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Compared to What?

Compared to What?

There’s as much to complain about with American federalism as there is to praise.

Suzanne Garment
The Divided States of America: Why Federalism Doesn’t Work
by Donald F. Kettl (Princeton University Press, 248 pp., $27.95)

Years ago, I had the pleasure of a friendship with Martha Derthick, who, along with the activities she most loved—gardening, architecture, basketball (Bill Russell in particular)—had a day job as possibly the country’s foremost scholar of American federalism.

Martha was a connoisseur of federalism’s role in James Madison’s intricate scheme of checking power with countervailing power. She was also an unequivocal Midwestern Republican. As national elections approached one year, and it looked like the GOP was on track to make a clean sweep of the presidency and both houses of Congress, I teased her: Didn’t she feel a twinge of unease at the prospect of all that unchecked power in Washington?

Martha waited a beat. Then, “I can cope,” she said. It was a more consequential version of Henny Youngman’s old joke:

“How’s your wife?”
“Compared to what?”

There wasn’t much use in evaluating American federalism except by comparing it to alternative arrangements that might otherwise be in place.

This principle comes to mind upon a reading of Donald F. Kettl’s immensely learned new book, The Divided States of America: Why Federalism Doesn’t Work. Kettl explores a modern paradox: We pay less and less attention to federalism nowadays despite the fact that it makes more and more of a difference to the quality of government we get.

The paradox has a history: Federalism began as a brilliant attempt to solve a problem of principle with a series of technical equivocations. With all the intricacies stripped away, the reason for federalism was slavery: There wasn’t room for sanctioning slavery and proscribing slavery within the same government arena. So, the arena was split into multiple arenas.

But the multiple levels became multiple opportunities for conflict and for negotiation over any boundaries that were less than clear and rigid, which—human nature being what it is—meant almost all of them. On one hand, powers not explicitly granted to the federal government as “necessary and proper” for its functioning were reserved to the states. On the other, the definition of what was “necessary and proper” was a federal decision.

Adjusting the tension required further ingenuity—which, fortunately, American politics had in spades. Early on, President Thomas Jefferson’s secretary of the treasury, Albert Gallatin, adopted the use of federal grants to the states to encourage them—but not force them—to undertake internal improvements. But there were limits to this kind of MacGyvering. Each administrative innovation that was designed to encourage federal policy preeminence over the states created a new arena in which states and, sometimes, localities became administrative agents for the national government. In turn, the new connections produced new forms of dependence by the federal government on the states—and new ambiguities, over which the different levels of government could negotiate once again.

If this sounds like a high-level story of infinite regress—or, less elegantly, a game of governmental whack-a-mole—that’s because, as Kettl explains, it was and is.

Kettl anatomizes in detail the way in which the generations of federalism succeeded each other, moving their focus from one policy area—civil rights, health care, the environment, infrastructure, education—and one administrative arrangement to another. The upshot today is that differences among the states are the chief drivers of inequality in citizen outcomes: “The government that citizens get depends increasingly on where they live.”

Sometimes, it’s the weight of particularity that overwhelms state policy: California’s climate initiatives, for example, are no match for its specific geography and burgeoning population. Sometimes the general principle—that is, the importance of state variation—is more paradoxical in its operation: Thus, in states where equality-seeking Democrats control state governments, inequality has grown faster than in places where Republicans are in charge.

There are reasons to believe that things are going to get worse: First, the American population is becoming more concentrated, so that the disparities giving rise to inequality will increase. Next, the squeeze on state budgets can be expected to intensify: Americans are getting older, and to the long list of the indignities of age we can add the increasing costs of our medical care. Third, the political polarization that has now smacked all of us in the face is making these changes harder to reverse.

Finally, there is an exacerbation that comes from outside the realm of administrative arrangements: It’s what Kettl calls, politely, “light-fare reality TV shows.” They’ve led voters to expect “reality-TV politics,” which populist leaders are willing to provide. The result is an increasing gap between the slogans we’re fed in national politics and the granular requirements of local political realities. “The complexities of infrastructure investment,” Kettl says, “just [don’t] have sound-bite appeal.… Local realities do not fit national reality-TV politics.”

It is hard to dispute Kettl’s analysis; so, is there anything that can be done to mitigate the consequences?

Kettl advocates applying what he calls a Hamiltonian solution to our Madison-created dilemma, bringing more concentrated federal power to bear on the central problem of state-created inequality. But Kettl doesn’t sound sanguine about the prospects for change. Derthick, one of the poles by which he orients his analysis, was not much more optimistic. She, too, worried about whether the balance required for the “compound republic” had shifted in a destructive and irretrievable way.

Derthick would have readily recognized the American federalism on display after the 2020 presidential election. In the first phase, memorialized in a phone conversation that the world heard on YouTube, President Donald Trump leaned hard on Georgia’s Republican secretary of state, Brad Raffensperger, to “find” the 11,780 votes that would be required to reverse Trump’s defeat in Georgia. The phone call featured the President insisting, asserting, hectoring. It included President Trump’s chief of staff, Mark Meadows, searching for a procedural compromise. Raffensperger was quiet, precise, implacably resistant: “The challenge you have is that the data you have are wrong.” “We’ve proved conclusively that [the ballots] were not scanned three times.” “We had our enforcement officers talk to everyone.” “Those numbers are not accurate.”

Then comes a second phase, after special elections in Georgia sent two Democratic Senators to Washington from the state, when the Republican-controlled Georgia legislature passed new voting laws that were derided by critics as the leading edge of a wave of nationwide voter-suppression measures rooted in vengefulness. The Georgia changes, Raffensperger said, are “positive, solid, measured election reforms.” They will make sure that the state has “very objective measures for absentee ballots, for identification of those voters, so that [the change] restores confidence.”

It’s the same Raffensperger. It’s American federalism. We’ll have to take it as a package. But, then, neatness, as Aaron Wildavsky reminded us, “has never been a prime American virtue.”

Suzanne Garment is senior editor of American Purpose.

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