gubernatorial campaigns, candidates, and winners.

3

Updated box features help students apply concepts to key political issues and questions, such as hydraulic fracturing for natural gas, higher education funding and rising student debt, the effect of local government bankruptcy on communities, and the structure of local governments internationally.

4

A greater emphasis on participation with new sections and box features that discuss how students can get involved in local government, school decisions, local zoning, and data analysis about policies in their state.

5

A new design simplifies the presentation of content to facilitate print and digital reading experiences. It also focuses reading by turning our book’s learning objectives into a clear learning path for each chapter.

STATE AND LOCAL GOVERNMENT BY THE PEOPLE 16TH EDITION

David B.

MAGLEBY

Brigham Young University

Paul C.

LIGHT

New York University

Christine L.

NEMACHECK

The College of William & Mary with

Carmine P. F.

SCAVO

East Carolina University

Boston Columbus Indianapolis New York San Francisco Upper Saddle River Amsterdam Cape Town Dubai London Madrid Milan Munich Paris Montréal Toronto Delhi Mexico City São Paulo Sydney Hong Kong Seoul Singapore Taipei Tokyo

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Credits and acknowledgments borrowed from other sources and reproduced, with permission, in this textbook appear on pages 286–287. Copyright © 2014, 2012, 2010 by Pearson Education, Inc. All rights reserved. Printed in the United States of America. This publication is protected by Copyright and permission should be obtained from the publisher prior to any prohibited reproduction; storage in a retrieval system; or transmission in any form or by any means, electronic, mechanical, photocopying, recording, or likewise. To obtain permission(s) to use material from this work, please submit a written request to Pearson Education, Inc., Permissions Department, One Lake Street, Upper Saddle River, New Jersey 07458, or you may fax your request to 201-236-3290. Many of the designations by manufacturers and sellers to distinguish their products are claimed as trademarks. Where those designations appear in this book, and the publisher was aware of a trademark claim, the designations have been printed in initial caps or all caps.

Library of Congress Control Number: 2013930693

10 9 8 7 6 5 4 3 2 1 ISBN 10: 0-205-96282-3 ISBN 13: 978-0-205-96282-2

BRIEF CONTENTS Contents iv • Preface viii

1

State and Local Politics 2

6

State Governors 130

2

American Federalism 24

7

Judges and Justice in the States 156

3

State Constitutions 54

8

Local Governments and Metropolitics 180

4

Parties and Elections in the States 74

9

Making State and Local Policy 208

5

State Legislatures 102

10

People and Money in State and Local Governments 236

Glossary 262 • Notes 266 • Credits 286 • Index 288

iii

CONTENTS Preface viii

1 1.1

Powers of the National Government 32 Powers of the States 34 Constitutional Limits and Obligations 35

State and Local Politics 2

YOU WILL DECIDE: SHOULD CITIZENS HAVE THE RIGHT TO CHOOSE THEIR TIME TO DIE? 36

Who Governs? 4 The Role of State and Local Governments 4 Who Has the Power? 5 YOU WILL DECIDE: WHO SHOULD HAVE PRIMARY CONTROL OF U.S. HEALTH POLICY— THE FEDERAL GOVERNMENT OR THE STATES? 6

Interstate Relationships 37

2.3

McCulloch v. Maryland 38 National Courts and the Relationship with the States 39 The Supreme Court and the Role of Congress 39 The Continuing Debate Between Centralists and Decentralists 40

Rule by a Few or Rule by the Many? 7

1.2

Influences on State and Local Governments 8 Who Are the Constituents? 8 OF THE PEOPLE: THE GROWING DIVERSITY OF STATE POPULATIONS 9

2.4

The Maze of Interests 9 Lobbyists at the Statehouse 11

1.3

FOR THE PEOPLE: HELPING STATES EDUCATE THEIR CITIZENS 44

The Politics of National Grants 46 The Battle for Grants 46 Unfunded Mandates 46

The Role of Local Media 14 Grassroots Apathy 15

2.5

The Politics of Federalism 47 The Growth of National Government 47

Civic Initiatives in Communities 16

1.4

The National Budget as a Tool of Federalism 42 Types of National Government Grants 43

Participation Patterns in Local Government 13

BY THE PEOPLE: HOLDING STATE GOVERNMENTS ACCOUNTABLE 15

The National Courts and Federalism 38

BY THE PEOPLE: DO A DATA MASH-UP ON YOUR STATE 48

Challenges for State and Local Governments 17

The Future of Federalism 49

FOR THE PEOPLE: IMPROVING ACCESS TO INFORMATION 19

2 2.1

3 American Federalism 24

3.1

Alternatives to Federalism 28 Advantages of Federalism 29 Disadvantages of Federalism 30

2.2 iv

The Constitutional Structure of American Federalism 32

The Roots of State Constitutions 56 BY THE PEOPLE: EXPLORING YOUR STATE CONSTITUTION 58

Defining Federalism 26

OF THE PEOPLE: WHERE AMERICANS COME FROM AND WHERE THEY LIVE 31

State Constitutions 54

Constitutions as Straitjackets 58 The New Judicial Federalism 60

3.2

Amending State Constitutions 62 Legislative Proposals 62 FOR THE PEOPLE: PROVIDING FOR QUALITY EDUCATION IN THE STATES 63

Initiative Petitions 64 Constitutional Conventions 66

3.3

Who Serves in the State Legislature? 105 OF THE PEOPLE: DIVERSITY IN THE STATEHOUSE 107

The Politics of Constitutional Revision 66

What State Legislators Do 108 What Legislative Committees Do 109

Rhode Island Amends Its Constitution 67 Changing the Hawaii Constitution 67 YOU WILL DECIDE: SHOULD STATES REQUIRE A SUPERMAJORITY TO APPROVE A CONSTITUTIONAL AMENDMENT? 68

BY THE PEOPLE: INFLUENCING YOUR REPRESENTATIVE ON A CONTROVERSIAL ISSUE 111

5.2

Texas Keeps Its Old Constitution 70 Alabama Considers a New Constitution 70 The Future of State Constitutions 71

4

Parties and Elections in the States 74

Influences on State Legislators 111 Political Parties 112 Interest Groups 113 Constituents 114 Learning from Other Governments 114

OF THE PEOPLE: PRACTICING THE LAW 69

FOR THE PEOPLE: MEASURING LEGISLATIVE EFFECTIVENESS 115

5.3

Modernization and Reform 116 YOU WILL DECIDE: SHOULD LEGISLATORS BE PAID HIGHER SALARIES? 117

4.1

4.2

The Constitutional Context: State and Federal Roles in Regulating Elections 76

Legislative Term Limits: Problem or Solution? 117

5.4

One Person, One Vote 120 New Rules for Redrawing the Districts 121

Elections at the State and Local Levels 77 Differences in Who May Vote 79 Differences in How We Vote 80

5.5

FOR THE PEOPLE: IMPROVING THE ELECTION PROCESS 88

Differences in Campaign Finance 88

4.3

6 6.1

The Role of Political Parties 89

4.4

5 5.1

Party Balance and Imbalance 97

State Legislatures 102 The Legislative Branch 104 How Are Legislatures Organized? 104

Becoming and Remaining Governor 132 OF THE PEOPLE: GOVERNORS 134

Reelection 135

BY THE PEOPLE: REGISTERING TO VOTE 93

OF THE PEOPLE: YOUTH VOTING 97

State Governors 130

Governors Under Pressure 133

Party Organization and Officers 90 Party Activities in Elections 91 Parties and Voting Choices 93 Parties in State Government 95

Direct Legislation: Policy-Making by the People? 122 Initiative 122 Referendum 123 The Debate over Direct Democracy 124

YOU WILL DECIDE: SHOULD FORMER FELONS BE ALLOWED TO VOTE? 81

Differences in Nomination Processes 84 Differences in the Timing and Frequency of Elections 85 Differences in What We Vote On 86

Drawing Legislative District Lines 119

6.2

A Governor’s Formal and Informal Powers 136 Appointive Power 138 Fiscal and Budgetary Power 139 Veto Power 140 Executive Orders 140 YOU WILL DECIDE: SHOULD GOVERNORS HAVE A LINE ITEM VETO? 141

Commander in Chief of the National Guard 142 Pardon Power 142 Policy-Making Influence 143 Governors and Media Relations 144

v

6.3

The Job of the Governor: Managing the State 145 Modernizing State Administrations 146 Effects of Reorganization 147

6.4

Assisting the Governor: State Executive Officials 147 Lieutenant Governor 147 Attorney General 148

8 8.1

6.5

Governors Today: Challenges and Rewards 151

8.2

7.1

8.3

7.2

8.4

The Mayor–Council Charter 191 Weak and Strong Mayor Councils 192 OF THE PEOPLE: ARE CITY COUNCILS BECOMING MORE DIVERSE? 192

The Council–Manager Charter 193 Blurring the Lines 194 The Role of the Mayor 195 FOR THE PEOPLE: WHAT ARE AMERICA’S BEST AND WORST RUN CITIES? 196

8.5

8.6

BY THE PEOPLE: COMMUNITY SCHOOL BOARDS 203

Merit Selection: The Missouri Plan 164

The Future of Metropolitan Reorganization 204

OF THE PEOPLE: WOMEN AND MINORITIES ON STATE SUPREME COURTS 165

The Criminal Justice System 167 The Jury 167 The Prosecutor 167 Defense Counsel, Public Defenders, and Others 168 Victims and Defendants 168 Plea Bargaining 170 Sentencing 170

9 9.1

7.4

Prisons 173

Public Education 210

OF THE PEOPLE: TEACHERS IN THE CLASSROOM 213

The Death Penalty 171

vi

Making State and Local Policy 208 Administration of Public Education 211 The Role of the Federal Government in Public Schools 212 Educational Controversies 213

BY THE PEOPLE: FAMILY COURT WATCH 171

YOU WILL DECIDE: CAN THE DEATH PENALTY BE FAIRLY IMPLEMENTED? 172

Metropolitics Today: Meeting the Challenges of Growth and Development 199 Strategies to Govern Metropolitan Regions 200

FOR THE PEOPLE: PUBLIC FUNDING OF JUDICIAL CAMPAIGNS 163

7.3

Central City Politics 197 The Rise of “Edge Cities” 199

How Judges Are Chosen 160

Comparing Judicial Selection Systems 165 Judicial Conduct 166

City Government 189 YOU WILL DECIDE: DOES ECONOMIC DEVELOPMENT JUSTIFY EMINENT DOMAIN? 190

The Structure of State Courts 158

Appointment by the Governor and Election by the Legislature 161 Popular Election 162

Towns and Suburbs 186 Eminent Domain 189

Judges and Justice in the States 156 Minor Courts 158 Trial Courts of General Jurisdiction 159 Appellate Courts 159 State Courts and State Politics 160

Counties 184 County Government 185 County Performance 186

BY THE PEOPLE: WHO GOVERNS YOUR SCHOOL? 151

7

The Nature of State and Local Relations 182 Defining Local Government Structures 183

FOR THE PEOPLE: MAKING GOVERNMENT MORE ETHICAL 149

Secretary of State 150 Treasurer and Auditor 150 Other Officials 150

Local Governments and Metropolitics 180

9.2

Higher Education 216 Administration of Higher Education 216 Funding Higher Education 216

YOU WILL DECIDE: SHOULD THE FEDERAL GOVERNMENT ENCOURAGE INCREASED STATE FUNDING OF HIGHER EDUCATION? 218

9.3

OF THE PEOPLE: THE DIVERSE STATE AND LOCAL WORKFORCE 240

Reforming Personnel Systems 240 Labor Unions and Collective Bargaining 241 Privatization of Public Services 242

Social Services 219 Public Assistance 219

10.2

Paying for State and Local Government 243

BY THE PEOPLE: NEIGHBORHOOD WATCH GROUPS 222

Public Health 222

9.4

Where the Money Comes From 244

Planning the Urban Community 224

YOU WILL DECIDE: SHOULD LOCAL GOVERNMENTS BE ALLOWED TO DECLARE BANKRUPTCY? 245

Property Policy 225 Controlling Growth 225 Transportation 226

9.5

FOR THE PEOPLE: SHARING BEST PRACTICES FOR BUDGET REFORM 246

The Property Tax 247 Other Taxes 250 Other Sources of Revenue 252 Borrowing Money 254

Homeland Security and Emergency Management 228 FOR THE PEOPLE: CREATING GOVERNMENT EFFICIENCY 230

10.3 9.6

Regulation 230 Environmental Regulation 230 Working Conditions 231

10 10.1

People and Money in State and Local Governments 236

State and Local Government Spending 255 10.4

Assessing State and Local Performance 256 BY THE PEOPLE: MONITORING STATE SPENDING 257

Staffing State and Local Governments 238 Public Employees 239

Glossary 262 • Notes 266 • Credits 286 • Index 288

vii

PREFACE State and Local Government by the People is about the institutions and political forces that shape policy-making and policy outcomes in state and local communities. To those of us who are students of American politics, states and their local government subdivisions are fascinating political laboratories that allow comparisons among different political systems and traditions. States vary in the powers given to governors, the structure of their legislatures, their judicial review and selection processes, and their policies, including how they impose taxes. The party system is much weaker in some regions of the country than in others. State legislatures in some of the smaller or rural states meet for just a few months a year, whereas in other states, they meet year-round. The importance of interest groups and the media varies from state to state and from city to city. Generalizations are sometimes difficult, yet we try in this book to summarize what political scientists know about state and local politics and government. One particular current policy choice illustrates the continuing role of state and local governments—the Affordable Care Act or “Obamacare.” More than half of the states joined business groups and others in challenging the constitutionality of the legislation. Since the Supreme Court ruled most of the act constitutional but made the expansion of Medicaid voluntary, the states face the choice of whether or not to implement the Medicaid expansion provisions. Decisions made by the individual states will have consequences for the people in those states. Like welfare reform in the 1990s, health care reform is an issue that impacts governments at all levels. State and local government is the most common way government services are provided because it is closer to the people. Those who want better government in their communities and states will be more likely to achieve it by doing something to make it happen. If government by the people is to be more than just rhetoric, citizens must understand state and local politics and be willing to form political alliances, respect and protect the rights of those with whom they differ, and serve as citizen leaders and citizen politicians. We hope this book will motivate you to appreciate that every person can make a difference, and that we should each work toward this end.

New to This Edition

viii

The new edition of State and Local Government by the People builds on the long-standing reputation of this book for strong coverage of the foundations of American state and local government that is accurate, accessible, and current. We integrated the latest in scholarship on American politics and government, the 2012 elections, recent Supreme Court appointments and decisions, and comparisons with countries around the world into a book that introduces you to the subject and the discipline of political science. Chapter 1 begins with an example of the current budget challenges faced by California. This and other new examples in the chapter illustrate how the economy and even international relations affect governments at all levels. The chapter has a new section on how individuals can influence state and local governments. Chapter 2 opens with a discussion of recent state regulations on undocumented aliens. Several states—Alabama and Arizona are examples— have passed tougher legislation on undocumented aliens than the U.S.

government has. The constitutionality of these efforts was tested in a 2012 U.S. Supreme Court case. A new feature directs students to a Web site that allows them to create tables and graphs displaying information about their state. Chapter 3 has been updated to include a timely discussion of state constitutional efforts to deal with the question of same-sex marriage, one of the most hotly debated topics in politics today and an excellent lens through which to analyze the importance of state constitutions. An expanded section on new judicial federalism addresses the important role state courts play in protecting individual liberties as the courts increasingly decide cases using their own state constitutions rather than the U.S. Constitution. Chapter 4 reviews the impacts of the reapportionment that occurred in 2011 and 2012 and provides a current and expanded discussion of the redistricting process. The chapter also explores the important agenda-setting role of ballot initiatives and referendums. With states experimenting with new ways to vote—by mail or electronically, for example—the chapter examines why these reforms were instituted and what has changed as a result of their adoption. Chapter 5 places state legislatures in their historical context as predating the U.S. Constitution. The chapter explores similarities and differences between state legislatures and the U.S. Congress. One important similarity is a reliance on committees to do much of the work. New to this edition is information on how to contact your representative in the state legislature on a new, contentious policy issue—hydraulic fracturing for natural gas. Chapter 6 has been updated to include results from the 2010 and 2012 elections in a broader analysis of gubernatorial elections. Although states vary in the power they give the governor, all governors have important formal and informal powers. For example, governors typically have the power to pardon criminals. As discussed in the new opener, former Illinois Governor George Ryan exercised that power when he pardoned four death row inmates and commuted the sentence of all 167 death row inmates to life sentences. Chapter 7 includes an updated and enhanced discussion of judicial elections and campaign contributions. State courts, like their federal counterparts, are becoming increasingly diverse, and this chapter also includes updated data on the presence of women and racial and ethnic minority judges in the state judiciary. The chapter has a new section evaluating the different state judicial selection procedures. It includes new discussions on the changing treatment of the death penalty in the states, the role of court monitoring groups, and efforts in some states to publicly fund judicial elections. Chapter 8 taps into service delivery by local government. The example of volunteer fire departments in suburban New York City is provided to demonstrate how local governments are attempting to provide effective and efficient services in a time of financial difficulty. Local units of government—counties, cities, towns, school districts and special districts—are described and analyzed. The chapter also presents an example of how people can make a difference in local zoning and school decisions. Chapter 9 examines the policy-making that occurs at the state and local levels. Using education as an example, the chapter includes a current examination of efforts by governments at all levels to improve public education. Of particular interest to college students is a section on higher education funding and the issue of increasing student debt to pay for the shifting costs of higher education. Chapter 10 includes an updated discussion of an important consequence of the economic challenges faced by the United States in recent years: growing debt in some states and many localities. There is a renewed focus on lowering costs in local and state governments, as well as adequately staffing government in a time of shrinking budgets. A new feature in this chapter examines the growing occurrence of local government bankruptcy and the political and financial issues that result from this.

ix

Features We have not forgotten the long tradition of scholarship that has always made this book credible to the political science community, but we have brought new perspectives, current examples, and timely data to make sure every student knows that American government is as relevant to their lives today as it was when our book was first published. We are obviously proud of what our co-authors produced in prior editions. At the same time, we do not rest on the past by merely updating what has come before. We want this book to live on as an example of how to integrate the basic arguments about what the framers created with what is happening now and changing. Toward this goal, we continue to present the book in an accessible tier of increasingly detailed knowledge—we start each chapter with a clear introduction intended to engage the students in the topic. From our first chapter on state and local politics we turn to federalism and the constitutional foundations of state governments and then to parties and elections in the states. We then focus on institutions in successive chapters: legislatures, governors, and judges. Our focus then turns to local government. We conclude the book by looking at policy-making, staffing, and financing at the state and local levels. The book flows naturally from one section to the other, but we invite you to present these chapters in any order that fits your own teaching plan. Whatever the order you use, you will always find four features in each chapter that ask students to think critically about how a government of, by, and for the people operates:

x

●

Diversity in America. In important ways, the people of the United States today are much more diverse than at any previous time. This feature explores the impact of the ever-increasing level of diversity in the American political landscape, including how race and gender are changing the way the American government works. These unique boxes are designed to reflect the concerns and experiences of ethnic and minority groups in American politics.

●

Making a Difference. Citizens have many options for influencing government—for example, combining data sets to create mash-ups that help explain pressing problems such as obesity, telling their stories to news organizations, tracking government spending, staying in touch with the governor’s office, lobbying for education policy, tweeting their state legislators, and becoming involved in campus and community life by building playgrounds, registering voters, and even monitoring college investments.

●

Government’s Greatest Endeavors. The public has asked government to solve many difficult, important problems in the effort to meet the Constitution’s promise of a more perfect union. This feature asks students to explore the benefits and challenges of great endeavors such as reducing disease, fighting discrimination, creating a safe voting process, reducing crime, building the Internet, and fighting campaign corruption.

●

You Will Decide. Your students face a daunting list of choices about the difficult, important problems ahead. This feature asks students to think through a real decision they will help government decide, such as end of life choice, hydraulic fracturing for natural gas, eminent domain, and federal efforts to encourage states to increase funding for higher education. Given the pros and cons of each question, students are asked to make the call.

This edition expands on the framework of learning pedagogy to help you see the structure of each chapter’s discussion, focus on the most important

concepts, and apply what you are learning to understand American politics and government. The author team has developed a list of learning objectives— the concepts professors teaching this course most often want their students to understand—to shape and guide the development of this edition. Each chapter opens with a list of these learning objectives, highlighting the learning goals for that chapter. Key terms are called out in the text margins as the concepts are discussed, and a summary and self-test at the end of each chapter provide students with a final check of their understanding of the chapter. These many features, tools, and updates bring the book into the present. Students will see how an example is related to their reality. They will better understand why the Constitution and history matter to solving big problems and making a difference in our highly polarized debate. The challenges facing the United States today are clearly explained as well as why they matter to citizens. Ultimately, the book draws upon its own past to show students that others have made a difference before, and that they can make their own difference today. We want all students to become active participants in our democracy, and we have written a book that gives them an invitation to engage. This is the enduring commitment of the book and one that we take very seriously when we sit down every two years to bring state and local government back into focus through a vibrant emphasis on what they need to know as citizens and participants.

Supplements Pearson is pleased to offer several resources to qualified adopters of State and Local Government by the People and their students that will make teaching and learning from this book even more effective and enjoyable. Several of the supplements for this book are available at the Instructor Resource Center (IRC), an online hub that allows instructors to quickly download book-specific supplements. Please visit the IRC welcome page at www.pearsonhighered.com/irc to register for access.

MYSEARCHLAB. For over 10 years, instructors and students have reported achieving better results and better grades when a Pearson MyLab has been integrated into the course. MySearchLab provides engaging experiences that personalize learning, and comes from a trusted partner with educational expertise and a deep commitment to helping students and instructors achieve their goals. A wide range of writing, grammar, and research tools, and access to a variety of academic journals, census data, Associated Press newsfeeds, and discipline-specific readings help students hone their writing and research skills. To order MySearchLab with this text, use ISBN 0-205-96653-5. INSTRUCTOR’S MANUAL/TEST BANK. This resource includes learning objectives, lecture outlines, multiple-choice questions, true/false questions, and essay questions for each chapter. Available exclusively on the IRC. PEARSON MYTEST. This powerful assessment generation program includes all of the items in the instructor’s manual/test bank. Questions and tests can be easily created, customized, saved online, and then printed, allowing flexibility to manage assessments anytime and anywhere. Available exclusively on the IRC. POWERPOINT PRESENTATION. Organized around a lecture outline, these multimedia presentations also include photos, figures, and tables from each chapter. Available exclusively on the IRC.

xi

Acknowledgments The writing of this book has profited from the informed, professional, and often critical suggestions of our colleagues around the country. This and previous editions have been considerably improved as a result of reviews by the following individuals, for which we thank them all: State and Local Government by the People began in 1948 when two young assistant professors, James MacGregor Burns of Williams College and Jack W. Peltason of Smith College, decided to partner and write an American government text. Their first edition had a publication date of 1952. Their aim was to produce a well-written, accessible, and balanced look at government and politics in the United States. As authors have become a part of this book, they have embraced that objective. Tom Cronin of Colorado College and David O’Brien of the University of Virginia have been co-authors and made important contributions to the book. As the current authors of State and Local Government by the People, we are grateful for the legacy we have inherited. Writing the book requires teamwork—first among the co-authors who converse often about the broad themes, features, and focus of the book and who read and rewrite each other’s drafts; then with our research assistants, who track down loose ends and give us the perspective of current students; and finally with the editors and other professionals at Pearson. We are especially grateful for the work of Carmine Scavo on this edition. He has brought an energy to this revision that we have all felt. Research assistants for the current edition of State and Local Government by the People are Troy Anderson, Ethan Busby, Olivia Crellin, Rebecca Eaton, Eric Hoyt, and Katie Van Eaton Kleinert of Brigham Young University. We express appreciation to the superb team at Pearson who have been so supportive and worked so hard to produce this beautiful new edition: political science editor Vikram Mukhija, development editor Corey Kahn, production editor Joan Foley, Marisa Taylor at GEX for composition and layout, Carolyn Arcabascio at PreMediaGlobal for photo research, and editorial assistant Emily Sauerhoff. We also want to thank you, the professors and students who use our book, and who send us letters and e-mail messages with suggestions for improving State and Local Government by the People. Please write us in care of Pearson Education or contact us directly: David B. Magleby, Distinguished Professor of Political Science and Dean of FHSS at Brigham Young University, [email protected] Paul C. Light, Paulette Goddard Professor of Public Service at New York University and Douglas Dillon Senior Fellow at the Brookings Institution, [email protected] Christine L. Nemacheck , Alumni Memorial Distinguished Associate Professor of Government at The College of William & Mary, [email protected] Carmine P. F. Scavo, Associate Professor of Political Science at East Carolina University, [email protected]

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STATE AND LOCAL GOVERNMENT BY THE  PEOPLE

1 State and Local Politics ike governments at all levels, California is experiencing budget and financial problems. California’s problems, however, are not simply the result of the recession that began in 2008 but also reflect past citizen-driven initiatives limiting the state’s taxing and budget-making powers. Under the California state constitution, for example, the state could not until 2010 pass a budget without a two-thirds legislative majority, still cannot raise the state property tax rate without a two-thirds majority, and must give a fixed percentage of the state budget to education. As a result of these and other citizen-initiated restrictions, some observers have blamed California’s financial woes on “too much democracy,” the excessive use of the initiative and referendum to make policy.1 Other observers, however, disagree, arguing “that the legislature would have allocated much of the money [in the same ways] even if it had not been required to do so by the initiative.”2 Regardless, initiatives and referenda occupy prominent positions on California ballots in each election. In 2010, Democrat Jerry Brown was elected governor of California, and voters returned a Democratic majority to both the California Assembly and the State Senate. Facing a projected deficit of nearly $25 billion, Brown’s budget proposal to the state legislature included a series of fee increases (for example, tuition increases at state universities and colleges) and spending cuts (for example, a $2.7 billion cut in Medi-Cal, the California version of the federal government’s Medicaid health care program for low-income people). On the other side of the budget ledger, the proposal also included about $4 billion in increased tax revenues.

L

2

1.1

1.2

1.3

1.4

Contrast the functions of federal, state, and local governments, and evaluate the theories of decision making in local governments, p. 4.

Analyze the activities and influence of interest groups and lobbyists at the state and local levels, p. 8.

Assess the level and consistency of involvement of the major participants in local communities, p. 13.

Evaluate the challenges facing state and local governments, p. 17.

Californians protest proposed budget cuts to the state university system.

3

1.1

1.2

1.3

1.4

Before approving the budget, the governor and the state legislature negotiated an agreement that would automatically implement budget cuts even if they could not agree on matching tax increases. However, the red ink continued to mount even as the proposal was working its way through the legislature. In mid-November, 2011, the nonpartisan State Legislative Analyst’s office projected revenue falling $3.7 billion behind what the legislature and governor assumed, triggering another $2 billion in additional spending cuts.3 The result has been deeper budget cuts than originally expected and a continued impasse on tax increases. In response to the legislative impasse, Governor Brown endorsed and campaigned for a constitutional amendment—Proposition 30—that would temporarily raise sales and income taxes by some $6 billion a year. Voters unexpectedly approved this amendment in November, 2012, making it the first tax increase in California since 2004. However, even this large injection of new funds may not be enough to end California’s budget problems. According to Chris Hoene of the California Budget Project, “It’s a significant step forward, but there are still major issues with the state budget.”4 States across the United States face budgetary problems similar to those in California as a result of the recent recession’s impact on state revenues; increased demands for spending on education, corrections, health care, and other items; and voters’ opposition to new general purpose tax increases. In better economic times, state and local governments will be pressed to fund popular programs at higher levels while also having to find ways to pay for those expenditures. This chapter will provide an introduction to these and other broad issues facing state and local governments in our federal system. It will first consider the issue of who has power in local government. Then it will look at who influences state and local government— constituents and interest groups—and how they are covered by local media. Last, the chapter looks at the low level of public participation in local government. The core question is how state and local governments play their roles in assuring government by the people.

Who Governs? 1.1

Contrast the functions of federal, state, and local governments, and evaluate the theories of decision-making in local governments.

tate and local governments flourished long before there was a national government. Indeed, the framers of our Constitution shaped the national government largely according to their practical experience with colonial and state governments. The federal government, 50 state governments, and the nearly 90,000 cities, counties, towns, villages, school districts, water control districts, and other local governments all interact to govern and make policy for the country.

S

The Role of State and Local Governments The national government in the United States assumes major responsibility for protecting civil rights, fighting inflation and unemployment, funding scientific research, and subsidizing weaker sectors of the economy. The national government also operates some of the nation’s largest social programs, such as Social Security, Medicare, student loans and grants, and various forms of food and nutritional assistance. It funds recovery efforts after natural disasters, it dominates issues of international trade and relations, and it exercises exclusive authority over matters of war and peace. While it is tempting to conclude that the national government handles problems that are important, leaving those of less importance to state and local governments, such a conclusion is wrong. Consider the following: ●

4

You are sitting in your apartment looking at the nine inches of new-fallen snow in the street and thinking about how you are going to get to class today and tomorrow. Who is responsible for plowing your street?

● ●

You return from a weekend trip to visit your parents and find that your apartment door was kicked in and some valuable items were stolen. Whom do you call? Your landlord has delayed fixing the leaking roof in the rental house you live in and now black mold is growing on the wall. How do you figure out your legal rights as a tenant without having to pay to consult an attorney?

●

The creek that runs behind your rental house turns deep brown one morning and has a chemical smell. To whom do you report this?

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You have finished your college education and gotten married and now have a small child. You live on a busy street. You are concerned about the safety of your child and others playing outside. Whom do you contact about traffic control?

gross domestic product (GDP) The total output of all economic activity in the nation, including goods and services.

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For each of these issues, a local or state official or agency would be charged with addressing the question you are asking. State and local governments make decisions that affect many people’s daily lives—they make most of the decisions about how schools are run, where roads and bridges are built, how land is used, and what social services are provided and to whom. They regulate our driving, our occupations, and our families (through marriage and divorce laws, among others). They decide, for the most part, what constitutes criminal behavior and how it should be charged, tried, and punished, and they have custody of more than 91 percent of the nation’s nearly 2.4 million prison and jail inmates.5 State and local governments administer most of our laws and domestic programs, including those funded by the federal government. Through Medicaid and related programs, state governments provide health care coverage for approximately half of all poor children and a quarter of all poor adults. With federal assistance, they finance half of all nursing home expenditures and more than one-third of all births.6 They pay for 79 percent of the total costs of building and maintaining our public highway system, and they are responsible for building and maintaining most of our bridges, water and sewage systems, and other elements of our nation’s infrastructure.7 State and local colleges and universities educate nearly three of every four students enrolled in higher education.8 State and local governments are a very large part of our economy. They spent more than $2.1 trillion in 2010, which equals more than 14 percent of the United States’ gross domestic product (GDP), a measure of all goods and products produced by the economy.9 State and local expenditures as a percentage of national GDP have steadily grown during the last 30 years, while federal spending has held steady or slightly declined,10 although the substantial federal spending in 2009–2011 in response to the recession runs counter to this trend. The critical point to remember is that state and local government spending combined has nearly the same total impact on our country’s economy as does that of the national government. State and local governments employ nearly 20 million people, which is slightly more than seven times as many as there are federal government employees. Moreover, state and local governments have grown. Most state and local employees work in education (11.2 million), hospitals (1.1 million), police protection (1 million), and corrections (763,000).11 In fact, from 2001 to the present, state and local governments have employed more workers than the entire U.S. manufacturing sector. Given these measures of size, it is not surprising that state and local governments have more daily contact with ordinary Americans than the national government. In fact, Americans meet state and local governments every day, in schools, at parks and playgrounds, on the roads and highways, and in many hospitals. State and local employees are the face of government for many of us, and they help execute the federal government’s laws and rules.

Who Has the Power? Every government system is part of a larger social system. Each one operates in the context of a particular economic system, class structure, set of racial and religious differences, political party structure, and set of lifestyles. The diversity of social systems surrounding state and local governments, along with their complex interconnections

California’s state government has played a leading role in climate change and other environmental issues, in part because its environmental problems are so severe. This picture shows Los Angeles.

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You Will Decide

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Who Should Have Primary Control of U.S. Health Policy—the Federal Government or the States?

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uch of the legal battle about President Obama’s health insurance plan focused on whether the federal government could require individual Americans to buy health insurance or face a stiff penalty. But the plan also included a large expansion in Medicaid coverage for individuals who are sometimes called “the working poor.” Although the federal government promised to cover 100 percent of the funding for this expansion in its first year of implementation (2014), its share will decline to 90 percent in 2020. The law stipulated that states refusing to comply with expansion would lose all federal Medicaid funding. In its June 2012 ruling, the Supreme Court found that most of the Affordable Care Act (ACA) was constitutional. However, the Court did rule that Congress had overstepped its power in penalizing states with loss of all Medicaid funding if they did not expand Medicaid coverage. Chief Justice Roberts termed the penalty

“economic dragooning” and “a gun to the head” of the states.* In rejecting the penalty provision, the Court essentially made state compliance with Medicaid expansion optional. As a result, some state governors have said they would not expand Medicaid coverage nor would they participate in the American Health Benefit Exchanges established by the law because their state cannot afford the cost. † Hospitals and patient advocates have countered that those people who are not extended Medicaid benefits under ACA will still need to receive services and so will drive up costs of everyone else’s health care. What do you think? Is the provision of Medicaid to the working poor through shared federal/state funding a good idea? Is even the 10 percent match something your state cannot afford?

Thinking It Through

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efore the implementation of ACA, the federal government paid 57 percent of the $400 billion Medicaid program with the states responsible for the other 43 percent. States would therefore be getting a bargain if the federal government paid for 90 percent of the new coverage, but the 10 percent state match is still a considerable amount of money for some states. Nationally, some 47 percent of the currently uninsured would be Medicaid eligible if all states expanded coverage.‡ Expanding Medicaid coverage to comply with ACA would cost different states dramatically differing amounts of money, increasing expenditures by $1 to $3 billion between 2014 and 2020 in California, Florida, Illinois, North Carolina, and Texas. Other states—Hawaii, Maine, and Massachusetts—would actually save money as federal funding replaced state funding.§ Overall, of the total $455 billion increase in Medicaid expenditures, states would be responsible for some $21 billion while the federal government would be responsible for $434 billion.** One of the arguments for passage of ACA—and also an argument made by the Obama Administration when the case was heard by the Supreme Court—was that health care spending is such a large part of the U.S. economy that regulating it required federal government intervention. The Supreme Court decision threw this back to the states concerning Medicaid. If states

do not expand Medicaid coverage, the working poor will be required to go shopping for health insurance on one of the state or federal health exchanges or pay the penalty for not carrying an individual health insurance policy. Many interest groups representing health care providers—hospitals, physicians, and so on—think this will hurt their finances since they are required by federal law to provide basic emergency health care treatment regardless of ability to pay. They most likely will bring political pressure to bear on state governments to expand coverage.

CRITICAL THINKING QUESTIONS 1. Since the federal government is paying more than 90 percent of the cost of the Medicaid expansion, should it be able to set the rules for who gets covered? Is health care policy such a large part of the U.S. economy that the federal government can preempt state regulation? 2. Since state compliance with Medicaid expansion is now optional, do you think that a “race to the bottom” might occur where each state would try to get an economic advantage against its neighbors by passing the strictest Medicaid eligibility rules?

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Federation of Independent Business v. Sibelius, 567 US ( June 28, 2012). Radnofsky, Anna Wilde Mathews and Cameron McWhirther, “Some States Balk at Medicaid Expansion,” Wall Street Journal, July 2, 2012. ‡Genevieve Kenney, Lisa Dubay, Stephen Zuckerman and Michael Huntress, “Making the Medicaid Expansion an ACA Option: How Many Low-Income Americans Could Remain Uninsured,” Urban Institute Health Policy Center, June 29, 2012. †Louise

§Dylan **Annie

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Scott, “Which States Have Most at Stake in Medicaid Expansion?” Governing: the States and Localities, July 2, 2012. Lowrey, “How Much Would the Medicaid Expansion Cost Your State?” New York Times, July 2, 2012.

with each other and the federal government, affect how these many different state and local governments recognize problems, manage conflict, make decisions about what actions to take, and benefit some people and institutions and not others. The complexity of the problems that face many state and local governments involve core components of democratic governance: citizen participation, liberty, constitutional checks and balances, representation, and responsible leadership. Many years ago, two sociologists from Columbia University, Robert and Helen Lynd, decided to study a typical U.S. city as though they were anthropologists. For two years, they lived in Muncie, Indiana—at that time, a city of 38,000 residents. They asked questions and watched how people made their living, raised their children, used their leisure time, and joined in civic and social associations. The Lynds reported that despite the appearance of democratic rule, a social and economic elite actually ran things.12 Their work stimulated studies in all kinds of communities, including subsequent studies of Muncie by other scholars,13 to find out whether power is concentrated in the hands of a few people, is dispersed among many, or operates in some other way. They have arrived at a variety of findings. Floyd Hunter, a sociologist who analyzed Atlanta in the 1950s, found a relatively small and stable group of top policy makers drawn largely from the business class. This elite group operated through secondary leaders who sometimes modified policy, but the power of the elite was almost always important.14 In contrast, Robert Dahl and his graduate students at Yale University studied New Haven, Connecticut, and concluded that although some people had a great deal of influence, there was no permanent group of elites. Instead, they found shifting coalitions of leaders who sometimes disagreed among themselves but who kept in mind what the public would accept when making decisions.15

social stratification Divisions in a community among socioeconomic groups or classes.

power elite A group composed of community, business, and other leaders who determine public policy or block changes in policy without themselves necessarily holding office.

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Rule by a Few or Rule by the Many? Other investigators have been concerned with social stratification in the political system—how politics is affected by divisions among socioeconomic groups or classes in a community. These social scientists assume that political influence is a function of social stratification. These investigators try to find out who governs particular communities by asking various citizens to identify the people who are most influential. They base their work on the classical political philosopher Thomas Hobbes’ assertion in Leviathan “the reputation of power is power.”16 Then they study those influential people to determine their social characteristics, their roles in decision making, and the interrelations among them and between them and the rest of the citizens. Using this technique, they find that the upper socioeconomic groups make up the power elite. Elected political leaders are subordinate to that elite, and the major conflicts within the community are between the upper and the lower socioeconomic classes. Researchers conducting community power studies that analyze the making of decisions usually find a relatively open, pluralistic power structure, meaning there is competition for power between multiple groups and multiple places where power is exercised. Some people do have more influence than others, but that influence is shared among many people and tends to be limited to particular issues and areas. For example, those who decide how the public schools are run may have little influence over economic policies. These studies also find that, in the fight for influence, competing elites often appeal to the public, especially voters, and thus draw larger groups into local politics. But local governments tend not to be responsive to citizens who are not engaged at all in local politics—those who are uninformed, apathetic, and do not vote.17 Furthermore, scholars have also noted that political activism by citizens alone may not be enough to get local governments to respond to their needs. Rather, it often takes full political incorporation of representatives from the group to generate meaningful policy change.18 7

pluralism

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that open, multiple, and competing groups can check the asserted power of any one group.

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Comparing power elite and community power studies highlights the fact that how we ask questions often influences the answers we get. If we ask highly visible and actively involved citizens for their opinions of who is powerful, we find they often name a small number of people as the power brokers. But if we study dozens of local events and decisions, we typically find that a variety of people are active, usually different people in different policy areas—a theory called pluralism. Other studies of local politics suggest that local values, traditions, and the structure of governmental organizations affect which issues get on the local agenda.19 Tobacco, mining, or steel interests may be so dominant in some areas that tax, regulation, environmental, or job safety policies are kept off the local policy agenda for fear of offending the “powers that be.” Defenders of the status quo can mobilize power resources in such a way that nondecisions may be more important than decisions.20 Community power studies lead to different conclusions depending on the methodology used to study the community, the types of communities or governmental units studied, and even the time frame in which the studies were conducted. The conclusions drawn from the elitist studies reveal that political power is often highly unequal and that local traditions, institutions, and social and economic factors frequently constrain what state and local governments can do. The conclusions from the pluralist studies point us in exactly the opposite direction; different elites dominate different issues and different institutions at different times. Also, conflicts often spill out and engage larger publics when competing elites seek to gain allies and legitimacy for their positions. And last, it is important to remember that both the elite model and the pluralist model are pure types; most communities are neither purely elitist nor purely pluralist, but most likely some mix of both.

Influences on State and Local Governments 1.2

Analyze the activities and influence of interest groups and lobbyists at the state and local levels.

ecause state and local governments are powerful institutions in the United States, it is important to understand what affects their actions. Similar to the federal level, individuals, parties, interest groups, elections, the beliefs and skills of political leaders, and media coverage can exert significant influence over state and local governments.

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Who Are the Constituents?

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Members of Dover C.A.R.E.S. (Citizens Actively Reviewing Educational Strategies) in Dover, Pennsylvania, examine a list of school board candidates. The group formed in response to the school board’s decision to require biology teachers to read a statement in class saying that Darwin’s theory of evolution is not fact and that alternate theories exist, including “intelligent design.”

The United States is a country of tremendous variation. The most populous state—California—has more than 37 million residents while the least populous state—Wyoming—has fewer than 600,000. The most populous county in the United  States  is  Los Angeles County, California, with a population of more than 9.8  million, while Loving County, Texas, has a total population of 82 and Kalawao County, Hawaii, has a population of 90. New York City has a population of 8.2 million people, while there are many small municipalities with populations of fewer than 1,000. The people of the United States are also highly mobile. Between 2010 and 2011, about one in nine Americans moved from one household to another, which is down from the 15 percent who moved within a one-year period in many recent years. This figure is still high in comparison to other countries. For example, one recent study reported the mobility rate in the United States to be three times higher than in the European Union.21 The United States puts few legal barriers in the way of people who want to move from one place—whether it is within a county or a state or from one state to another—to another. Recent college graduates are the most likely to move.22

OF the People

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Diversity in America

The Growing Diversity of State Populations he 2010 U.S. Census showed significant changes in both the number and location of minority residents. The percentage of whites declined from 76 percent of the population in 1990 to 64 percent in 2010, whereas the percentage of Hispanics increased from 9  to 16 percent, African Americans from 12 to 13 percent, and Asian–Pacific Islanders from 3 to 5 percent. Nearly 3 percent of residents refer to themselves as members of two or more races. The growing minority population in the United States is not equally distributed across the states and cities. More than three-quarters of all Hispanics live in the West or South, accounting for a quarter of the population in the West and 12 percent of the population in the South. In turn, more than half of all African Americans live in the South, making up more than 20 percent of the total population; whereas half of the Asian–Pacific Islander population live in only three states (California, New York, and Hawaii), and forty-five percent of all Native Americans live in the West. Although Hispanics are counted as a single minority group, more than 60 percent of Hispanics identified themselves in the 2010 census as Mexican, 9 percent as Puerto Rican, and 4 percent as Cuban. Similarly, the Asian–Pacific Islander population includes Asian Indians, Chinese, Filipinos, Japanese, Koreans, Native Hawaiians, and Samoans; Native Americans include members of American Indian tribes, including Cherokee, Navajo, Latin American Indian, Choctaw, Sioux, and Chippewa, as well as Inuit.

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QUESTIONS 1. As racial and ethnic “minority” groups become majorities in more and more states, do you expect these changes to increase or decrease political divisions in the United States? 2. What kinds of public policies might be most affected by the growing diversity of state populations?

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TOP TEN STATES BY MINORITY POPULATION IN 2010 Hawaii

77%

New Mexico

60%

California

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Texas

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Maryland

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Georgia

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Arizona

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Florida

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Mississippi

42%

SOURCE: U.S. Census Bureau, Statistical Abstract of the United States: 2012 (U.S. Government Printing Office, 2011), Table 18, http://www. census.gov/compendia/statab/2012/tables/12s0018.pdf and Sharon Ennis, Merarys Rios-Vargas, and Nora Albert, The Hispanic Population: 2010 (Washington: U. S. Census Bureau C201-BR-04, May, 2011).

This mobility contributes to political inaction, if only because voter registration occurs at the county level. When citizens move from one county to another, their voter registration needs to be updated; this is usually a rather simple task of informing the county clerk of the move. However, the process becomes a bit more complicated when moving from state to state, since each state has different requirements on how, where, and when one can register. Even beyond this, however, high levels of population mobility affect local political participation since it takes some time for newly arrived residents to learn the rules for participation in elections, who the contenders might be, and how the issues can affect the individual participant.23

The Maze of Interests A wide range of organized special-interest groups are typically very important at the state and local levels. Even industrial Rhode Island has farm organizations and rural Wyoming has trade unions. Influential economic pressure groups and political action committees, organized to raise and disburse campaign funds to candidates for public office, operate in the states much as they do nationally. They try to build up the membership of their organizations, lobby at state capitols and city halls, educate and organize voters, support their political friends in office, and fight opposing interests. Some interests dominate state and local governments because they represent the social and economic majorities of the area or because many people rely on a particular industry or corporation for their jobs and livelihood. The range and variety of these

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groups give politics in each state its own special flavor, excitement, and challenge: auto unions and manufacturers in Michigan, corn and hog farmers in Iowa, gas and oil companies in Texas and Louisiana, tobacco farmers in North Carolina and Virginia, poultry growers and processors in Arkansas, Microsoft in Washington State, the banking and finance industries in Delaware and New York, wineries in California, and tourism in Utah. If there is one set of groups that is present in nearly every state and locality, it is the various public school teachers’ unions and police and firefighter employee associations. These differences are often reflected in state policies. For example, state cigarette tax rates vary widely, from $4.35 per pack in New York to $0.30 per pack in Virginia.24 Lower cigarette taxes are found among other southeastern and border states, such as North Carolina, Tennessee, and Kentucky, where smoking is more common and tobacco farming is economically and politically significant. High cigarette taxes are found among states in the Northeast and Northwest, where neither of these conditions is true.25 Still, we should not exaggerate the power of interest groups. Because all groups have internal divisions, we have to be cautious about lumping all workers, all businesspeople, all teachers, or all Hispanics together. The union movement is sometimes sharply divided among truckers, machinists, public employees, and auto workers. The business community is often divided between big industrial, banking, and commercial firms on the one hand and small merchants on the other. Hispanic voters with different family backgrounds—some more closely associated with Cuba, some with Puerto Rico, and some with Mexico—may also express very different political preferences. Business interests are inevitably active in city and county politics and policy making.26 Business elites become active in long-range community planning, are keenly interested in who gets elected, and are ever watchful of changes in taxes. And local government officials depend on business to create jobs and generate revenue. Another type of interest group intimately concerned with public policy is the professional association. States license barbers, beauticians, architects, lawyers, doctors, teachers, accountants, dentists, and many other occupational groups. Such interest groups are naturally interested in the nature of the regulatory laws and the makeup of boards that do the regulating. Medical associations monitor licensing standards for physicians, nurses, and other health professionals, just as legal associations monitor licensing standards for their profession and the appointment of state and local judges.

Boston’s “Big Dig” completely changed the way drivers got around the city by burying a major highway in a 3.5-mile tunnel under downtown. It was the largest urban construction project in modern history, cost $14.6 billion, and took 30 years to complete.

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Other groups of citizens are also likely to organize to influence decisions in the state capital: those who are pro-life and those who are pro-choice; those who support laws permitting same-sex marriages and those who oppose such unions; those who want to keep illegal immigrants out of their state and businesspeople who rely on such workers; and those who want more wind farms to reduce reliance on nonrenewable energy and those who oppose them as damaging blights on our coasts and mountains. Environmental and antismoking groups, animal rights activists, and prison guards are also well organized. Most recently, advocates of low taxes and smaller government formed the “Tea Party” to cut state and local budgets. When we look across states, some patterns in interest group activity begin to emerge. Generally speaking, political scientists have found first, there are more interest groups—and so more lobbyists—in states that have larger economies. Second, interest groups are stronger in states where political parties are more weakly organized and weaker in states where political parties are better organized. Third, interest groups are stronger in states where the state government is relatively weak and weaker in states where the state government is strong, active, and professional. Finally, interest groups appear to be stronger in states with traditionalistic political cultures than states with either moralistic or individualistic political cultures.27 Recent studies have shown that interest groups show the greatest influence in state policymaking in Alabama, Florida, Hawaii, and Nevada. Interest groups are much less influential in Kentucky, Michigan, Minnesota, South Dakota, and Vermont. In these states interest group power is lessened by such things as a strong governor, powerful political parties, or greater competition between interest groups.28 Interest groups have developed various strategies for exerting their influence. The first of these is the direct strategy—directly influencing public officials or, in other words, lobbying. The second is the indirect strategy—attempting to influence the public and have them influence state officials. These latter public relations campaigns can take the form of such things as advertising on television or radio or contributing in support of events like the local 5 or 10K race.

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Lobbyists at the Statehouse Lobbyists are present in every state capital, and the popular conception is that they are there to guide through the legislature a small handful of bills their organization wants passed or to stop those their organization wants defeated. Compared with most members of Congress, state legislators typically have fewer professional staff and have shorter electoral careers, so they may rely more on lobbyists for information about public policies, problems, and political risks and opportunities.29 Because lobbying regulations in most states are more relaxed than at the federal level30 and media coverage of state politics is increasingly limited, lobbying is often neglected as a public issue.

DIRECT STRATEGIES The common belief is that lobbyists pressure state legislators into voting one way or another on bills by threatening their reelection bids, making campaign contributions, or even through illegal means like overt bribery. While there certainly are a number of such incidents in state legislative history, the more balanced assessment of lobbying is that it is “quite mundane.” “Lobbying, as it turns out, is mostly (though not solely) about providing information.”31 The typical lobbyist knows that the typical state legislator suffers from a low level of information on specific proposals coming before the state legislature, and the lobbyist is more than happy to provide the latest information on the effects that legislation would have on the legislator’s constituents. Beyond influencing the legislature, lobbyists at the state level also work with officials in the executive branch and even the judiciary in getting their point across to state governments. And lobbying activities are not simply limited to monetary contributions—one recent study of lobbying in two states showed that making monetary contributions did not even show up in the top ten lobbying techniques reported by lobbyists in Ohio and West Virginia.32 11

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Interest groups are spending more money now on state elections than ever before. In 2010, the total amount of money spent by interest groups on all state candidates and ballot questions totaled more than $3.5 billion—more than double the amount spent in 2000.33 In much the same way that it works at the national level, interest groups and their political action committees (PACs) contribute larger shares of their funding to incumbent state officials than they do to challengers. Money may not buy votes, but it does buy access. An increasing share of this money is now spent on battles over state initiatives and referenda. In November, 2008, for example, four ballot propositions (94, 95, 96, and 97) appeared on the California ballot. These provisions were fairly technical in nature but basically concerned whether certain Native American casinos in the state would be allowed to expand. More than $146 million was spent on this campaign. Major donors—those contributing $100,000 or more—favoring the propositions contributed more than $106 million of the total of more than $108 million in contributions, while major donors opposing the measures contributed nearly $40 million of the total $64 million in contributions. All four measures passed with more than 55 percent of the vote.34 In 2011, the state of Washington voted on an initiative to replace state liquor stores with privately-owned stores. A state record of more than $30 million was spent by both sides on this campaign—nearly $23 million in support and $7 million in opposition. One supporter of the initiative—Costco—donated more than $20 million to the campaign. The initiative passed with more than 58 percent of the vote.35

INDIRECT STRATEGIES Interest groups can be effective in influencing state officials by turning ordinary citizens into lobbyists for their positions. This is done through indirect strategies. In recent years, the use of indirect strategies has risen greatly. “While the use of direct lobbying techniques is still more widespread than the use of indirect techniques, it is clear that indirect techniques are now part and parcel of the typical state lobbyist’s tool kit. Although indirect lobbying has been around literally for centuries, it has exploded in the states since the mid-1970s.”36 Indirect strategies involve use of the media, email campaigns, letter writing, and so forth. Typically, an interest group will develop a paid commercial for television that informs the public of its stance on an issue; these commercials often look like public service announcements. They attempt to convey to the public that the position the interest group is advocating is also in the interest of the general public. The ads often close with a call for the public to “contact your state representative” on this issue, sometimes providing contact information. Even though news coverage of state and local government has declined in recent years, interest groups still work to create media events that are covered by the news media, issuing press releases and writing op-ed columns that run in local newspapers. State officials sometimes give more credence to letters, e-mails, or phone calls from ordinary citizens expressed in their own words, than they do to approaches made by paid lobbyists. Knowing this, interest groups stimulate direct citizen contact campaigns to influence state officials. Political scientists who study state lobbyists have categorized them into several different types. Contract lobbyists are what can be termed “hired guns”; they work for whoever hires them. Many have experience working in state government as elected, appointed, or professional officials.37 Some lobbyists—called in-house lobbyists—work for only one organization as executive director or manager. They typically have specialized knowledge of one or a few policy areas such as health care, transportation, or land use. A third type of lobbyist is the volunteer or amateur, who is often a member of the organization on whose behalf he or she is working. While it is tempting to conclude that large corporations with full time, highly paid lobbyists wield more influence than do organizations who cannot afford to pay for lobbying expertise, the evidence is actually mixed. While it is accurate to state that contract and in-house lobbyists have the political savvy, professional expertise, and personal contacts to be influential as lobbyists, some groups use volunteer lobbyists, “thinking that state government officials are particularly responsive to the demands of ordinary citizens.”38 12

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Former Illinois Governor Rod Blagojevich was sentenced to 14 years in prison after being convicted in federal court of corruption charges for attempting to sell his appointment to the Senate seat formerly held by President Barack Obama.

Aggressive lobbying—lavish spending on dinners and parties and even outright bribery—on the part of some unscrupulous organizations led to corruption scandals in several states in the 1990s and early 2000s. In response to prominent scandals,39 several legislatures enacted comprehensive financial disclosure laws, and today, most state governments are more open, professional, and accountable than in the past.40 Now, five states ban lobbyists from contributing to campaigns at any time, and 22 states prohibit contributions during a legislative session. Four states ban gifts of any sort to state officials—this is sometimes called the “no cup of coffee” rule—and approximately half of the states prohibit gifts to public employees above a certain monetary value, ranging from $3 (Iowa) to $500 (Texas).41 Nevertheless, ethics problems continue to plague state governments. For example, in 2012, South Carolina Lieutenant Governor Ken Ard resigned from office after he was charged with several counts of misusing campaign funds,42 and New York State Senator Carl Kruger pled guilty to federal bribery and fraud charges after being caught on an FBI wiretap.43

Participation Patterns in Local Government 1.3

Assess the level and consistency of involvement of the major participants in local communities.

eople in the United States generally have the most trust and confidence in local government and trust state government more than national government. Over time, trust in all levels of government has declined. From 2002 through 2009, the number of people expressing a great deal or fair amount of trust in the national government in the United States has declined 18 percentage points (from 68 percent to 50 percent); those expressing similar levels of trust in state government has declined 10 percentage points (from 65 percent to 55 percent); and at the local level, the numbers have gone down five percentage points (from 67 percent to 62 percent).44

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Citizens may trust local government the most, but they generally take less interest in, vote less often in, and are less informed about their local governments than about the national government. Although decisions about where to locate a garbage dump or a prison or how to deal with police brutality can arouse considerable attention, most of the time, local governments are preoccupied with relatively noncontroversial routine matters, such as keeping the roads in shape, providing fire and police services, attracting businesses that can create more jobs, or applying for state and federal financial assistance. In addition, people in the United States can “vote with their feet” when it comes to local politics—rather than expending the time and energy to address a local political issue, many people have historically resorted to moving. If the schools are deteriorating, people who can afford to can move to another community in which the schools are better. If the crime rate is too high, one can seek to live in a community where the crime rate is lower. As the economist Albert Hirschman wrote many years ago, “the very vastness of the country combined with easy transportation make it far more possible for Americans than for most other people to think about solving their problems through ‘physical flight’ than either through resignation or through amelioration and fighting in situ the particular conditions into which one has been thrown.’”45 Local communities want to keep their tax rates down and promote their cities as “nice places” in which to live, work, and raise families. Mayors and city officials generally try to avoid controversy and criticism that will divide a community. Although they do not always succeed, they go to considerable lengths to be reasonable and work for the good of the community. Few aggressively seek to alter the status quo. They do not, as a rule, try to promote equality by redistributing various resources to needier citizens. Local officials tend to believe that this is the task of national or state authorities—if they think it should be done at all. Neighborhood groups sometimes become engaged in protecting their neighborhoods and petitioning for improvements. One concern that often activates them is the possibility that “undesirable” facilities—such as drug treatment clinics, prisons, dumps, or homeless shelters—may be located in their neighborhood. Although attendance at local government meetings is usually low, the announcement of a landfill or a prison construction project often stimulates the reaction that local officials call NIMBY, an acronym for “Not In My Back Yard!” This response can have the perverse effect of forcing facilities such as airports to remain in densely populated areas because it is too difficult to find alternative sites for them. Nevertheless, economic development often outweighs NIMBY because of the jobs it produces. In 2009, for example, when President Obama announced a plan for sending military detainees held by the U.S. government at its Guantanamo Bay facility to an underutilized facility in Thomson, Illinois, local officials touted the nearly 3,000 jobs the move was expected to create for the local community.46 Illinois’s governor, Pat Quinn, reportedly suggested the move, knowing that region of his state faced an unemployment rate of more than 10 percent at the time.

The Role of Local Media Most communities have only one daily newspaper (and associated Web site), and small communities only get a weekly edition. Some newspapers and local radio and television stations do a good job of covering city and county politics, but this is the exception rather than the rule. Reporters assigned to cover local politics are often inexperienced, yet they provide the only news that citizens get about their city council or zoning board. Even the best of them have difficulty conveying the full complexities of what is going on in a column or two of newsprint. Strong coverage is often undermined by cozy relationships with elected local officials. Sometimes, the owners or editors are social friends or golfing buddies of local officials. Friendships and mutual interests develop, and close scrutiny of what goes on in city hall takes a back seat to boosterism. In effect, “newspapers boost their hometown, knowing that its prosperity and expansion aid their own. Harping on local faults, 14

investigating dirty politics, revealing unsavory scandals, and stressing governmental inefficiencies only provide readily available documentary material to competing cities.”47 In recent years, many newspapers in the United States have experienced tremendous financial problems. The 150-year old Rocky Mountain News, the smaller of Denver’s two daily newspapers, ceased publication in 2009. Denver’s larger newspaper—the Denver Post—filed for bankruptcy protection later the same year but did not cease publishing. Companies publishing the Philadelphia Inquirer, the Chicago Sun Times, the Star Tribune of Minneapolis, and the New Haven Register also filed for bankruptcy in 2009 and 2010. Other newspapers in medium-sized or large cities have reduced daily publishing and delivery or shifted completely to online publication. Newspapers in smaller cities—those commonly called community newspapers—appear to be doing better financially than are their larger compatriots.48 Editors and station managers recognize that their readers, viewers, or listeners are more interested in state or national news, and especially in sports, than in what is going on at municipal planning meetings or county commission sessions. Also, although we have dozens of ways to find out about Congress and the White House, we usually have fewer sources for stories about the mayor or sheriff or school board. Many local governments have established Web sites to make information more accessible to residents, but the quality of the sites varies greatly, and many are not particularly useful in helping citizens understand and participate in local government.49

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Grassroots Apathy Voter turnout in local elections is substantially lower on average than turnout in most state and national elections. Much of the difference in turnout stems from the fact that a large number of local governments hold elections separate from state and

BY the People

Making a Difference

Holding State Governments Accountable e all want our state governments to perform well and operate efficiently, but how can we measure their performance and track their progress? The Government Performance report produced by the Pew Center on the States and Governing magazine graded all 50 states in how their governments manage themselves in four key areas: people, information, money, and infrastructure. States receive performance grades of A through F in each area, plus an overall grade.* How does your state stack up compared to others? The overall national average was a B-. Three states— Utah, Virginia, and Washington—received the highest grade awarded (A-) for their innovations to manage information about state services, retain state workers, and budget for short- and long-term needs. For example, Alabama has a single Web site where citizens can go to find information on all of the social services provided by the state,† and Washington produces six-year budget forecasts that are widely available and updated every quarter. States receiving low grades did not manage their resources well or lacked sufficient communication and transparency. Some state workers in Rhode Island

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*See

are still working on typewriters rather than computers, and New Hampshire, which received the lowest grade awarded (a D+) “has such weak data-sharing systems that it doesn’t know how much it spends each month.”‡ States differ in how they manage their operations. However, studies like this of the best and worst practices employed by states show citizens how their states are performing, and they provide opportunities for states to learn from each other. Find out whether your state makes the grade. Knowing what areas your state excels in and what areas it needs to improve is the first step to getting involved and making a difference.

QUESTIONS 1. How should citizens measure government performance? How do the factors we use reflect our priorities for government performance? 2. What can citizens do to encourage stronger and more efficient performance from their government?

http://www.pewcenteronthestates.org/gpp_report_card.aspx

†http://camellia.alabama.gov/default.aspx. ‡Pew

Center on the States, “Grading the States, 2008” p. 27. http://www.pewcenteronthestates.org/uploadedFiles/Grading-the-States-2008.pdf.

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federal elections; turnout is some 15 percentage points higher when cities and other local governments hold their elections at the same time as voters select governors or presidents.50 Some local elections only have one candidate, and voting turnout is lower when no competition exists for some of the races on a particular ballot.51 And some three-fourths of local governments in the United States hold nonpartisan elections in which candidates run for office without party labels being listed on the ballot. Generally speaking, nonpartisan elections show lower turnout than do partisan elections, since many voters use the party label as a cue in deciding who they will support in an election.52 Voter apathy about local politics may also depress turnout. Charter revision and taxation often galvanize only those directly affected by the new taxes or regulations. Even New England town meetings have difficulty getting people to participate— despite the fact that decisions made at these meetings have major consequences for local tax rates and the quality of the schools, the police force, and the parks and recreational areas. Thomas Jefferson once proclaimed the town meeting to be the noblest, wisest instrument yet devised for the conduct of public affairs, but today, most towns find that only a very small percentage of the population has the time, interest, or ability to participate in local government meetings.53 Although apathy may be widespread under most circumstances, issues emerge from time to time that draw intense public interest—and that increases participation in local governments. People become politically active when issues become intense, especially issues they think will affect their families, property, and deeply held values, such as severe cuts in school budgets, sharp increases in taxes, or the building of an “undesirable” facility. Most of the time, large groups of citizens may constitute less of a real, concrete presence in local government decision making than a threat to mobilize if and when officials make unpopular choices.

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Civic Initiatives in Communities Because participation at the local level is more limited, the impact an individual can have is likely even greater than at the state or national level. States such as Oregon and Minnesota seem to encourage a climate of innovation and civic enterprise, and a wider look at the United States finds buoyant, optimistic, creative problem solvers in nearly every corner of the nation. The Internet may make it easier for these “innovators” to network and share ideas. One particularly ambitious use of the Internet for civic awareness is the Minnesota e-democracy project. The Web site hosts more than fifty forums on state and local issues in Minnesota where registrants can engage in discussion and debate. Issue forums have recently discussed banning cell phone use while driving, various local development projects, and locating sites for community gardens.54 Enterprising local activists have advocated and implemented cost-saving energy programs, environmental cleanup campaigns, recycling and solar energy initiatives, job training centers, AIDS prevention efforts, housing for the elderly, tutoring for the illiterate, housing for the poor, and hundreds of other problem-solving and opportunity-enhancing community efforts.55 In almost every case, they create partnerships with elected officials at city hall, sometimes with the Urban League or Chamber of Commerce, and often with local foundations and business corporations. Sometimes, it takes a tragedy to get community groups mobilized. Such an event happened in Boston when gang members burst into the funeral of a young man. “In the presence of the mourners, the gang killed one of those in attendance,” writes the Reverend Eugene Rivers of the Azusa Christian Community:

Not all citizens are apathetic. These students from the University of Maryland volunteered to work on the Musician’s Village in New Orleans.

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That brazen act told us we had to do more. Now. That young man’s death galvanized us, and soon the Ten Point Coalition was reaching out to at-risk youth. Our mission was to pair the holy and the secular, to do whatever it took to save our kids. The black churches worked hand-in-hand with the schools, courts, police, and social service agencies. We called on anyone and everyone who had the means to help our children. We formed programs for teens, neighborhood watches, and

patrols… We established ourselves in the neighborhood, standing on the same street corner where the drug dealers once stood. We tracked down the thieves, dealers, and gangs. We tried to give people a chance, but if they wouldn’t take it, we staked our claim and ran them out of our neighborhood.56

The aftermath of the devastation produced by hurricanes Katrina and Rita in 2005 to the Gulf Coast also revealed the importance of community groups. Local governments varied greatly in their effectiveness in dealing with the disasters, but the consensus among close observers was that “nonprofit, community-based, and faith-based organizations as well as individual volunteers… responded to the rebuilding challenge beyond all expectation.”57 Similarly, local community organizations provided much needed relief after Superstorm Sandy hit the northeast in October 2012.58 Debates persist about how to solve social, economic, and racial problems in our large metropolitan areas. Some people contend that government cannot undertake this task and that private initiatives will be more effective. Others insist that state and local governments are best suited to deal with these challenges. Still others believe that imaginative public–private collaboration is needed to fashion the strategies and mobilize the resources needed to revive cities and bring about greater opportunity. Whatever the merits of such contending interpretations, it is clear that neighborhood organizations and spirited civic renewal are critical to the vitality of local government.59

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Challenges for State and Local Governments 1.4

Evaluate the challenges facing state and local governments.

ost states and communities are confronting difficult times. People want better schools, a clean environment, and safe roads and bridges. Many of our inner-city governments and school systems are in financial distress. The cycle of poverty in many inner cities remains one of the greatest threats to the economic health of the country. Because cities rarely have the funds to mount major economic development plans, the responsibility usually falls to the states or federal government. Community development banks, “empowerment zones,” Head Start, charter schools, and national service (AmeriCorps) programs have all been tried in an attempt to bring residents of depressed inner cities into the economic mainstream. However, these efforts have been inadequate, and support for them must compete with other demands on financially pressed states and localities. Meanwhile, federal officials are proposing cuts in many of the domestic programs that aid state and local governments.60 At the same time, state and local governments have been hit hard by the recession that began in 2008. State governments fund their activities mainly on the basis of state income taxes (seven states do not have a state income tax) and sales taxes (five states do not have a state sales tax), while local governments raise revenue primarily through the property tax. Each of these sources of revenue has been badly hurt by the recession, although by 2011, both state income tax and sales tax revenue had begun to recover. National unemployment rates remained high during this period. High unemployment directly reduces state income tax revenue, but it also reduces sales tax revenue as people who lose their jobs—or are worried about losing their jobs—reduce their spending. And if retailers reduce their staffs as a result of reduced sales, income tax revenue is reduced even more. More importantly, in many states and localities, unsold, vacant homes depress the value of surrounding housing, leading increased numbers of people to default on their home mortgages as they find they are “under water”—owing more on the mortgage than the house is worth on the open market. Mortgage defaults lead to more vacant homes,

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depressing local housing markets even more. From its peak in 2006, the value of housing in the United States declined nearly 30 percent by 2011, with much larger declines in large urban areas like Los Angeles (36 percent), Chicago (38 percent), and MiamiFort Lauderdale (55 percent).61 Housing prices began to increase again in 2012, but the increases were uneven across major metropolitan areas with some still losing value.62 These reductions in housing values have reduced property tax revenue that local governments depend on to fund their activities. Property tax revenue is generally slower to recover from recessions than are income or sales tax revenues. With the reduction in all three of these sources of revenue, however, state and local governments are having to make very difficult decisions on which programs to continue to fund and which to reduce or eliminate completely. In response to financial problems at the state and local level, Congress passed the American Recovery and Reinvestment Act of 2009, which included billions for road and highway construction and other state and local projects. But this temporary infusion of federal funding ended in June 2011.63 These broad economic pressures involve a variety of public views that will be addressed in the chapters that follow: ●

People want more services but at the same time would like to see their taxes cut. Voters in many states and communities have enacted spending limits that constrain growth in public budgets, yet state and local governments struggle with many long-run problems in raising revenues to pay for programs the public demands— problems such as shifts to Internet purchasing and the consumption of services rather than goods, trends that make it harder for state and local governments to collect sales taxes. On the spending side, states are further squeezed by hard-tocontrol increases in costs, such as health care and energy prices and pensions for retired government workers.64

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Intense political divisions over new immigrants exist in many communities. As our nation has become more diverse, most U.S. citizens have learned to appreciate the strength that comes from multiple cultures and races, and many of our businesses have come to rely on immigrant labor, both legal and illegal. However, in many communities where foreign-born residents have settled in large numbers, longtime residents have resented the changing racial, linguistic, and ethnic composition of their communities and have pushed state and local officials to stem or even reverse the growth of immigrants. New immigration laws passed in Arizona in 2010 reignited a national debate on how all levels of government might address

Detroit, Michigan has one of the highest rates of abandoned buildings of any large U.S. city.

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FOR the People

Government’s Greatest Endeavors

Improving Access to Information ometimes, the hardest part of interacting with a government is knowing where to start. States are using the Internet to help make that first step easier. States have made tremendous strides in providing their citizens with more information about their state’s government and access to government agencies and officials. The state of Nebraska provides a good example. The official Web site of the state provides users with instant access for citizens, businesses, education, those relocating to the state, and tourists.* From the main page, users can check on the status of their income tax refund, renew their license plates, or apply for financial aid to any of the state’s colleges and universities. Citizens can also search the campaign contribution records for all public officials or track the use of federal funds received as part of the American Recovery and Reinvestment Act of 2009 (the federal stimulus program). Another innovation is the link to what the state calls Ask a Librarian. This link takes you to the Government Information Ser vices of the Nebraska Librar y

S

*See

Commission. Among the features on this Web page is a live chat window where you can ask a librarian on staff any question you have, and the librarian will help you track down an answer. Inquiring with the Reference Desk about the history of the program generated a response within about two minutes reporting that the service has been available since 2006 and that it gets used daily. Efforts like this demonstrate how at least some states go the extra mile to try to serve their citizens.

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QUESTIONS 1. In a state where citizens have easy access to information about government, which groups or interests do you think would be advantaged, and which would be disadvantaged? 2. How might the development of a Web site like Nebraska’s help state and local governments address some of the current challenges they face that are discussed in this chapter?

http://www.nebraska.gov

this problem. In June, 2012 the United States Supreme Court ruled much of the Arizona immigration law unconstitutional, although the court did allow Arizona law enforcement officers to continue to check the immigration status of those who were stopped for other offenses.65 ●

Much of the nation’s infrastructure needs to be repaired or rebuilt. The collapse of the Interstate 35W bridge in Minneapolis in 2007 and the failure of the levees in New Orleans in 2005 highlight the poor conditions of many of the nation’s roads, highways, bridges, dams, levees, water and sewage systems, and other elements of our infrastructure. But the enormous cost of repairs or replacements is well beyond the current fiscal capacities of state and local governments.

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The costs of corrections and prisons have skyrocketed in recent years, driven by the rapid growth of prison populations as well as the costs of caring for an aging population of prisoners. In 2011, some $48 billion, or about 5 percent of state expenditures, went to corrections.66 Many states are trying to cut costs with new policies and programs, including stronger efforts to divert inmates to rehabilitation facilities; “good-time” credits to low-risk offenders who would then be allowed to shorten their prison terms; shorter sentences at the discretion of judges; more effective systems of parole and probation; and greater use of privately run (and often outof-state) prison facilities.

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Poverty in the inner cities persists. We have extremes of rich and poor within metropolitan regions, and many feel that wealthier suburbs often turn their backs on the problems and poverty of the older cities. Indifference to these inequalities and lack of opportunities undermine a sense of community and fairness—and limit the nation’s capacity to develop a skilled and internationally competitive workforce.

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Education needs improvement. Parents are demanding better education and more parental involvement. Communities have been experimenting with educational choice and competition, school vouchers, charter schools, expanded hours, and prekindergarten programs. Improving the public schools is necessary, but their resources and the salaries of teachers are often too low to attract and retain the best-qualified educators.

Harlem Children’s Zone is a nonprofit organization that runs Promise Academy Charter Schools, designed to engage families and communities in the development and education of children.

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Environmental regulation, land use, and recycling remain major challenges at the local level. Every city and state wants economic growth and economic opportunities for its workers and businesses, but many forms of economic development impose costs in terms of the quality of air, water, landscapes, and health. These pressures are particularly visible in the debate about global climate change, which involves a variety of proposals for promoting renewable sources of energy, by creating multistate agreements to cut emissions from power plants, and by adopting California’s greenhouse-gas limits for cars.

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Health care costs and delivery are challenges to all levels of government. Health care costs have been rising rapidly for several years, while at the same time citizens have faced greater obstacles to gaining access to care. Some states have responded by developing programs to cover the growing number of uninsured, but some are also fighting the President Obama’s 2010 health care reforms. Alabama, Arizona, Ohio, Oklahoma, and Wyoming passed constitutional amendments barring the requirement for individuals to purchase health care under “Obamacare,” while other states did the same thing through state law. Seventeen states brought suit against the law. In June, 2012 the Supreme Court delivered a complicated opinion in the states’ suits against the Affordable Care Act. The Court decided that while Congress could not impose an individual mandate to purchase health insurance, it could use its taxing authority to penalize individuals for not purchasing health insurance. At the same time, the Court found that Congress could not require states to expand Medicaid coverage to Americans under the age of 65 earning less than 133 percent of the federal poverty line (see You Will Decide).

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Our political system does not rely exclusively on one level of government to take up these formidable challenges. If leadership is lacking at the federal level for a time, it may be found in at least some of our state and local governments, as citizens bring their concerns to whichever governments are willing to hear them and take action. Local governments led the way on such innovations as reinventing government, states led on health insurance reform, and the federal government led on changing welfare policy. Any level of government can come up with ideas in a federal system, and those ideas can be adopted by others at the same level or across different levels. Leadership can come from anywhere.

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Review the Chapter Who Governs? 1.1

Contrast the functions of federal, state, and local governments, and evaluate the theories of decision-making in local governments, p. 4.

State and local governments face many of the most critical domestic and economic issues facing the United States and administer most public programs, including those funded in large part by the federal government, and most interactions between citizens and government involve employees of state and local governments. Studies of states and communities have investigated how formal government institutions, social structure, economic factors, and local traditions interact to create a working political system. Some studies find that a power elite dominates; others find diverse interest groups competing for influence. These different findings may reflect, in part, differences in research methods.

Influences on State and Local Governments 1.2

Analyze the activities and influence of interest groups and lobbyists at the state and local levels, p. 8.

Special-interest groups operate in every state and locality, but their composition and influence vary a great deal, and the politics of some states and localities are dominated by a small number of major, usually economic interests. In some ways, the types of interest groups found at the state and local levels are similar to what we find at the national level, as are their activities and paths to influence. But the influence of groups is often greater at the state and local levels, as there is often less competition between diverse groups and as legislators typically have fewer sources of alternative information.

Participation Patterns in Local Government 1.3

Assess the level and consistency of involvement of the major participants in local communities, p. 13.

Although local governments command more public trust and are widely viewed as “closer to the people” than the national government, voting and other forms of participation at the local level are low. Nonetheless, local civic action often does occur, and it frequently produces innovative and flexible approaches to problems in education, the environment, crime and violence, and recovery from natural disasters.

Challenges for State and Local Governments 1.4

Evaluate the challenges facing state and local governments, p. 17.

State and local governments face severe challenges now and in the near future—in raising sufficient revenues, resolving conflicts over recent immigrants, rebuilding infrastructure, paying the costs of a fast-growing prison population, alleviating urban poverty, providing quality education, solving environmental problems, and ensuring that all residents have access to good-quality and affordable health care.

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Learn the Terms gross domestic product (GDP), p. 5 social stratification, p. 7

power elite, p. 7 pluralism, p. 8

Test Yourself MULTIPLE CHOICE QUESTIONS

1.1 Contrast the functions of federal, state, and local governments, and evaluate the theories of decision-making in local governments. Which of the following accurately defines social stratification? a. direct democracy in small communities b. the division of government leaders into specialized policy areas c. the division of people in a community by social or economic class d. the fiscal relationship between local, state, and federal governments e. the idea that local governments are creatures of the state

1.2 Analyze the activities and influence of interest groups and lobbyists at the state and local levels. The most common activity performed by lobbyists in state capitals is a. providing funding for legislative reelection campaigns. b. filing friend of the court briefs in state court trials. c. providing information to state legislators concerning bills they are voting on. d. giving cash to individual state legislators to influence their votes. e. contacting a legislator’s constituents to tell them how he or she voted on legislation.

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1.3

Assess the level and consistency of involvement of the major participants in local communities. In which of the following types of local elections would you expect to have the lowest voter turnout? a. one held at the same time as a presidential election b. one in which party labels were listed on the ballot c. one in which the candidate on the ballot was uncontested d. one in which the voters knew a great deal about the issues and candidates running e. one held at the same time as the gubernatorial election

1.4 Evaluate the challenges facing state and local governments. Which of the following states has successfully enacted a program to provide its citizens with universal health insurance? a. Florida b. Kansas c. California d. Massachusetts e. Texas

ESSAY QUESTION Of the eight challenges to state and local government that end this chapter, which do you think is the most important? Write an essay making the case why a newly elected governor of your state or mayor of your city would want to address this challenge before he or she went on to addressing some of the other challenges mentioned. How successful do you think your new governor or mayor might be in dealing with this challenge after his or her first term in office?

Explore Further IN THE LIBRARY Peter L. Bernstein, Wedding of the Waters: The Erie Canal and the Making of a Great Nation (Norton, 2005). Buzz Bissinger, A Prayer for the City (Random House, 1997). Frank J. Coppa, County Government (Praeger, 2000). Robert Dahl, Who Governs: Democracy and Power in an American City (Yale University Press, 1961). E. J. Dionne Jr., Ed., Community Works: The Revival of Civil Society in America (Brookings Institution Press, 1998). Larry N. Gerston And Terry Christensen, Recall! California’s Political Earthquake (Sharpe, 2004). Virginia Gray And Russell Hanson, Eds., Politics in the American States: A Comparative Analysis, 10th ed. (CQ Press, 2012). Valerie C. Johnson, Black Power in the Suburbs (State University of New York Press, 2002). Andrew Karch, Democratic Laboratories: Policy Diffusion Among the American States (University of Michigan Press, 2007). V. O. Key, Jr., Southern Politics in State and Nation (Alfred A Knopf, 1949; reprinted by the University of Tennessee Press). Lynda W. Powell, The Influence of Campaign Contributions in State Legislatures (University of Michigan Press, 2012). Douglas W. Rae, City: Urbanism and Its End (Yale University Press, 2003). Jon C. Teaford, The Rise of the States ( Johns Hopkins University Press, 2002). Susan W. Thrane And Tom Patterson, State Houses: America’s 50 State Capitol Buildings (Boston Mills Press, 2005).

Joseph F. Zimmerman, The New England Town Meeting: Democracy in Action (Praeger, 1999).

ON THE WEB www.pewcenteronthestates.org/ The Pew Center for the States nonprofit organization conducts research on state government performance and numerous state policy issues. www.statelocalgov.net/ State and Local Government on the Net provides a directory of official state, county, and city government Web sites. www.loc.gov/rr/news/stategov/stategov.html Library of Congress State Government Page provides information and government publications from all 50 states. http://sppq.sagepub.com The official Web site of the academic journal State Politics and Policy Quarterly, which publishes research articles on state politics. www.governing.com/ Governing Magazine provides news articles and analysis of political and policy issues facing the states. www.followthemoney.org The Web site of the National Institute on Money in State Politics, which is engaged in a multi-year study of state campaign financial contributions.

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2 American Federalism he relationship of the national government to the states has been the subject of intense debate since the founding.1 In 1787, members of what would become the Federalist Party defended the creation of a strong national government. Their rivals, the Anti-Federalists, warned that a strong national government would overshadow the states. The debate over which level of government best represents the people continues to this day. State governments often complain that the national government is either taking over responsibilities that belong to them under the Constitution’s Tenth Amendment, which reserves to them all powers not given to the national government, or controlling too much of what they do. Yet, in policy areas such as civil rights, educational opportunities for people with disabilities, and handgun control, the states have been slow to respond, and the national government has taken steps to deal with these issues. At the same time, states retain enormous authority under the Constitution to regulate life within their borders. Working with the local governments they create, states police the streets, fight fires, impose their own taxes, create most of the laws that govern their citizens, define the meaning of marriage, set the rules for elections and register voters, run the public schools, and administer most of the programs to help the poor, even when the money for those programs comes from the national government. This broad scope begs the question, where does the

T

national government end and state government begin? This question involves a host of questions that involve how far states can go in drafting their own laws and how aggressive they should be in enforcing national laws. Under Article I, for example, the Framers gave Congress the power to set the rules regarding naturalization, which is the process by which immigrants are given U.S. citizenship and the rights that go with it.

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Interpret the definitions of federalism, and analyze the advantages and disadvantages of the American system of federalism, p. 26.

Differentiate the powers the Constitution provides to national and state governments, p. 32.

Assess the role of the national courts in defining the relationship between the national and state governments, and evaluate the positions of decentralists and centralists, p. 38.

Evaluate the budget as a tool of federalism, and its impact on state and local governments, p. 42.

Describe the relationship between the national and state governments and the challenges for federalism, p. 47.

Alabama’s tough immigration law requires police, schools, and hospitals to ask citizens for proof of their citizenship, even if the ones providing the proof are in grade school. One of the parents of this Alabama student is a U.S. citizen, while the other is an undocumented immigrant, meaning that one of her parents could soon be deported if the Alabama law remains in force.

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federalism A constitutional arrangement in which power is distributed between a central government and states, which are sometimes called provinces in other nations. The national and state governments exercise direct authority over individuals.

In recent years, however, many states have passed laws that challenge the national government’s supremacy in setting rules covering undocumented immigrants who reside in the U.S. illegally. With the nation and most states suffering from high unemployment starting in 2008 and continuing to this day, some states have argued that undocumented immigrants are taking jobs that would go to U.S. citizens. They have passed laws that put tight restrictions on state benefits such as public education and college tuition benefits for the children of illegal immigrants. Although some of these laws have been declared unconstitutional by the national courts, states continue to try new ways of reducing illegal immigration. In 2006, 84 immigration bills were enacted by state legislatures and signed into law; by 2010, the number had climbed to 364, with further increases in 2011.2 In June 2011, for example, Alabama enacted one of the most restrictive immigration laws in the nation. Under the law, illegal immigrants are considered state criminals who are subject to arrest and possible imprisonment. Most significantly, the law requires that public schools must check the immigration status of all their students. Under the provision, school children were required to reveal the immigration status of their parents. In revealing their own immigration status, students had little choice but to tell school administrators whether their parents were in the United States legally. Although any child born in the United States is automatically deemed a citizen under national law and the Constitution, some Alabama school children were born to illegal immigrants. As a result, many parents kept their children home on October 1 when the law took effect, and some fled the state to avoid the law.3 The same law also contained a provision that required residents of mobile homes to prove their legal status before renewing their annual home registration tags. Even as the Alabama law was going into effect, an equally tough Arizona law was moving toward the Supreme Court. After hearing arguments in April, a 5 to 3 majority declared that the national government, not the states, had the “broad, undoubted power over the subject of immigration and the status of aliens.” The national laws were supreme to any state laws,rendering most of Arizona’s law unconstitutional. At the same time, the Court did permit Arizona to implement its “show me your papers” provision, which gives police the authority to ask drivers for their citizenship papers when stopped for other reasons. The Court ruled that the provision was a constitutional exercise of state powers. It is still not clear how much of Alabama’s law will survive further tests based on the Court’s decision. For now, Alabama says it is still in force.4 In this chapter, we first define federalism and its advantages and disadvantages. We then look at the constitutional basis for our federal system and how court decisions and political developments have shaped, and continue to shape, federalism in the United States. Throughout, you should think about how you influence the issues you care about, even in your local city council or mayor’s office. The Constitution clearly encourages, and even depends on, you to express your view at all levels of government, which is why action in a single state can start a process that spreads to other states or the national government.

Defining Federalism 2.1

Interpret the definitions of federalism, and assess the advantages and disadvantages of the American system of federalism.

ars have been fought over what federalism means in part because the term itself is laden with ideological interpretation.5 Federalism, as we define it in nonpartisan terms, is a form of government in which a constitution distributes authority and powers between a central government and smaller regional governments—usually called states or provinces—giving to both the national and the state governments substantial responsibilities and powers, including the power to collect taxes and to pass and enforce laws regulating the conduct of individuals. When we use the term “federalism” or “federal

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system,” we are referring to this system of national and state governments; when we use the term “federal government” in all other chapters of this book, we are referring to the Congress, presidency, and judiciary created under the U.S. Constitution. The mere existence of both national and state governments does not make a system federal. What is important is that a constitution divides governmental powers between the national government and state governments, giving clearly defined functions to each. Neither the central nor the regional government receives its powers from the other; both derive them from a common source—the Constitution. No ordinary act of legislation at either the national or the state level can change this constitutional distribution of powers. Both levels of government operate through their own agents and exercise power directly over individuals. Constitutionally, the federal system of the United States consists of only the national government and the 50 states. “Cities are not,” the Supreme Court reminded us, “sovereign entities.”6 This does not make for a tidy, efficient, easy-to-understand system; yet, as we shall see, it has its virtues. There are several different ways that power can be shared in a federal system, and political scientists have devised terms to explain these various, sometimes overlapping, kinds of federalism. At different times in the United States’ history, our system of federalism has shared power based on each of these interpretations: ●

Dual or “layer-cake” federalism is defined as a strict separation of powers between the national and state governments in which each layer of has its own responsibilities, and reigns supreme within its constitutional realm. Dual federalism was dominant from the 1790s until the 1930s.

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Cooperative or “marble-cake” federalism is defined as a flexible relationship between the national and state government in which both work together on a variety of issues and programs.7 Cooperative federalism was dominant from the 1930s through the 1970s.

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Competitive federalism is defined as a way to improve government performance by encouraging state and local governments to compete against each other for residents, businesses, investment, and national funding.8 Competitive federalism has coexisted with other definitions of federalism since the 1980s.

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State and local governments are responsible for policing the streets but not for enforcing federal laws. Still, they often work with national agencies such as the Federal Bureau of Investigation and the Drug Enforcement Administration. This kind of joint action is an example of cooperative federalism.

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unitary system

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Permissive federalism is defined as a strong national government that only allows, or permits the states to act when it decides to do so. Although federalism generally assumes that the national and state governments will share power, permissive federalism argues that the power to share belongs to the national government, and national government alone.9 Permissive federalism has been dominant on specific issues such as civil rights since the 1960s.

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Coercive federalism is also defined as a strong national government that exerts tight control of the states through orders or mandates—typically without accompanying financial resources. If states want federal grants, they must follow the mandates. Coercive federalism is sometimes called centralized federalism, which focuses on the national government’s strong voice in shaping what states do. Coercive federalism has also been dominant on specific issues such as public education and the environment since the 1960s.

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New federalism is defined as a recent effort to reduce the national government’s power by returning, or devolving responsibilities to the states. It is sometimes characterized as part of the devolution revolution discussed later in this chapter. The new federalism has been seen as a modern form of dual federalism based on the Tenth Amendment, and was first introduced by President Richard Nixon in 1969.

A constitutional arrangement that concentrates power in a central government.

confederation A constitutional arrangement in which sovereign nations or states, by compact, create a central government but carefully limit its power and do not give it direct authority over individuals.

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Alternatives to Federalism Among the alternatives to federalism are unitary systems of government, in which a constitution vests all governmental power in the central government. The central government, if it so chooses, may delegate authority to constituent units, but what it delegates, it may take away. China, France, the Scandinavian countries, and Israel have unitary governments. In the United States, state constitutions usually create this kind of relationship between the state and its local governments. At the other extreme from unitary governments are confederations, in which sovereign nations, through a constitutional compact, create a central government but carefully limit its authority and do not give it the power to regulate the conduct of individuals directly. The central government makes regulations for the constituent governments, but it exists and operates only at their direction. The 13 states under the Articles of Confederation operated in this manner, as did the southern Confederacy during the Civil War. The closest current example of an operating confederacy in the world is the European Union (EU), which is composed of 27 nations. Although the EU does bind its members to a common currency called the Euro, and does have a European Parliament and European Court of Justice and European Commission, members such as France, Germany, Italy, and Spain retain their own laws and authority. The EU may look like a confederation, but it acts more like a traditional alliance such as the United Nations, or the North Atlantic Treaty Organization.10 Even among all the nations that call themselves federations, there is no single model for dividing authority between the national and state governments. Some countries have no federal system at all, whereas others have different variations of power sharing between the national and state governments. Indeed, even the United States has varied greatly over time in its balance of national–state power. Britain’s government, for example, is divided into three tiers: national, county, and district governments. County and district governments deliver roughly one-fifth of all government services, including education, housing, and police and fire protection. As a rule, most power is reserved for the central government on the theory that there should be “territorial justice,” which means that all citizens should be governed by the same laws and standards. In recent years, however, Great Britain has devolved substantial authority to Scotland, Wales, and Northern Ireland. 28

Advantages of Federalism In 1787, federalism was a compromise between centrists, who supported a strong national government, and those who favored decentralization. Confederation had proved unsuccessful. A unitary system was out of the question because most people were too deeply attached to their state governments to permit subordination to central rule. Many scholars think that federalism is ideally suited to the needs of a diverse people spread throughout a large continent, suspicious of concentrated power, and desiring unity but not uniformity. Yet, even though federalism offers a number of advantages over other forms of government, no system is perfect. Federalism offered, and still offers, both advantages and disadvantages.

FEDERALISM CHECKS THE GROWTH OF TYRANNY Federalism has not always prevented tyranny in other countries in the world and many unitary governments are democratic. Today, however, U.S. citizens tend to associate federalism with freedom.11 When one political party loses control of the national government, it is still likely to hold office in a number of states and can continue to challenge the party in power at the national level. To the Framers, who feared that a single interest group might capture the national government and suppress the interests of others, this diffusion of power was an advantage. There are now nearly 90,000 governments in the United States, including one national government, 50 state governments, and thousands of county, city, and town governments, as well as school boards and special districts that provide specific functions from managing hospitals or parks to mosquito control.12 (See Figure 2.1 for the number of governments in the United States.)

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FEDERALISM ALLOWS UNITY WITHOUT UNIFORMITY National politicians and parties do not have to iron out every difference on every issue that divides us, whether the issue is abortion, same-sex marriage, gun control, capital punishment, welfare financing, or assisted suicide. Instead, these issues are debated in state legislatures, county courthouses, and city halls. Information about state action spreads quickly from government to government, especially during periods when the national government is relatively slow to respond to pressing issues.

National

States

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Municipalities

Special districts

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F I G U R E 2 . 1 NUMBER OF SEPARATE GOVERNMENTS IN THE FEDERAL SYSTEM ◼ How do the levels and numbers of governments in the United States help to prevent tyranny? SOURCE: U.S. Census Bureau, 2012 Census of Governments, Table 2, Local Governments by Type and State, http://www2.census.gov/govs/cog/2012/formatted_prelim_counts_23jul2012_2.pdf.

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FEDERALISM ENCOURAGES EXPERIMENTATION As Justice Louis Brandeis once argued, states can be laboratories of democracy.13 If they adopt programs that fail, the negative effects are limited; if programs succeed, they can be adopted by other states and by the national government. Georgia, for example, was the first state to permit 18-year-olds to vote; Wisconsin was a leader in requiring welfare recipients to work; California moved early on global warming; and Massachusetts created one of the first state programs to provide health insurance to all its citizens. FEDERALISM PROVIDES TRAINING AND CREATES OPPORTUNITIES FOR FUTURE NATIONAL LEADERS Federalism provides a training ground for state and local politicians to gain experience before moving to the national stage. Presidents Jimmy Carter, Ronald Reagan, Bill Clinton, and George W. Bush previously served as governor of the respective states of Georgia, California, Arkansas, and Texas. All totaled, 20 of the nation’s 44 presidents served as governor at some point before winning the presidency. In addition, three former governors ( Jon Huntsman, Rick Perry, and Mitt Romney) ran for the Republican Party nomination for president in 2012, and several were heavily recruited for the campaign but declined. Mitt Romney won the nomination but then lost the presidential election to Barack Obama. FEDERALISM KEEPS GOVERNMENT CLOSER TO THE PEOPLE By providing numerous arenas for decision making, federalism provides many opportunities for Americans to participate in the process of government and helps keep government closer to the people. Every day, thousands of U.S. adults serve on city councils, school boards, neighborhood associations, and planning commissions. Federalism also builds on the public’s greater trust in government at the state and local levels. The closer the specific level of government is to the people, the more citizens trust the government.

Disadvantages of Federalism DIVIDING POWER MAKES IT MUCH MORE DIFFICULT FOR GOVERNMENT TO RESPOND QUICKLY TO NATIONAL PROBLEMS There was a great demand for stronger and more effective homeland security after the September 11, 2001, terrorist attacks, and the national government created a new Department of Homeland Security in response. However, the department quickly discovered that there would be great difficulty coordinating its efforts with 50 state governments and thousands of local governments already providing fire, police, transportation, immigration, and other governmental services. THE DIVISION OF POWER MAKES IT DIFFICULT FOR VOTERS TO HOLD ELECTED OFFICIALS ACCOUNTABLE When something goes well, who should voters reward? When something goes wrong, who should they punish? When Hurricane Katrina hit New Orleans and the surrounding areas in late August 2005 (and Rita less than a month later near Houston), many thousands of people lost their homes and billions of dollars in damage was done. Who was responsible? Did the national government and agencies like the Federal Emergency Management Agency (FEMA) drop the ball on relief efforts, or was it the state or local government’s responsibility? Did the mayor and/or governor fail to plan adequately for such a crisis, or should the national government have had more supplies on hand in advance?

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THE LACK OF UNIFORMITY CAN LEAD TO CONFLICT States often disagree on issues such as health care, school reform, and crime control. In January 2008, for example, California joined 15 other states in suing the national government over a ruling issued by the national Environmental Protection Agency (EPA). For decades, the EPA had allowed California to enact tougher air quality restrictions through higher mileage standards than required by the national Clean Air Act (first enacted in 1970). The

Bush administration rejected a similar request for permission to raise mileage standards in 2008, only to be reversed by the Obama administration in 2009.

VARIATION IN POLICIES CREATES REDUNDANCIES, INEFFICIENCIES, AND INEQUALITIES Labor laws, teacher certification rules, gun ownership laws, and even the licensing requirements for optometrists vary throughout the 50 states, and this is on top of many national regulations. Companies seeking to do business across state lines must learn

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OF the People

Diversity in America

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Where Americans Come From and Where They Live he United States is a nation of immigrants who have arrived from many parts of the world. Throughout the decades, the portrait of immigrants has been changing from mostly white to mostly minority. In 2009, for example, 38.5 million Americans, or 12.5 percent, were foreign born, consisting of 16.8 million naturalized citizens, 10 million long-term visitors, and less than 11 million undocumented immigrants. The number of unauthorized, or illegal, immigrants has fallen somewhat in recent years due to the economic recession, which has depressed employment opportunities. Many foreign-born residents live in the nation’s largest cities. The New York City-area population includes more than 3 million foreign-born residents, while Los Angeles includes another 1.5 million; Miami, slightly more than 2 million; Chicago, just under 600,000, and San Francisco, 275,000. Although inner cities host a majority of foreign-born residents, there has been recent movement of immigrants to the suburbs and some movement toward certain areas of the country such as the southwest. The changing face of America brings great diversity in all aspects of life, from schools to farm fields

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and small businesses. It also enriches the quality of life through the mix of old and new cultures, and can often be a source of innovation in how the economy operates. However, this diversity also provokes complaints about undocumented immigrants. Some groups complain that undocumented immigrants take jobs that should go to U.S. citizens, whereas others worry about the costs associated with high poverty rates. Governments at all levels must reconcile these pros and cons with our history of welcoming immigrants from all around the world.

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QUESTIONS 1. How are foreign-born citizens from different regions of the world different from each other? 2. Why do you think foreign-born citizens tend to live in our nation’s largest cities? 3. How do foreign-born citizens contribute to the nation’s quality of life?

The Statue of Liberty symbolizes America’s long tradition of welcoming immigrants to its shores.

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delegated (express) powers Powe r s g i ve n e x p l i c i t l y t o t h e national government and listed in the Constitution.

implied powers Powers inferred from the express powers that allow Congress to carry out its functions.

necessary and proper clause

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The c lause in the Constitution (Article I, Section 8, Clause 3) setting forth the implied powers of Congress. It states that Congress, in addition to its express powers, has the right to make all laws necessary and proper to carry out all powers the Constitution vests in the national government.

inherent powers The powers of the national government in foreign affairs that the Supreme Court has declared do not depend on constitutional grants but rather grow out of the national government’s obligation to protect the nation from domestic and foreign threats.

and abide by many different sets of laws, while individuals in licensed professions must consider whether they face recertification if they choose to relocate to another state. Where national laws do not exist, it is tempting for each state to try to undercut others’ regulations to get a competitive advantage in such areas as attracting new industry, regulating environmental concerns, or setting basic eligibility standards for welfare or health benefits.

The Constitutional Structure of American Federalism 2.2

Differentiate the powers the Constitution provides to national and state governments.

he division of powers and responsibilities between the national and state governments has resulted in thousands of court decisions, as well as hundreds of books and endless speeches to explain them—and even then the division lacks precise definition. Nonetheless, it is helpful to have a basic understanding of how the Constitution divides these powers and responsibilities and what obligations it imposes on each level of government. The constitutional framework of our federal system is relatively simple:

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1. The national government has only those powers delegated to it by the Constitution (with the important exception of the inherent power over foreign affairs). 2. Within the scope of its operations, the national government is supreme. 3. The state governments have all of the powers not delegated to the central government except those denied to them by the Constitution and their state constitutions. 4. Some powers are specifically denied to both the national and state governments; others are specifically denied only to the states or to the national government.

Powers of the National Government The Constitution explicitly gives legislative, executive, and judicial powers to the national government. In addition to these delegated or express powers, such as the power to regulate interstate commerce and to appropriate funds, the national government has assumed constitutionally implied powers, such as the power to create banks, which are inferred from delegated powers. The constitutional basis for the implied powers of Congress is the necessary and proper clause (Article I, Section 8, Clause 3). This clause gives Congress the right “to make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested … in the Government of the United States.” (Powers specifically listed in the Constitution are also called expressed powers because they are listed expressly.) In foreign affairs, the national government has inherent powers. The national government has the same authority to deal with other nations as if it were the central government in a unitary system. Such inherent powers do not depend on specific constitutional provisions but exist because of the creation of the national government itself. For example, the government of the United States may acquire territory by purchase or by discovery and occupation, even though no specific clause in the Constitution allows such acquisition. The national and state governments may have their own lists of powers, but the national government relies on four constitutional pillars for its ultimate authority over the states: (1) the supremacy clause, (2) the war power, (3) the commerce clause, and especially (4) the power to tax and spend for the general welfare. All four of these pillars are discussed individually below. 32

Together, however, they have permitted a steady expansion of the national government’s functions to the point where some states complain they have lost the power to regulate their own actions. Despite the Supreme Court’s recent declaration that some national laws exceed Congress’s constitutional powers, the national government has, in effect, almost full power to enact any legislation that Congress deems necessary, so long as it does not conflict with provisions of the Constitution designed to protect individual rights and the powers of the states. In addition, Section 5 of the Fourteenth Amendment, ratified in 1868, gives Congress the power to enact legislation to remedy constitutional violations and the denial of due process or equal protection of the laws.

THE SUPREMACY CLAUSE The supremacy clause may be the most important pillar of U.S. federalism. Found in Article VI of the Constitution, the clause is simple and direct: “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made…under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby; any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” Under the clause, state and local governments may not ignore or create their own substitutes for national laws and regulations. Because national laws and regulations of national agencies are supreme, conflicting state and local regulations are unenforceable. States must abide by the national government’s minimum wage laws, for example, but are allowed to set the minimum wage higher if they wish.

supremacy clause Contained in Artic le VI of the Constitution, the clause gives national laws the absolute power even when states have enacted a competing law.

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commerce clause The c lause in the Constitution (Article I, Section 8, Clause 1) that gives Congress the power to regulate all business activities that cross state lines or affect more than one state or other nations.

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THE WAR POWER The national government is responsible for protecting the nation from external aggression, whether from other nations or from international terrorism. The government’s power to maintain national security includes the power to wage war. In today’s world, military strength depends not only on the presence of troops in the field, but also on the ability to mobilize the nation’s industrial might and apply scientific and technological knowledge to the tasks of defense. As Charles Evans Hughes, who became chief justice in 1930, observed: “The power to wage war is the power to wage war successfully.”14 The national government is free to create “no-fly” zones only for its military aircraft both within and across state borders, for example, and may use any airports it needs during times of war or peace. THE POWER TO REGULATE INTERSTATE AND FOREIGN COMMERCE Congressional authority extends to all commerce that affects more than one state. Commerce includes the production, buying, selling, renting, and transporting of goods, services, and properties. The commerce clause (Article I, Section 8, Clause 1) packs a tremendous constitutional punch; it gives Congress the power “to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” In these few words, the national government has found constitutional justification for regulating a wide range of human activity because few aspects of our economy today affect commerce in only one state, the requirement that would render the activity outside the scope of the national government’s constitutional authority. The landmark ruling of Gibbons v. Ogden in 1824, affirmed the broad authority of Congress over interstate commerce.15 The case involved a New York state license that gave Aaron Ogden the exclusive right to operate steamboats between New York and New Jersey. Using the license, Ogden asked the New York state courts to stop Thomas Gibbons from running a competing ferry. Although Gibbons countered that his boats were licensed under a 1793 act of Congress governing vessels “in the coasting trade and fisheries,” the New York courts sided with Ogden. Just as the national government and states both have the power to tax, the New York courts said they both had the power to regulate commerce. Gibbons appealed to the Supreme Court and asked a simple question: Which government had the ultimate power to regulate interstate commerce? The Supreme Court gave an equally simple answer: The national government’s laws were supreme. 33

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federal mandate A requirement the national government imposes as a condition for receiving federal funds.

reserve powers All powers not specifically delegated to the national government by the Constitution. The reserve power can be found in the Tenth Amendment to the Constitution.

concurrent powers Powers that the Constitution gives to both the national and state governments, such as the power to levy taxes.

Gibbons v. Ogden was immediately heralded for promoting a national economic common market, in holding that states may not discriminate against interstate transportation and out-of-state commerce. The Supreme Court’s brilliant definition of “commerce” as intercourse among the states provided the basis for national regulation of “things in commerce”16 and an expanding range of economic activities, including the sale of lottery tickets,17 prostitution,18 radio and television broadcasts,19 and telecommunications and the Internet.

THE POWER TO TAX AND SPEND Congress lacks constitutional authority to pass laws solely on the grounds that they will promote the general welfare, but it may raise taxes and spend money for this purpose. For example, even when the national government lacks the power to regulate education or agriculture directly, it still has the power to appropriate money to support education or to pay farm subsidies. By attaching conditions to its grants of money, the national government creates incentives that affect state action. If states want the money, they must accept the conditions. When the national government provides the money, it can determine how the money will be spent. By withholding or threatening to withhold funds, the national government can influence or control state operations and regulate individual conduct. For example, the national government has stipulated that national funds should be withdrawn from any program in which any person is denied benefits because of race, color, national origin, sex, or physical handicap. The national government also used its “power of the purse” to force states to raise the drinking age to 21 by tying such a condition to national dollars for building and maintaining highways. Congress frequently requires states to provide specific programs—for example, services to indigent mothers, and clean air and water. These requirements are called federal mandates. Often the national government does not supply the funds required to carry out “unfunded mandates” (discussed later in the chapter). Its failure to do so has become an important issue as states face growing expenditures with limited resources.

Powers of the States

Though many states allow the use of medicinal marijuana, the Supreme Court decided that the national government could regulate its use in the states as a form of interstate commerce.

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The Constitution reserves for the states all powers not granted to the national government, subject only to the limitations of the Constitution. Only the states have the reserve powers to create schools and local governments, for example. Both are powers not given exclusively to the national government by the Constitution or judicial interpretation, so that states can exercise these powers as long as they do not conflict with national law. The national and state governments also share powers. These concurrent powers with the national government include the power to levy taxes and regulate commerce internal to each state. In general, states may levy taxes on the same items the national government taxes, such as incomes, alcohol, and gasoline, but a state cannot, by a tax, “unduly burden” commerce among the states, interfere with a function of the national government, complicate the operation of a national law, or abridge the terms of a treaty of the United States. However, where the national government has not asserted its supremacy, states may regulate interstate businesses, provided these regulations do not cover matters requiring uniform national treatment or unduly burden interstate commerce. (See Table 2.1 for the constitutional division of powers.) Who decides which matters require “uniform national treatment” or what actions might place an “undue burden” on interstate commerce? Congress does, subject to the president’s signature and final review by the Supreme Court. When Congress is silent or does not clearly state its intent, the courts—ultimately, the Supreme Court—decide whether there is a conflict with the national Constitution or whether a state law or regulation has preempted the national government’s authority.

TABLE 2.1 THE CONSTITUTIONAL DIVISION OF NATIONAL AND STATE POWERS

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Examples of Powers Delegated to the National Government Regulate trade and interstate commerce Declare war Create post offices Coin money

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Examples of Powers Reserved for State Governments Create local governments Police citizens Oversee primary and elementary education Examples of Concurrent Powers Shared by the National and State Governments Impose and collect taxes and fees Borrow and spend money Establish courts at their level of government Enact and enforce laws Protect civil rights Conduct elections Protect health and welfare

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Constitutional Limits and Obligations To ensure that federalism works, the Constitution imposes restraints on both the national and the state governments. States are prohibited from doing the following: 1. Making treaties with foreign governments 2. Authorizing private citizens or organizations to interfere with the shipping and commerce of other nations 3. Coining money, issuing bills of credit, or making anything but gold and silver coins legal tender in payment of debts 4. Taxing imports or exports 5. Taxing foreign ships 6. Keeping troops or ships of war in time of peace (except for the state militia, now called the National Guard) 7. Engaging in war

Under national pressure and the threat that they will lose national funding if they do not act, states have raised the drinking age to 21. States are also under pressure to monitor drunk driving more aggressively. When states operate these checkpoints because they will lose national funding, the action reflects coercive federalism.

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You Will Decide Should Citizens Have the Right to Choose Their Time to Die?

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any Americans suffer great pain as they struggle with cancer and other diseases in the last few months of life. Although modern medicine offers a number of options for easing the pain through hospice and drug therapies, some citizens would prefer to end their lives on their own schedule through what was once mislabeled as “assisted suicide.” This term often creates images of euthanasia by raising the specter of doctors and government making the decision about when a terminally ill patient should be given the drugs to die. In recent years, however, the term has been replaced by the concept of “end-of-life-choice.” Driven by the “death with dignity” movement, which is led by a public interest group called “Compassion and Choice” (www.compassionandchoice.org ), the campaign has won voter approval in Oregon, Washington, Montana,

and Hawaii. Under current law in these states, patients, not doctors, are given the option of ending their own lives through drugs that ease them into a life-ending coma, or deep sleep, leading to death within minutes. These states require at least two doctors to certify that a patient has only six months or less to live. With this certification in hand, the doctors are allowed to give the patient a prescription for the life-ending drugs. Having decided to end his or her life, the patient is asked two questions before taking the drugs: (1) Do you wish to end your life, and (2) Are you able to administer the drugs by your own hand? If the patient answers yes to both questions, he or she is given the drugs to act. Some patients decide to take the drugs, while others do not. What do you think? Should all states give their citizens the right to end their own lives?

Thinking It Through

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hese citizen-approved laws have been tested in the national courts to see whether states have the right to allow their citizens to choose their own time of death. In a landmark 1990 decision, the Supreme Court decided that states could allow their citizens to express their desire to refuse unwanted medical treatment such as food and water at the end of their lives and to appoint someone to speak for them when they could not.* In 1997, however, the Supreme Court ruled that the Constitution did not guarantee a right to die.† According to these rulings, the U.S. Supreme Court acknowledged a citizen’s right to take control of certain aspects of their death, but also affirmed a state legislature’s right to prohibit anyone from providing help in dying. Also under the rulings, states, not the national government, had the responsibility to pass laws either allowing or prohibiting doctor aid in ending life. Since there is no right to die in the U.S. Constitution, it is also up to state courts to uphold or reject end of life laws under their own constitutions. The Montana Supreme Court did so on December 31, 2009, when it decided that doctors could provide end of life drugs, provided that the patient was mentally competent and clearly aware of the consequences of his or her action and was able to take the drugs without

assistance.‡ On January 1, 2010, the Montana “Death with Dignity Act” went into effect. It is not clear whether the movement toward “death with dignity” will spread to other states. Although advocates believe they have a chance in other western states where voters have the right to pass legislation under the initiative power, state legislatures in other states have been reluctant to raise the issue because it is so controversial. Some citizens define the choice as a form of suicide, and in direct violation of their religious beliefs. Other opponents argue that no one can be sure when they will die even when they have a terminal disease. The right to choose one’s time of death may be permitted under state and national constitutions, but is still a choice that citizens and their legislators must allow.

CRITICAL THINKING QUESTIONS 1. Why did the U.S. Supreme Court decide not to reverse state laws regulating the end of life? 2. Why would a state legislature be reluctant to pass end-of-life legislation? Which groups favor such laws and which do not? 3. Is a law needed at all on the end of life issue? Should either the national or state governments get involved in this issue?

*Cruzan v. Director, Missouri Department of Health, 497 U.S. 261 (1990). †Vacco v. Quill, 521 U.S. 793 (1997). ‡Baxter

v. Montana, --- P.3d ----, 2009 WL 5155363 (Mont. 2009).

In turn, the Constitution requires the national government to refrain from exercising its powers, especially its powers to tax and to regulate interstate commerce, in such a way as to interfere substantially with the states’ abilities to perform their responsibilities. But politicians, judges, and scholars disagree about whether the 36

national political process—specifically the executive and the legislature—or the courts should ultimately define the boundaries between the powers of the national government and the states. Some argue that the states’ protection from intrusions by the national government comes primarily from the political process because senators and representatives elected from the states participate in congressional decisions.20 Others maintain that the Supreme Court should limit the national government’s power and defend the states.21 On a case-by-case basis, the Court has held that the national government may not command states to enact laws to comply with or order state employees to enforce national laws. In Printz v. United States, the Court held that states were not required to conduct instant national background checks prior to selling a handgun.22 Referring broadly to the concept of dual federalism discussed earlier in this chapter, the Supreme Court said that the national government could not “draft” local police to do its bidding. But as previously discussed, even if the national government cannot force states to enforce certain national laws, it can threaten to withhold its funding if states do not comply with national policies, such as lowering the minimum drinking age or speed limit. The Constitution also obliges the national government to protect states against  domestic insurrection. Congress has delegated to the president the authority to dispatch troops to put down such insurrections when the proper state authorities request them.

full faith and credit clause The c lause in the Constitution (Article IV, Section 1) requiring each state to recognize the civil judgments rendered by the courts of the other states and to accept their public records and acts as valid.

extradition The legal process whereby an alleged criminal offender is surrendered by the officials of one state to officials of the state in which the crime is alleged to have been committed.

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Interstate Relationships Three clauses in the Constitution, taken from the Articles of Confederation, require states to give full faith and credit to each other’s public acts, records, and judicial proceedings; to extend to each other’s citizens the privileges and immunities of their own citizens; and to return persons who are fleeing from justice.

FULL FAITH AND CREDIT The full faith and credit clause (Article IV, Section 1), one of the more technical provisions of the Constitution, requires state courts to enforce the civil judgments of the courts of other states and accept their public records and acts as valid.23 It does not require states to enforce the criminal laws or legislation and administrative acts of other states; in most cases, for one state to enforce the criminal laws of another would raise constitutional issues. The clause applies primarily to enforcing judicial settlements and court awards. INTERSTATE PRIVILEGES AND IMMUNITIES Under Article IV, Section 2, individual states must give citizens of all other states the privileges and immunities they grant to their own citizens, including the protection of the laws, the right to engage in peaceful occupations, access to the courts, and freedom from discriminatory taxes. Because of this clause, states may not impose unreasonable residency requirements, that is, withhold rights to American citizens who have recently moved to the state and thereby have become citizens of that state. EXTRADITION In Article IV, Section 2 , the Constitution asserts that, when individuals charged with crimes have fled from one state to another, the state to which they have fled is to deliver them to the proper officials on demand of the executive authority of the state from which they fled. This process is called extradition. “Th e obvious objective of the Extradition Clause,” the courts have claimed, “is that no State should become a safe haven for the fugitives from a sister State’s criminal justice system.”24 Congress has supplemented this constitutional provision by making the governor of the state to which fugitives have fled responsible for returning them. 37

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interstate compact An agreement among two or more states. Congress must approve most such agreements.

national supremacy A constitutional doctrine that whenever conflict occurs between the constitutionally authorized actions of the national government and those of a state or local government, the actions of the national government prevail.

INTERSTATE COMPACTS The Constitution also requires states to settle disputes with one another without the use of force. States may carry their legal disputes to the Supreme Court, or they may negotiate interstate compacts. Interstate compacts often establish interstate agencies to handle problems aff ecting an entire region. Before most interstate compacts become effective, Congress has to approve them. Then the compact becomes binding on all states that sign it, and the national judiciary can enforce its terms. A typical state may belong to 20 compacts dealing with such subjects as environmental protection, crime control, water rights, and higher education exchanges.25

The National Courts and Federalism 2.3

Assess the role of the national courts in defining the relationship between the national and state governments, and evaluate the positions of decentralists and centralists.

lthough the political process ultimately decides how power will be divided between the national and the state governments, the national court system is often called on to umpire the ongoing debate about which level of government should do what, for whom, and to whom. The nation’s highest court claimed this role in the celebrated case of McCulloch v. Maryland.

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McCulloch v. Maryland In McCulloch v. Maryland (1819), the Supreme Court had the first of many chances to define the division of power between the national and state governments.26 Congress had established the Bank of the United States, but Maryland opposed any national bank and levied a $10,000 tax on any bank not incorporated in the state. James William McCulloch, the cashier of the bank, refused to pay on the grounds that a state could not tax an instrument of the national government. Maryland was represented before the Court by some of the country’s most distinguished lawyers, including Luther Martin, who had been a delegate to the Constitutional Convention. Martin said the Constitution did not expressly delegate to the national government the power to create a bank. Martin maintained that the necessary and proper clause gives Congress only the power to choose those means and to pass those laws absolutely essential to the execution of its expressly granted powers. Because a bank is not absolutely necessary to the exercise of its delegated powers, Martin argued, Congress had no authority to establish it. The national government was represented by equally distinguished lawyers, most notably, Daniel Webster. Webster conceded that the power to create a bank was not one of the express powers of the national government. However, the power to pass laws necessary and proper to carry out Congress’s express powers is specifically delegated to Congress. Webster argued that the Constitution leaves no room for doubt which level of government has the final authority. When national and state laws conflict, Webster argued, the national law must be obeyed. Speaking for a unanimous Court, Chief Justice John Marshall rejected every one of Maryland’s contentions. He summarized his views on the powers of the national government in these now-famous words: “Let the end be legitimate, let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consistent with the letter and spirit of the constitution, are constitutional.” Having established the presence of implied national powers, Marshall then outlined the concept of national supremacy. No state, he said, can use its taxing powers to tax 38

a national instrument. “The power to tax involves the power to destroy…. If the right of the States to tax the means employed by the general government be conceded, the declaration that the Constitution, and the laws made in pursuance thereof, shall be the supreme law of the land, is empty and unmeaning declamation.” Marshall’s ruling was based on the Constitution’s supremacy clause. It is difficult to overstate the long-range significance of McCulloch v. Maryland in providing support for the developing forces of nationalism and a unified economy. If the contrary arguments in favor of the states had been accepted, they would have strapped the national government in a constitutional straitjacket and denied it powers needed to deal with the problems of an expanding nation.

preemption The right of a national law or regulation to preclude enforcement of a state or local law or regulation.

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National Courts and the Relationship with the States The authority of national judges to review the activities of state and local governments has expanded dramatically in recent decades because of modern judicial interpretations of the Fourteenth Amendment, which forbids states to deprive any person of life, liberty, or property without due process of the law. States may not deny any person the equal protection of the laws, including congressional legislation enacted to implement the Fourteenth Amendment. Almost every action by state and local officials is now subject to challenge before a national judge as a violation of the Constitution or of national law. Preemption occurs when a national law or regulation takes precedence over a state or local law or regulation. State and local laws are preempted not only when they conflict directly with national laws and regulations, but also when they touch on a field in which the “federal interest is so dominant that the federal system will be assumed to preclude enforcement of state laws on the same subject.”27 Examples of national preemption include laws regulating hazardous substances, water quality, clean air standards, and many civil rights acts, especially the Civil Rights Act of 1964 and the Voting Rights Act of 1965. Throughout the years, national judges, under the leadership of the Supreme Court, have generally favored the powers of the national government over those of the states. Despite the Supreme Court’s recent bias in favor of state over national authority, few would deny the Supreme Court the power to review and set aside state actions. As Justice Oliver Wendell Holmes of the Supreme Court once remarked, “I do not think the United States would come to an end if we lost our power to declare an Act of Congress void. I do think the Union would be imperiled if we could not make that declaration as to the laws of the several States.”28

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The Supreme Court and the Role of Congress From 1937 until the 1990s, the Supreme Court essentially removed national courts from what had been their role of protecting states from acts of Congress. The Supreme Court broadly interpreted the commerce clause to allow Congress to do whatever Congress thought necessary and proper to promote the common good, even if national laws and regulations infringed on the activities of state and local governments. In the past 15 years, however, the Supreme Court has signaled that national courts should be more active in resolving federalism issues.29 The Court declared that a state could not impose term limits on its members of Congress, but it did so by only a 5-to-4 vote. Justice John Paul Stevens, writing for the majority, built his argument on the concept of the federal union as espoused by the great Chief Justice John Marshall, as a compact among the people, with the national government serving as the people’s agent. The Supreme Court also declared that Congress had the power to regulate commerce between states and Native Indian tribes, but not the power to allow national courts to resolve conflicts between the two.30 Unless states consent to such suits, they 39

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States are responsible for registering voters, but the national government is responsible for assuring that state registration rules are constitutional.

enjoy “sovereign immunity” under the Eleventh Amendment. The effect of this decision goes beyond Indian tribes. As a result—except to enforce rights stemming from the Fourteenth Amendment, which the Court explicitly acknowledged to be within Congress’s power—Congress may no longer authorize individuals to bring legal actions against states to force their compliance with national law in either national or state courts.31 Building on those rulings, the Court continues to press ahead with its “constitutional counterrevolution”32 and return to an older vision of federalism from the 1930s. Among other recent rulings, in United States v. Morrison, the Court struck down portions of the Violence Against Women Act, which had given women who are victims of violence the right to sue their attackers for damages.33 Congress had found that violence against women annually costs the national economy $3 billion, but a bare majority of the Court held that gender-motivated crimes did not have a substantial impact on interstate commerce and that Congress had thus exceeded its powers in enacting the law and intruded on the powers of the states. These Supreme Court decisions—most of which split the Court 5 to 4 along ideological lines, with the conservative justices favoring states’ rights—have signaled a shift in the Court’s interpretation of the constitutional nature of our federal system. It is a shift that has been reinforced with the most recent Supreme Court appointments made by Presidents Bush and Obama. Chief Justice John Roberts and Justice Samuel Alito, each appointed by President George W. Bush, tend to favor the states, while justices Sonia Sotomayor and Elena Kagan, Obama appointees, tend to side with the national government.

The Continuing Debate Between Centralists and Decentralists From the beginning of the Republic, there has been an ongoing debate about the “proper” distribution of powers, functions, and responsibilities between the national government and the states. Did the national government have the authority to outlaw slavery in the territories? Did the states have the authority to operate racially segregated schools? Could Congress regulate labor relations? Does Congress have the 40

power to regulate the sale and use of firearms? Does Congress have the right to tell states how to clean up air and water pollution? Today, the debate continues between centralists, who favor national action on  issues  such as environmental protection and gun control, and decentralists, who defend the powers of the states and favor action at the state and local levels on these issues.

THE CENTRALIST POSITION The centralist position has been supported by presidents, Congress, and the Supreme Court. Presidents Abraham Lincoln, Theodore Roosevelt, Franklin Roosevelt, and Lyndon Johnson were particularly strong supporters, and the Supreme Court has generally ruled in favor of the centralist position. Centralists reject the idea of the Constitution as an interstate compact. They view it as a supreme law established by the people. The national government is an agent of the people, not of the states, because it was the people who drew up the Constitution and created the national government. They intended that the national political process should define the central government’s powers and that the national government be denied authority only when the Constitution clearly prohibits it from acting. Centralists argue that the national government is a government of all the people, whereas each state speaks for only some of the people. Although the Tenth Amendment clearly reserves powers for the states, it does not deny the national government the authority to exercise all of its powers to the fullest extent. Moreover, the supremacy of the national government restricts the states because governments representing

centralists People who favor national action over action at the state and local levels.

decentralists

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People who favor state or local action rather than national action.

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States have the power to prohibit texting while driving for their citizens, while the federal government has the power to prohibit texting while driving for truck and bus drivers engaged in interstate commerce.

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states’ rights Powers expressly or implicitly reserved to the states.

devolution revolution The effort to slow the growth of the national government by returning many functions to the states.

part of the people cannot be allowed to interfere with a government representing all of them.

THE DECENTRALIST POSITION Among those favoring the decentralist or states’ rights interpretation were the Anti-Federalists, Thomas Jefferson, the pre–Civil War statesman from South Carolina John C. Calhoun, the Supreme Court from the 1920s to 1937, and, more recently, Presidents Ronald Reagan and George H. W. Bush, the Republican leaders of Congress, former Chief Justice William H. Rehnquist, and current Justices Antonin Scalia and Clarence Thomas. Most decentralists contend that the Constitution is basically a compact among sovereign states that created the central government and gave it limited authority. Thus the national government is little more than an agent of the states, and every one of its powers should be narrowly defined. Any question about whether the states have given a particular function to the central government or have reserved it for themselves should be resolved in favor of the states. Decentralists believe that the national government should not interfere with activities reserved for the states. Their argument is based on the Tenth Amendment, which states: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” Decentralists insist that state governments are closer to the people and reflect the people’s wishes more accurately than the national government does. Decentralists have been particularly supportive of the devolution revolution, which argues for returning responsibilities to the states.34 In the 1990s, the Republicancontrolled Congress gave states more authority over some programs such as welfare, and President Clinton also proclaimed, “The era of big government is over.” However, he tempered his comments by adding, “But we cannot go back to the time when our citizens were left to fend for themselves,” and despite its dramatic name, the revolution has fallen short of the hoped-for results. The national government has continued to enact laws regulating the states. Following the September 11 terrorist attacks, for example, Congress passed a long list of laws giving states specific responsibilities for defending homeland security, including the implementation of national criteria for issuing driver’s licenses. It has also ordered states not to sell any citizen’s personal information to private companies, ended state regulation of mutual funds, nullified state laws that restrict telecommunication competition, and given the national judiciary the power to prosecute a number of state and local crimes, including carjacking and acts of terrorism.

The National Budget as a Tool of Federalism 2.4

Analyze the budget as a tool of federalism, and evaluate its impact on state and local governments.

ongress authorizes programs, establishes general rules for how the programs will operate, and decides whether room should be left for state or local discretion and how much. Most important, Congress appropriates the funds for these programs and generally has deeper pockets than even the richest states. National grants are one of Congress’s most potent tools for influencing policy at the state and local levels.

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National grants serve four purposes, the most important of which is the fourth: 1. To supply state and local governments with revenue 2. To establish minimum national standards for such things as highways and clean air 3. To equalize resources among the states by taking money from people with high incomes through national taxes and spending it, through grants, in states where the poor live 4. To attack national problems but minimize the growth of national agencies

Types of National Government Grants National, or federal, grants can be classified on two separate dimensions: (1) how much discretion the national government uses in making the grant decision and, (2) what kinds of requirements the national government puts on how the funding can be spent. There are four types of national grants to the states: (1) project grants, (2) formula grants, (3) categorical grants, and (4) block grants (sometimes called flexible grants). According to the national government’s 2011 tracking reports, states received about $25 billion in project grants that year, $485 billion in formula grants, $682 billion in categorical grants, and $9 billion in block grants.35 (As we shall see below, these grant totals often contain a mix of different kinds of grants—for example, categorical grants often contain formula grants. Thus, the total of all grants to the states in 2010 was $600 billion. By 2016, the president’s budget office estimates that the total will rise by another $100 billion.36)

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PROJECT GRANTS The national government supports states through project grants for specific activities, such as scientific research, homeland security, and some education programs. Most project grants are awarded through a competitive process following an application process. Project grants are generally restricted to a fixed amount of time and can only be spent within tight guidelines. Many university-based medical schools rely on project grants to support their efforts to cure life-threatening diseases such as cancer and heart disease. In order for a state or local government to receive funding through a project grant, the state or local government must apply for the funding. This gives the grantor the discretion to approve some applications and reject others based typically on the technical requirements of the individual grant program. FORMULA GRANTS Formula grants are distributed to the states based on procedures set out in the granting legislation. The simplest formula is population—each recipient government receives a certain number of dollars for each person who lives in the jurisdiction. More complex formulas might define the target population—for example, the number of people below the poverty line or above the age of 65. Other formulas do not involve people at all, but specific measures of a problem such as the number of boarded-up houses in a state. Early rounds of homeland security funding were based largely on a population formula, while the most recent rounds have taken both population and the risk of a terrorist attack into consideration in granting funds to state and local governments. CATEGORICAL GRANTS Categorical grants are made for specific purposes; hence, the term “categorical.” Categorical grants for specific purposes, such as Medicaid health care for the poor, are tightly monitored to ensure that the money is spent exactly as directed. Categorical grants have the most strings attached—state and local governments need to conform to all aspects of the funding legislation in order to receive the national funds. Although states have leeway in deciding how some categorical grants

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FOR the People

Government’s Greatest Endeavors

Helping States Educate Their Citizens 2.2

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t first glance, the national government provides only limited assistance to states and localities to support public schools and universities. National grants for education programs such as the No Child Left Behind Act enacted in the George W. Bush administration and still in effect is relatively small compared to total state and local spending, and they often come with significant unfunded mandates. However, much of the national government’s support for state and local education is hidden from view. In the 1940s and 1950s, for example, the national government gave returning World War II veterans the tuition to earn college degrees through the GI Bill. These tuition grants, not loans, helped thousands of veterans get better jobs, purchase homes, and rebuild the economy, which was suffering from a post-war slump. Out of 15 million eligible veterans, 8 million went to college or training programs. In 1947 alone, veterans accounted for nearly half of all college enrollment. According to past research by Congress, every dollar invested over the life of the program generated between $5 and $12.50 in tax revenues from veterans whose college education gave them better jobs and higher salaries than they otherwise would have had.* The GI Bill exists to this day, and covers college tuition for veterans of all recent wars, including the wars in Iraq and Afghanistan. The national government also provides significant support to help rebuild public schools, encourage educational innovations such as charter schools, and support college students as they work toward their degrees. In 2001, for example, Congress passed the “No Child Left Behind Act,” which set national math and reading standards tied to national funding for public schools. The act

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remains in effect even though many states have raised objections to the strict standards. More recently, the Obama administration launched a $4.5 billion national competition called “Race to the Top” to encourage innovative school programs through an annual competition for billions of dollars in federal funds. Of the 48 states that entered the competition, 15 states made the first cut, and Delaware, the District of Columbia, Florida, Georgia, Hawaii, Maryland, Massachusetts, New York, North Carolina, Rhode Island, and Tennessee won grants from $75 million to $700 million.† The GI Bill, No Child Left Behind Act, and Race to the Top show how federalism can help all levels of government accomplish broad national goals from homeland security to disaster relief and educational reform. Sometimes the national grants can be very large as in Race to the Top, but even the relatively small amount of funding that actually reaches an individual public school can motivate significant changes within our federal system.

QUESTIONS 1. What are some of the advantages of national and local governments working collectively on problems like education? What are the disadvantages? 2. Why might state and local governments want to enter competitions such as Race to the Top even when the amount of funding at stake is so small in comparison to what they spend? 3. What kind of federalism is the GI Bill tuition program? What kind of federalism is Race to the Top?

President Obama congratulates graduates after delivering the commencement address for Kalamazoo Central High School, winner of the 2010 Race to the Top High School Commencement Challenge, June 7, 2010. *Cited by the United States Commission on National Security/21st Century, Road Map for National Security: Imperative for Change: The Phase III Report, (Government Printing Office, 2001), footnote 145. †Information

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on the competition is available at http://www2.ed.gov/programs/racetothetop

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The national government’s school lunch program provides basic support for undernourished children, and is administered by local public school districts under state guidelines. The program is an example of cooperative federalism.

can be spent for programs such as highway construction, the national government often attaches strings to the overall category. Categorical grants involve the largest amount of federal support, but often require the states to match some percentage of each national dollar.

BLOCK GRANTS Block grants are made for more generalized governmental functions such as public assistance, health services, child care, or community development. By definition, these blocks of funding are provided with very few requirements attached. States have great flexibility in deciding how to spend block grant dollars, but unlike programs such as national unemployment insurance that are guaranteed for everyone who qualifies for them, block grants are limited to specific amounts set by the national government. These four types of grants are occasionally combined within a single program area. Some categorical grants contain formulas, for example, while block grants are generally restricted to a broad issue such as education and assistance to the poor. As the following examples demonstrate, the national government often mixes and matches the grant types to accomplish its goals: ●

The National School Lunch Program is both a categorical and formula grant— school districts receive funding for each meal served to a qualified student. To receive the funding the school district must guarantee that the lunches meet U.S. Department of Agriculture nutrition standards.

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The Community Development Block Grant (CDBG) program is both a block and formula grant—states receive funding from the national government based on a formula that includes a number of need-based variables.

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National research grants from agencies such as the National Institutes of Health or National Science Foundation are both project and categorical in nature with strict formulas for allocating the money in making final decisions. 45

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The Federal Aviation Administration’s (FAA) Airport Improvement Program is both a block and project grant. The FAA takes applications and issues grants for the broad purpose of planning and developing airports in the United States.

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The Politics of National Grants

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Republicans “have consistently favored fewer strings, less national supervision, and the delegation of spending discretion to the state and local governments.”37 Democrats have generally been less supportive of broad discretionary block grants, instead favoring more detailed, federally supervised spending. The Republican-controlled Congress in the 1990s gave high priority to creating block grants, but it ran into trouble when it tried to lump together welfare, school lunch and breakfast programs, prenatal nutrition programs, and child protection programs in one block grant. The battle over national versus state control of spending tends to be cyclical. As one scholar of federalism explains, “Complaints about excessive federal control tend to be followed by proposals to shift more power to state and local governments. Then, when problems arise in state and local administration—and problems inevitably arise when any organization tries to administer anything—demands for closer federal supervision and tighter federal controls follow.”38

The Battle for Grants With so much funding at stake, it is not surprising that state and local governments might engage in aggressive lobbying to win their fair share, especially in setting the formulas that dictate funding within many grants. Whether by using their connections with members of Congress or the president, or by direct lobbying through their state offices in Washington or their national trade associations, state and local governments often intervene at several points in the funding process. First, the specific instructions Congress develops in allocating formula grants often involves intricate negotiation. Small changes in the terms—or the weight that the terms carry—in a given formula can advantage some states and disadvantage others. It is now a simple matter for states to analyze various proposed formulas in new legislation and to calculate how well they will do using each of those rival formulas. Second, when a grant program is project-oriented, state and local governments often employ professional grant writers who know the inside workings of the national grantmaking process and so know how to orient grant applications to make them more attractive to the officials who review the proposals. And third, state officials generally prefer (and lobby Congress for) block grants that have fewer restrictions on how the states can spend the funding to categorical grants that have more restrictions. In tough financial times when the competition for national grants increases, lobbying becomes increasingly more common.

Unfunded Mandates Fewer national dollars do not necessarily mean fewer national controls. On the contrary, the national government has imposed mandates on states and local governments, often without providing national funds. State and local officials complained about this, and their protests were effective. The Unfunded Mandates Reform Act of 1995 was championed by then-House Republican Speaker Newt Gingrich as part of the GOP’s Contract with America. The act was considered part of what commentators called the “Newt Federalism.” The law requires Congress to evaluate the impact of unfunded mandates and imposes mild constraints on Congress itself. A congressional committee that approves any legislation containing a national mandate must draw attention to the mandate in its report and describe its cost to state and local governments. If the committee intends 46

any mandate to be partially unfunded, it must explain why it is appropriate for state and local governments to pay for it. At least during its first 15 years, the Unfunded Mandates Reform Act has been mostly successful in restraining mandates.39 According to the National Conference of State Legislatures, the national government has enacted only 11 laws since 1995 that impose unfunded mandates. Three of these unfunded mandates involved increases in the minimum wage that apply to all state and local employees.40

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The Politics of Federalism 2.4

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Evaluate the current relationship between the national and state governments and the future challenges for federalism.

2.5 he formal structures of our federal system have not changed much since 1787, but the political realities, especially during the past half-century, have greatly altered the way federalism works. To understand these changes, we  need to look at some of the trends that continue to fuel the debate about the meaning of federalism.

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The Growth of National Government Throughout the past two centuries, power has accrued to the national government. As the Advisory Commission on Intergovernmental Relations observed in a 1981 report, “No one planned the growth, but everyone played a part in it.”41 This shift occurred for a variety of reasons. One is that many of our problems have become national in scope. Much that was local in 1789, in 1860, or in 1930 is now national, even global. State governments could supervise the relationships between small merchants and their few employees, for instance, but only the national government can supervise relationships between multinational corporations and their thousands of worldwide employees, many of whom are organized in national unions. As the economy grew rapidly during the early nineteenth century, powerful interests made demands on the national government. Business groups called on the government for aid in the form of tariffs, a national banking system, subsidies to railroads and the merchant marine, and uniform rules on the environment. And companies such as automobile makers that sell their products in all states typically prefer one national set of regulations rather than a different set in every state. Farmers learned that the national government could give more aid than the states, and they too began to demand help. By the beginning of the twentieth century, urban groups in general and organized labor in particular were pressing their claims. Big business, big agriculture, and big labor all added up to big government. The growth of the national economy and the creation of national transportation and communications networks altered people’s attitudes toward the national government. Before the Civil War, citizens saw the national government as a distant, even foreign, entity. Today, in part because of television and the Internet, most people know more about Washington than they know about their state capitals, and they know more about the president and their national legislators than about their governor, their state legislators, or even the local officials who run their cities and schools. Voter turnout in local elections is generally lower than in state elections and lower in state elections than in presidential elections. The Great Depression of the 1930s stimulated extensive national action on welfare, unemployment, and farm surpluses. World War II brought federal regulation of wages, prices, and employment, as well as national efforts to allocate resources, train personnel, and support engineering and inventions. After the war, the national government 47

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BY the People

Do a Data Mash-up on Your State overnments and other organizations produce enormous amounts of information every year on how states raise and spend money, where people live, and even how they travel, eat, and spend their free time. However, as the amount of information has expanded rapidly over the decade, new organizations have become engaged in helping citizens “mash-up” the data to reveal trends, ratings, and rankings in how their own states compare with other states. Using what some experts call “data-scraping” computer programs, these organizations allow citizens to track the issues and problems that matter most to them, while exploring possible causes and effects along the way. In doing so, they can keep track of what their governments are doing to encourage or discourage particular behaviors and make informed judgments about how to solve public problems. Datamasher.org is one of the new Web sites dedicated to helping advance citizen knowledge. With hundreds of information sources to work with, you are free to search for patterns in topics like the number of fast-food restaurants and the level of obesity in your state. The question in this specific mash-up is whether the number of these restaurants somehow relates to obesity. In some states such as Colorado, the ratio of restaurants to obesity is relatively low, compared with much higher levels in other states such as Kansas. Recognizing that correlation is not causation, the mashup does not prove that higher obesity leads to more fast-food restaurants, or vice versa. But, mash-up

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Making a Difference

provides an interesting way of thinking about whether some trends are related to each other in your state and suggests questions deserving more rigorous investigation. Simply asked, are there some conditions that lead to a stronger relationship between the two measures in Kansas than its next-door neighbor Colorado? Datamasher.org also allows you to create your own mash-ups built on specific questions you might have. What is the relationship between the divorce rate and high school graduation rate? What is the relationship between smoking and cancer? What is the relationship between a high SAT score and having a solar panel on your house? These mash-ups produce maps and tables that show what is happening in your state, and suggest many ideas for moving your state up or down the rankings.

QUESTIONS 1. How could keeping track of statistics about your state be a way to hold government accountable for what it does? 2. Is there too much information now available on what governments do and how problems relate to each other? Are rankings of states a good way to improve the way governments operate and make decisions? 3. What are the risks of using data mash-ups to make a case for government action?

helped veterans obtain college degrees and inaugurated a vast system of support for university research. The United States became the most powerful leader of the free world, maintaining substantial military forces even in times of peace. Although economic and social conditions created many of the pressures for expanding the national government, so did political claims. Once established, federal programs generate groups with vested interests in promoting, defending, and expanding them. Associations are formed and alliances are made. “In a word, the growth of government has created a constituency of, by, and for government.”42 The national budget can become a negative issue for Congress and the president if it grows too large, however. In 2011–2012, for example, Congress and the president adopted deep cuts in federal aid to the states in an effort to reduce the federal deficit. The cuts were needed to reassure financial markets that the United States was making progress to reduce its rapidly increasing debt. The politics of federalism are changing, and Congress is being pressured to reduce the size and scope of national programs, while dealing with the demands for homeland security. Meanwhile, the cost of entitlement programs such as Social Security and Medicare is rising because there are more older people with chronic health conditions, and they are living longer. These programs have widespread public support: to cut them is politically risky. “With all other options disappearing, it is politically tempting to finance tax cuts by turning over to the states many of the social programs…that have become the responsibility of the national government.”43

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The Future of Federalism During recent decades, state governments have undergone a major transformation. Most have improved their governmental structures, taken on greater roles in funding education and welfare, launched programs to help distressed cities, expanded their tax bases by allowing citizens to deduct their state and local taxes from the national income tax, and assumed greater roles in maintaining homeland security and in fighting corporate corruption. After the civil rights revolution of the 1960s, segregationists feared that national officials would work for racial integration. Thus, they praised local government, emphasized the dangers of centralization, and argued that the protection of civil rights was not a proper function of the national government. As one political scientist observed, “Federalism has a dark history to overcome. For nearly 200 years, states’ rights have been asserted to protect slavery, segregation, and discrimination.”44 Today, the politics of federalism, even with respect to civil rights, is more complicated than in the past. The national government is not necessarily more sympathetic to the claims of minorities than state or city governments are. Rulings on same-sex marriages and “civil unions” by state courts interpreting their state constitutions have extended more protection for these rights than has the Supreme Court’s interpretation of the U.S. Constitution. Other states, however, are passing legislation that would eliminate such protections, and opponents are pressing for a constitutional amendment to bar same-sex marriages. The national government is not likely to retreat to a more passive role. Indeed, international terrorism, the wars in Afghanistan and Iraq, and rising deficits have substantially altered the underlying economic and social conditions that generated the demand for federal action. In addition to such traditional challenges as helping people find jobs and preventing inflation and depressions—which still require national action—combating terrorism and surviving in a global economy based on the information explosion, e-commerce, and advancing technologies have added countless new issues to the national agenda. Most American citizens have strong attachments to the Constitution’s federal system measured broadly to mean all levels of government. However, they remain highly critical of the politicians who run government and are often angry at the stalemates 49

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in their national, state, and local legislatures. Although Americans still trust their state and local governments more than the national government in Washington, D.C., they are increasingly reluctant to give their states and localities a ringing endorsement. Federalism can be a source of great reward for the nation, especially when it allows states to lead the nation in creating new programs to address problems such as poverty, global warming, and health care access. If the people cannot move the national government toward action, they can always push their state and local governments. By giving them different leverage points to make a difference, the Constitution guarantees that government is by the people. Federalism can also be a source of enormous frustration, especially when national and state governments disagree on basic issues such as civil rights and liberties. This is when the people need to step forward not as citizens of their states but as citizens of the nation as a whole. Even as they influence their state and local governments, the people must understand they have a national voice that often needs to be heard.

Review the Chapter Defining Federalism 2.1

Interpret the definitions of federalism, and assess the advantages and disadvantages of the American system of federalism, p. 26.

A federal system is one in which the constitution divides powers between the central government and lower-level governments such as states or provinces. But, over time, there has been support for different balances between state and government power such as the shift from dual federalism to marble cake federalism. The federal system in the United States does protect us from tyranny, permit local variation in policy, and encourage experimentation, but it comes at the cost of greater complexity, conflict, and difficulty in determining exactly which level of government is responsible for providing which goods and services that citizens might demand.

The Constitutional Structure of American Federalism 2.2

Differentiate the powers the Constitution provides to national and state governments, p. 32.

The Constitution gives three types of powers to the national and state governments: delegated powers to the national government, reserve powers for the states, and concurrent powers that the national and state governments share. Beyond delegated powers, the national government also has implied powers under the necessary and proper clause and inherent powers during periods of war and national crisis. The national government’s power over the states stems primarily from several constitutional pillars: the national supremacy clause, the war powers, its powers to regulate commerce among the states to tax and spend, and its power to do what Congress thinks is necessary and proper to promote the general welfare and to provide for the common defense. These constitutional pillars have permitted tremendous expansion of the functions of the national government.

The National Courts and Federalism 2.3

Assess the role of the national courts in defining the relationship between the national and state governments, and evaluate the positions of decentralists and centralists, p. 38.

The national courts umpire the division of power between the national and state governments. The Marshall Court, in decisions such as Gibbons v. Ogden and McCulloch v. Maryland, asserted the power of the national government over the states and promoted a national economic common market. These decisions also reinforced the supremacy of the national government over the states. Today, debates about federalism are less often about its constitutional structure than about whether action should come from the national or the state and local levels. Recent Supreme Court decisions favor a decentralist position and signal shifts in the Court’s interpretation of the constitutional nature of our federal system.

The National Budget as a Tool of Federalism 2.4

Analyze the budget as a tool of federalism, and evaluate its impact on state and local governments, p. 42.

The major instruments of national intervention in state programs have been various kinds of financial grants-in-aid, of which the most prominent are categorical grants, formula grants, project grants, and block grants. The national government also imposes federal mandates and controls activities of state and local governments by other means.

The Politics of Federalism 2.5

Evaluate the current relationship between the national and state governments and the future challenges for federalism, p. 47.

The national government has grown dramatically throughout the past 200 years. Its budget dwarfs many state budgets combined. As it has grown, the national government has asked states to do more on its behalf. States have pressed back against the national government, however, and continue to fight for their authority to use powers that are reserved for them under the Constitution.

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Learn the Terms federalism, p. 26 unitary system, p. 28 confederation, p. 28 delegated (express) powers, p. 32 implied powers, p. 32 necessary and proper clause, p. 32 inherent powers, p. 32

supremacy clause, p. 33 commerce clause, p. 33 federal mandate, p. 34 reserve powers, p. 34 concurrent powers, p. 34 full faith and credit clause, p. 37 extradition, p. 37

interstate compact, p. 38 national supremacy, p. 38 preemption, p. 39 centralists, p. 41 decentralists, p. 41 states’ rights, p. 42 devolution revolution, p. 42

Test Yourself MULTIPLE CHOICE QUESTIONS

2.1 Interpret the definitions of federalism, and assess the advantages and disadvantages of the American system of federalism. Canada has a central government in Ottawa, the nation’s capital, along with ten provinces and three territories, each of which has its own government. According to Canada’s constitution, both the provinces and the central government have powers to tax and regulate individual citizens. Which type of government best describes Canada? a. A unitary state b. A cooperative federalist state c. A confederation d. A territorial union e. A competitive federalist state

2.2 Differentiate the powers the Constitution provides to national and state governments. Determine whether the following powers are delegated to the national government, reserved for the states, or shared by both: a. Power to establish courts b. Power to tax citizens and businesses c. Power to regulate interstate commerce d. Power to oversee primary and elementary education e. Power to make war

2.3 Assess the role of the national courts in defining the relationship between the national and state governments, and evaluate the positions of decentralists and centralists. Which of the following arguments support the decentralist case? a. The Constitution is a compact among sovereign states. b. The national government is an agent of the states. c. The national government should not interfere with activities reserved to the states. d. State governments reflect the people’s wishes more accurately than the national government. e. All of the above

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2.4 Analyze the budget as a tool of federalism, and evaluate its impact on state and local governments. Which of the following are examples of a federal mandate: a. The New York state legislature passes a law requiring all New York school teachers to spend ten hours a year learning new teaching techniques. b. Congress passes a law requiring all coal plants in the United States to reduce their carbon emissions by 30 percent by 2015. c. The Supreme Court upholds a law requiring teenage women to get parental permission before having an abortion. d. The Federal Emergency Management Agency sends funds from the national government to help clean up after a tornado. e. Congress passes an increase in the minimum wage that applies to all state and local employees.

2.5 Evaluate the current relationship between the national and state governments and the future challenges for federalism. What is a likely future for federalism? a. Congress may reduce the size of national programs. b. Homeland security will be turned over to the states. c. There will be many new issues on the national agenda. d. The national government will become more passive. e. The decentralist position will prevail.

ESSAY QUESTION In a few sentences, discuss the “constitutional counterrevolution” instigated by Chief Justice William Rehnquist and continued by Chief Justice John Roberts. Why is preemption such a powerful tool for influencing state governments? Use this answer to write an essay appraising whether the balance of governmental power should lean more toward either the national government or the states.

Explore Further IN THE LIBRARY Samuel H. Beer, To Make a Nation: The Rediscovery of American Federalism (Harvard University Press, 1993). Michael Burgess, Comparative Federalism Theory and Practice (Routledge, 2006). Center For The Study Of Federalism, The Federalism Report (published quarterly by Temple University; this publication notes research, books and articles, and scholarly conferences). Center For The Study Of Federalism, Publius: The Journal of Federalism (published quarterly by Temple University; one issue each year is an “Annual Review of the State of American Federalism”; Web site is www.lafayette.edu/˜publius). Timothy J. Conlan, From New Federalism to Devolution: TwentyFive Years of Intergovernmental Reforms (Brookings Institution Press, 1998). Daniel J. Elazar and John Kincaid, eds., The Covenant Connection: From Federal Theology to Modern Federalism (Lexington Books, 2000). Allison L. Lacroix The Ideological Origins of American Federalism (Harvard University Press, 2010). John D. Nugent Safeguarding Federalism: How States Protect Their Interests in National Policymaking (University of Oklahoma Press, 2009). Pietro Nivola, Tense Commandments: Federal Prescriptions and City Problems (Brookings Institution Press, 2002).

John T. Noonan, Narrowing the Nation’s Power: The Supreme Court Sides with the States (University of California Press, 2002). William H. Riker, The Development of American Federalism (Academic Press, 1987). Denise Scheberle, Federalism and Environmental Policy: Trust and the Politics of Implementation (Georgetown University Press, 2004). Kevin Smith, ed., State and Local Government, 2008–2009 (CQ Press, 2008). Carl Van Horn, ed., The State of the States, 4th ed. (CQ Press, 2008).

ON THE WEB www.ncsl.org The top source of information on pending legislative action and policy controversy in the states. www.nga.org The primary Web site for the state governors. www.USASpending.gov The national government’s summary of all spending activity. Includes charts and graphs on overall spending trends and amounts of funding dedicated to state governments. www.governing.com The Web site for the major national magazine on state and local governments.

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3 State Constitutions Charters or Straitjackets? n 2003, the Massachusetts Supreme Judicial Court ruled that “barring an individual from the protections, benefits, and obligations of civil marriage solely because that person would marry a person of the same sex violates the Massachusetts Constitution.”1 Following that ruling, several other state supreme courts came to similar decisions—Iowa and California in 2008 and New Jersey in 2009. Other states—Connecticut (2005), New Hampshire (2008), Vermont (2009), New York (2011), Washington (2012), and Maryland (2012)—legalized same-sex marriages or civil unions through legislative action. Decisions in the states sometimes led to movements to amend the state’s constitution, such as in California, or voter approval or rejection of state laws as in Maine where voters rejected same-sex marriage in 2009 and then allowed it in 2012. Earlier state action—the 1993 Hawaii State Supreme Court decision that the state’s law limiting marriage to opposite sex couples would be unconstitutional unless the state could show a compelling interest in doing so—triggered a firestorm of political and media attention and resulted in the Defense of Marriage Act (DOMA) in 1996. Each of these state actions—whether by courts or by legislatures—relied on state constitutional grounds to recognize same-sex unions, although none of these states’ constitutions expressly addressed marriage. This reflects a returned emphasis to state courts and constitutions as protectors of individual liberties and rights. Marriage has always been an issue on which states rather than the national government sets the rules, though the U.S. Supreme Court did rule that marriage was one of the “basic civil rights of man”2 and that the U.S. Constitution bars states from banning interracial marriage.3 In the absence thus far of the federal government’s recognition of same-sex marriage, activists have pursued that goal in the states.

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Compare and contrast the U.S. Constitution and state constitutions, p. 56.

Outline the processes used to amend state constitutions, p. 62.

Evaluate the states’ recent attempts at constitutional revision, p. 66.

A same sex couple enjoy their wedding ceremony in Provincetown, MA which has become a popular location for such marriages.

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Same-sex marriage is a particularly fascinating case of how state constitutions and the U.S. Constitution do and do not fit with each other. The U.S. Constitution is the supreme law of the land and no state constitution or state law can contradict it. However, states can add additional rights that the U.S. Constitution does not contain—and many states have done so. Same-sex marriage is also a good example of the practicality of state constitutions and law in contrast to the symbolism of the U.S. Constitution and federal law. Suits have been filed in both Massachusetts and New York challenging the constitutionality of DOMA. The New York attorney general filed a brief supporting a woman who claimed that her marriage to another woman was legally recognized by the state but she was required to pay more than $350,000 in inheritance taxes because the U.S. government did not recognize the marriage. The Supreme Court agreed to review the case during its October 2012 term. Suits filed in other states challenging the traditional definition of marriage involve hospital visits, insurance benefits, joint tax returns, and other types of practical rights enjoyed by married couples but not by unmarried couples. And finally, same-sex marriage is a good example of the difference between provisions of state constitutions and language of state law. Since 1998, voters in 30 states have approved amendments to their state constitutions banning same-sex marriages or civil unions, figuring that putting such language in their state constitutions makes it impossible for their state courts to agree with those in Massachusetts or New Jersey. Meanwhile, in 2012 voters in Maryland amended their state constitution to allow same-sex marriage and voters in Minnesota rejected an amendment that would have banned same-sex marriage. What the history of same-sex marriage makes clear is that state constitutions (a) can play a central role in defining meaningful rights for citizens, (b) vary a great deal from one state to another, and (c) at times protect rights for state residents that go beyond the rights defined in the U.S. Constitution. Take a look at your state’s constitution and see what sorts of rights and restrictions it contains that differ from the U.S. Constitution. Constitutions establish the basic scope and structure of a government. They both empower governments to take actions and limit the actions they can take. The U.S Constitution holds a revered place in our country’s history and culture, but our state constitutions do not generally enjoy the same status. The U.S. Constitution is the only one that the United States has ever had; only 19 of the 50 states can make that same claim, and many of those states with their original constitutions are those more recently admitted into the union. On a trip to your state capitol, you are unlikely to find the state constitution “displayed [like] the federal Constitution, in a setting similar to a Shinto shrine.”4 Still, our state constitutions are powerful documents that affect our government and our lives as citizens in more ways than we typically realize. In this chapter, we examine the roots of state constitutions and some of the reasons for constitutional rigidity. Then, we look at methods of amending state constitutions, ending with a few case studies of states that have tried, for the most part unsuccessfully, to adopt new constitutions.

The Roots of State Constitutions 3.1

Compare and contrast the U.S. Constitution and state constitutions.

he first state constitutions were outgrowths of colonial charters. Massachusetts and New Hampshire can boast of charters still in effect that are older than the federal Constitution. Virginia added a bill of rights to its constitution in 1776—13 years before the national one was proposed by Congress. In 1787, the Framers of the U.S. Constitution drew heavily on their experience with these state charters. “What is the Constitution of the United States but that of Massachusetts, New York, and Maryland!” remarked John Adams, who drafted the Massachusetts Constitution in 1779. “There is not a feature in it,” he said, “which cannot be found in one or the other.”5

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Subject only to the broad limitations of the U.S. Constitution, the people of each state are free to create whatever kind of republican government they wish. All state constitutions are similar in general outline. A state constitution typically consists of a preamble, a bill of rights, articles providing for the separation of powers, a two-house legislature (Nebraska only has one), an executive branch, and an independent judiciary with the power of judicial review (see Figure 3.1 for how the state constitution of Georgia organizes its state government). It will also have a description of the form and powers of local units of government, an article on how to amend the constitution, and miscellaneous provisions dealing with election procedures, corporations, railroads, finances, education, and other specific topics. State constitutions also differ from one another. Seven states in the United States do not have the office of lieutenant governor; some states elect judges while in others they are appointed by the governor or by the state legislature; state officials elected in Georgia may be appointed by the governor in other states; and some commissioners appointed by Georgia’s governor may be elected in other states. States are free to establish the governing structure they choose as long as they adhere to the U.S. Constitution’s requirement of a republican form of government. The bills of rights in state constitutions are generally similar to the federal Bill of Rights, although they sometimes use different language. As mentioned above, the states’ bills of rights sometimes go beyond the protections in the U.S. Constitution, particularly with more recently emerging protections, such as the right to an equal public education and the rights of crime victims. Twenty states adopted the Equal Rights Amendment even though it was never ratified to become part of the U.S. Constitution.

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Voters Legislature

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Commissioner 7"66*&&*"