Optional Legislation

Abstract

Not since the 19th Century has partisanship been this intense. The only thing that Democrats and Republicans can agree upon, it seems, is that “Washington is broken.” Beyond the chimeras of bipartisanship or enduring one-party rule, this Article proposes a new solution to legislative dysfunction in Washington: optional legislation. Imagine that states could opt in to a federal program—say, universal basic income or Medicare for All—on the condition that they alone foot a higher tax bill to pay for the plan. States that opt out are completely unaffected because they do not have to contribute funds. Given that each party controls its own set of states, optional legislation enables each party to govern at the federal level with a degree of independence from the other. By comparison to nationwide bills that have the support of a single party, optional legislation would not only be more politically viable and resilient, but would also lead to more innovative and democratic policies. Optional bills hypercharge the “laboratories of democracy” afforded by our federal system, given that they enable states to experiment with programming that they would be unable or unwilling to administer on their own. This Article thus presents a new form of federalism engineered for eras of extreme partisan discord. Washington is indeed broken, and optional legislation can help fix it.

Keywords: federalism, legislation, partisanship, democracy, decentralization