Partisan Federalism

Article excerpt

Introduction  I. States as Sites of Partisan Opposition    A. Parties as a Safeguard of Federalism       1. Parties       2. Federalism       3. Origins    B. State Opposition to the Federal Government       1. Litigation: State Sovereignty       2. Legislation: Institutional Isomorphism       3. Administration: Uncooperative Federalism  II. PARTISAN IDENTIFICATION WITH STATES    A. Problems of Identity and Loyalty in American Federalism    B. Partisanship as Identity    C. Identifying with States  III. HORIZONTAL NATIONALISM    A. Federalism as a Safeguard of Parties       1. Keeping the Losing Side Alive       2. States as Laboratories of Partisan Politics    B. Identifying with Other States  IV. STATE ELECTIONS AND POLITICAL COMMUNITY    A. Bluman v. FEC: Political Engagement Across State Lines    B. McBurney v. Young: State Freedom of Information Acts  CONCLUSION 

INTRODUCTION

We cannot fully understand our federal system today without taking account of partisan competition. Consider a few recent snapshots:

In the spring of 2010, Republican officials in twenty-seven states filed lawsuits arguing that the Patient Protection and Affordable Care Act unconstitutionally intruded on state sovereignty. The Act was the signature achievement of a Democratic President and Congress; not a single Republican member of Congress voted for the law. And no Democratic state officials joined the federalism challenge. Instead, they defended the Act as a valid exercise of national authority. (1)

Several years earlier, Democratic officials in eight states passed laws to encourage and fund embryonic stem cell research in response to a Republican President's executive directive prohibiting the use of federal funds for such research. When a Democratic President assumed office, he brought federal policy in line with these state laws. (2)

Throughout 2011 and 2012, the Wisconsin gubernatorial recall election attracted financial contributions from across the country. Individuals nationwide saw the race as a contest between a burgeoning Republican "right to work" movement and a labor-friendly Democratic agenda. Both the incumbent Republican Governor and his Democratic challenger received contributions from all fifty states, with out-of-state contributions rivaling in-state contributions. (3)

In each episode, states functioned as important sites of partisan conflict, and partisanship, in turn, shaped state governance. Republican state officials challenged decisions by Democratic federal officials. Democratic state officials challenged decisions by Republican federal officials. And individuals from Alaska to Florida, Maine to Hawaii, saw the states as for a for national partisan fights.

Without an appreciation of partisanship's influence, dynamics considered fundamental to our federal system are obscure. Take, for example, the widely assumed role of states in checking the federal government. There is nothing essential about the nature of state governments that leads them to oppose their national counterpart, and courts and commentators are more likely to tout state contestation than to explain why it occurs. (4) Yet we do see substantial opposition. States argue that the federal government is exceeding its proper bounds and infringing state autonomy. They pass laws to prod the federal government into action or to resist its policy choices. And they push back against federal directives in carrying out federal programs. In recent years, states have challenged federal law regulating marriage as an intrusion on state sovereignty, adopted their own versions of failed federal legislation regarding greenhouse gas emissions and the funding of Planned Parenthood, administered federal immigration law in a decidedly uncooperative manner, and more.

A key, yet largely neglected, reason for these state challenges is partisanship. Put in only slightly caricatured terms, Republican-led states challenge the federal government when it is controlled by Democrats, while Democratic-led states challenge the federal government when it is controlled by Republicans. …