Federalism and State Democracy
Texas Law Review, Vol. 95, 2016
Yale Law School, Public Law Research Paper No. 562
58 Pages Posted: 1 Mar 2016 Last revised: 18 Apr 2017
Date Written: April 5, 2016
When scholars, judges, and politicians talk about federalism, they frequently praise the qualities of state and local democracy. State and local governments, it is said, are closer to the people, promote more innovation, and produce outputs that are a better fit for the diverse set of preferences that exist in a large nation. But these stories about state democracy rarely wrestle with the reality of elections for, say, state senator and city council. Voters frequently know little about the identity or performance of officials in these offices or about political parties at the state and local levels. Voting in state and local elections is frequently “second order,” reflecting voter preferences about the President and Congress with little or no variation based on the performance or promises of state officeholders and candidates. State and local elections vary in the degree to which they are second order—chief executive races seem to be less second order than legislative ones, and elections were less second order in the 1970s and 1980s than they are today—but we see second-order voting behavior quite consistently across many state and local elections.
This Article addresses the consequences of second-order elections for federalism doctrine, policy making, and theory. First, it argues that virtually all of the ends of federalism—responsiveness, respect for diversity, laboratories of democracy, variation to permit foot voting, and so forth—are premised not only on state governments having authority but also on the success of state democracy at reflecting local needs and wants. Second, it shows that proponents of greater federalism focus largely on questions of state authority rather than the quality of state democracy, leading to proposals and doctrines that frustrate federalism’s normative goals. For instance, efforts to repeal the Seventeenth Amendment are premised on the grounds that doing so would give greater authority to state governments. But proponents fail to see that repeal would make state legislative elections even more second order. Further, proponents of more devolution of power either ignore or are hostile to efforts by the federal government or courts to shift power from state legislatures to governors, viewing the question as somehow not central to debates over federalism. Given that gubernatorial elections are less second order than legislative ones, cooperative federalism regimes or changes in state law doctrines that empower state executives should lead to policies that are more responsive to specific state needs. The Article also sketches several new paths for proponents of federalism that aim at reform of state government and state elections rather than changes to federal policy.
Finally, the Article shows that research on second-order elections reveals the emptiness of several prominent theories about federalism, particularly work about the “political safeguards of federalism.”
Keywords: Federalism, Soda, Affordable Care Act, NFIB, Partisan Federalism, Republican, Democrat, City Council, New York, Bloomberg, Kramer
JEL Classification: H70, D72
Suggested Citation: Suggested Citation