American democracy is in trouble. Trust in the federal government is near an all-time low, as only 19% of people trust the federal government to do the right thing most of the time, according to polling from the Pew Research Center. This concern is compounded by recent news that the Supreme Court will hear a case about the legitimacy of the independent state legislature theory — the idea that state legislatures have complete control over federal election procedures, even if state supreme courts say otherwise. This could mean state legislatures assigning electoral college votes, with no mind to what their own laws or state courts have to say on the matter.
As liberals venture into a federal landscape that seems to be opposed to their interests in every way imaginable, it may be time for progressives to do what conservatives have been doing for decades: focus on winning statehouses. The Electoral College, a Supreme Court that has made enforcing the Voting Rights Act nearly impossible and the filibuster are all structural advantages that Republicans hold in our political system.
In the days following Politico’s bombshell release of a draft Supreme Court opinion that was poised to overturn Roe v. Wade — the precedent that has protected the right to abortion for nearly 50 years — many Democrats were left scrambling.
“Where the hell is my party?” asked California Gov. Gavin Newsom, a Democrat, at a May 5 press conference. “This a concerted, coordinated effort. And yes, they’re winning. … Let’s acknowledge that. … Where’s the counter-offensive?”
These comments are even more prescient in the wake of the official Dobbs v. Jackson Women’s Health Organization decision overturning Roe v. Wade.
Newsom’s criticisms, though directly focusing on abortion, are widely applicable to the Democratic strategy in 2022, 2024 and beyond. Adam Jentleson, former staffer to the late Senate Majority Leader Harry Reid, D-Nev., posited that Newsom’s speech “reflects a growing sense among Democratic pros that there is a leadership vacuum and no plan — short-term, long-term or otherwise — to deal with the threats we face.”
President Joe Biden’s strategy for keeping Democrats in power seems to have been to pass popular, common-sense policies focused on material change in people’s lives. The Inflation Reduction Act, the American Rescue Plan and the Infrastructure Investment and Jobs Act are some notable examples of this.
Moderate Senate Democrats — namely Sens. Kyrsten Sinema, D-Ariz., and Joe Manchin, D-W.Va. — have consistently opposed the attempts to abolish or change the Senate filibuster to enable this transformational agenda. As of yet, Senate Majority Leader Chuck Schumer, D-N.Y., has been unable or unwilling to offer appropriate concessions or threats to these two red state renegades.
With Congress’s failure to pass substantial voting rights and anti-gerrymandering legislation, Democrats are looking at being locked out of federal government for a decade. The first years of the Biden administration have seen an outright failure to correct the structural advantages Republicans have attained and maintained through the decades.
So what is the solution for a Democrat frustrated by an unwillingness or inability of Democratic leadership to corral their own senators? Retreat to the statehouse.
For decades, Democrats have been outspent and outgunned at the state legislative level. This reached its peak in 2016, when Republicans controlled 32 statehouses. Today, Republicans have unified control of 30 state legislatures, and Democrats control only 17. Haley Barbour, past Republican National Committee Chairman, described the goal as making “self-reliant state parties.” A similar guiding sentiment does not exist on the Democratic side, due in part to fundamentally different goals.
There are several reasons that Democrats are less interested in state government than Republicans. Principal among those is that the GOP can accomplish many of its important priorities, such as tax cuts, gun rights, abortion restrictions, school choice, from the statehouse.
Democrats, on the other hand, would have little luck enacting comprehensive immigration reform, combating climate change or passing universal health care at the state level. It’s not that these issues are too complex to be dealt with on a state level, but instead that individual states have constructed political systems that make this sort of policy-making nearly impossible.
The states, once referred to by Supreme Court Justice Louis Brandeis as “laboratories of democracy,” are proving ineffective at actually experimenting. This isn’t because state legislators are so much more small-minded than their federal counterparts, but because most state governments are severely restricted.
Take New Mexico for instance. Joe Biden won the “Land of Enchantment” by almost 11%. With a Democratic trifecta in the statehouse, an outside observer might expect New Mexico to pass policies combating poverty, drug addiction and child neglect. The reality is much more restrained. New Mexico, with a “citizen’s legislature,” wherein legislators are given a paltry per diem for lodging and have only 90 days of legislative sessions every two years, is ill-equipped to pass substantial legislation. These extremely short legislative periods don’t give lawmakers a lot of time to execute good policy; they don’t have time to take full advantage of their laboratory of democracy.
New Mexico is not an outlier in having an anemic state government. Even among states that pay their legislators a base salary, the average compensation is only $39,216, according to the National Conference of State Legislatures, and nine states do not pay their legislators an annual salary at all. Insufficient salaries restrict the halls of capitol buildings to the already wealthy, with profound effects on legislative quality. This gives state legislators who have to work full time (school teachers, small business owners) much less time to devote to legislation than wealthy legislators — lawyers, auto dealership owners and others. New Mexico is not an anomaly in short session length: Louisiana’s 2023 legislative session, for instance, will start on April 10 and end on June 8.
California pays legislators a very respectable $114,877 per year, but even this progressive stalwart has other institutional challenges that make governing difficult. One of California’s most acute policy challenges is the affordability of housing, an issue that their legislature has, as of yet, been unable to ameliorate with long legislative sessions and well funded legislative staffs.
California’s Proposition 13, passed in 1978, allows for property owners to severely undervalue their properties, permitting them to pay only 2% of the 1978 value in annual property taxes, even in 2022. This means that those who would otherwise downsize continue occupying homes that would be occupied by growing families, worsening an already acute housing shortage in California. This one piece of land use policy has made California one of the most unaffordable states in the country, with minimal options because of Proposition 13’s constitutional protection.
Michigan’s legislature is noteworthy for offering both a respectable salary and year-round legislative session, but there still exist significant issues with both political structure and state capacity that prevent addressing basic policy questions (i.e. fixing the damn roads!) One of these issues is Michigan’s legislative term limits, which incentivize legislators to spend more time networking for their next gig in Lansing than solving complex problems.
To put it simply, states are woefully unprepared to pick up the slack if and when there is a federal administration that is fundamentally hostile to people interested in a government that does stuff. In the medium term, progressives may find themselves without a means to effect change federally. That makes it all the more important that progressives retrofit their state institutions for the coming decade of perpetually gridlocked rule.
Some — such as David Shor, a pollster for President Barack Obama — estimate that if Democrats lose their trifecta in 2022 they could be locked out of a unified government until the early 2030s. This makes it all the more important in the coming months that Democrats set up a framework that allows states to work around a hostile federal government.
Some would prefer an alternative to this retreat, as it would mean abandoning those who find themselves unlucky enough to live under a Republican state government. I prefer the alternative perspective; we are not abandoning those in red states, but instead rolling out the welcoming mat. This past Fourth of July weekend, Newsom ran ads in Florida encouraging citizens to move from Florida to California.
This proposed decade of progressivism faces roadblocks: lethargic state institutions, GOP entrenchment and public apathy. That being said, Americans generally have a positive view of their state governments: 54% of Americans have a favorable view of their state governments. compared to 32% of Americans who are favorable toward the federal government. This effect is compounded when you look at a state where the pollee’s party is in power.
There is only one outlet for the growing progressive frustration. Many observers, myself included, see a huge opportunity for blue states to achieve wonderful things as the federal government atrophies and acidifies, but these things are possible only if we invest in statehouses, state elections and state capacity.
Julian Barnard is the Editorial Page Editor & can be reached at firstname.lastname@example.org
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