The Virtues of Optional Legislation

Abstract

In this Article, we continue our work on a new solution to legislative dysfunction in Washington: optional legislation. Imagine that states could opt in to a new federal program—say, Universal Basic Income (UBI) 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 since they do not have to contribute funds. Given that each party controls its own set of states, this "optional" type of legislation enables each party to govern at the federal level with a degree of independence from the other. Optional legislation thus promises to break the legislative gridlock. However, its advantages are not merely strategic. By comparison to nationwide bills, we contend that optional legislation would better realize an array of democratic "virtues," leading to policies and debates that were more responsive, innovative, honest, and participatory. To be sure, optional legislation is not always appropriate. For instance, we should never agree to a checkerboard statute on the enforcement of civil rights. But when there is a "reasonable" policy disagreement—say, with respect to the provision of UBI—then optional legislation would score more highly than a nationwide bill on all four of these virtues.

Keywords: optional legislation, constitutional law, legislation, federalism, state compacts

JEL Classification: K10, K30