Liberal Democracy and the Federal System
The American federal system and the various Supreme Courts that have defended its boundaries impose firm limitations on what system-wide reforms are possible. To many it seems impossible to make any meaningful improvement to American governance without amending the Constitution, something that requires a massive supermajority.
But American federalism need not be the enemy it is believed to be, nor the Constitution an impediment to reform. Many of America’s most stubborn and terrible problems stem from the disproportionate amount of power available to local governments, rather than state governments. A great deal of progress can be made by looking to the past century of experiments in liberal democracy around the world—including those liberal democracies specifically organized as federal systems like ours—and implementing, at the state level, the lessons that have been learned.
We Americans tend to overestimate the importance of written capital-C Constitutions. England, which lacks a written constitution, until very recently had an education system that was dominated at the local level to a similar extent that ours is.[1] The small-c constitution—that is, the character of the system in practice—is always of greater practical importance. It is, for example, our small-c constitution that makes our capital-C Constitution matter in the first place: when the Supreme Court rules that some statute or administrative action or private behavior violates the written document, government actors at each level will more or less comply with the ruling. This deference is entirely a function of the small-c constitution. Words on paper do not create a culture of compliance.
The truth is that the relationship between the words on paper and the rules that actors in the system actually perceive and respond to is often indirect at best. Congress could not federalize all of the police in the nation—this is an uncontroversial fact. But it’s not because our Constitution says they couldn’t. It is because our Supreme Court would say so, and Congress and whoever was president would both accept the authority of that verdict. The Court would justify it in terms of their interpretation of the text of the Constitution, though relevant precedent might also be cited. But the fundamental reason that Congress couldn’t federalize the police is that the state officials would challenge it, the Court would side with them, and Congress would accept the verdict. And the reason that state officials would take matters into court rather than resisting by force, and that the Court would side with them, and that Congress would then accept the verdict, has very little to do with words on paper, and everything to do with the expectations on the part of everyone involved of what everyone else involved expects and believes is supposed to happen.
In other words, the small-c constitution is shaped by norms of various kinds,[2] and those norms are in turn shaped more by what happens in social practice than by what has been written in the law books and Constitutional parchments. In England, despite lacking a federal structure, a written Constitution, or a Supreme Court likely to interfere in any action taken by Parliament to centralize education, local actors retained power over education for a very long time. When reforms were pursued in the late 20th century, they in turn were possible only because of the long established norm of Parliamentary Supremacy.
All of this is to say that many of the most stubborn problems in America have little to do with the federal Constitution. And the upside of that is that a great many of them can be tackled without amending that document.
America’s problems are local
Whether it’s education, policing, housing, or any number of other high-stakes topics, the roots of our system’s persistent problems are invariably found in municipal and county governments who resist intervention by their state government, never mind the federal one. Indeed, surveying the more than 13,000 school districts governing nearly 100,000 public schools, education scholar Paul Manna commented that “one strains to call it a system at all.”[3] One Washington Post analysis of policing meanwhile notes that:
[T]here are more than 12,200 local police departments nationwide, along with another 3,000 sheriff’s offices. (. . .)Nearly half of all local police departments have fewer than 10 officers. Three in 4 of the departments have no more than two dozen officers. And 9 in 10 employ fewer than 50 sworn officers.
Aside from the intractable problem of reforming practices one at a time across more than ten thousand individual organizations, there are structural problems at so small a level that strongly resist reform. In an incisive article on housing politics, Will Wilkinson notes that wealthy homeowners are better positioned to use local politics to block new housing in their neighborhoods than poorer homeowners and renters.
Among other things, this tends to push development into poorer, less white neighborhoods where participation in public meetings is less likely and resistance to proposed projects is less stiff. This often leads to gentrification and the displacement of long-time residents who get priced out of the neighborhood.
(. . .)Poorer renters might not need to oppose a gentrifying new condo or apartment complex if wealthier homevoters hadn’t chased it out of their neighborhood first. When a project is being considered for a posher part of town, that’s when poorer renters really need to show up to defend their interests. But how are you supposed to know about a proposed development in some wealthy neighborhood? How are you supposed to know that there’s a good chance that it will end up in your neighborhood if it’s rejected elsewhere?
Moving community accountability down to the neighborhood level creates bad outcomes at the larger level. The problem therefore needs to be shifted up to a level of government in which both the poor renters and the rich owners are better represented.
Many problems can be tackled by taking such an approach, but in order for them to work well, fundamental changes need to be made to the structure of state governments. Changes that are undeniably politically difficult to pull off, but far more practically attainable than far more modest reforms at the federal level.
Muscular state government
The median country’s population is roughly 5.5 million. The median US state’s population is 4.5 million. So while the typical state is smaller in scale than the typical country, it is not drastically smaller, and there are dozens of countries that are smaller than Wyoming, our smallest state. Moreover, Wyoming, at a population of 576,851 on the 2020 Census, is 3.6 times larger than the median American city’s population, which is 158,407. In short, even our smallest states are big enough to enjoy the benefits of those aspects of good governance that require spreading costs across and coordinating at a higher scale. Wyoming is no California, but it has a great deal more scale than even the median municipality in California (which is slightly smaller than the national median).
The tax bases for the states vary wildly, but here it is GDP per capita rather than population that matters, and the smallest states are not necessarily the poorest states; indeed many of the very poorest states are well above the median in terms of population. Equalizing the fiscal capacity of the states must be handled at the federal level, something we will return to below. Suffice it to say for now that this is not difficult to accomplish institutionally, even if, like any reform, it would be a challenge to sell politically.
What I wish to make clear at this stage is simply that all American states have the scale to become well-governed liberal democracies in their own right, though there are few that I would describe in those terms today.
In policing, in education, in land use regulation, and any number of policy areas, creating a more integrated system at the state level provides opportunities for drastic improvements. I emphasize integrated because it need not necessarily be very centralized in decision making. The English education reforms of the Blair years centralized control in several respects but also further decentralized most decisionmaking down to the lowest level, the schools.
The key, again, is integration into a single statewide hierarchical system, even where there is devolution in effective decision making to a significant degree. A key reason for this is that America’s relatively independent local authorities are too frequently overmatched by better organized and better funded groups. Noting the relative strength of American teacher’s unions compared to his country’s equivalents, British education reformer Michael Barber noted:
First, in any given jurisdiction there was only one union, whereas in England all six unions competed in every school building. (In fact this competition for members was the only pure market in English education at the time.) Second, the American teachers unions, partly because they were monopolies in each jurisdiction, charged much higher dues. Third, unions used that money to fund political campaigns both at state and at district level.[4]
The British government also simply was and is stronger than either our federal government or a typical state government. Americans like to think of their government in terms of “checks and balances,” but it is precisely on these terms that our system too often fails. Rather than busting up teacher’s unions, which is the preferred approach of Republicans and individual politicians who butt heads with them, we ought to break up union monopolies by mandating statewide competition among multiple teacher’s unions each time a contract is up. And these unions ought not to be negotiating with flimsy local school boards that are all too easily bent to their will, they ought to negotiate with representatives of the state government who carry the institutional memory and resources to effectively manage long term relationships of that kind.
One of the more unsavory aspects of American policing is the way localities have become dependent on fines to fund basic services. Some states have attempted to address this through legally mandated caps on the percentage of revenue that can come from fines, but this is difficult to enforce. Without an administrative apparatus to crack the whip on the municipalities, these laws have little teeth. Even the most norm-abiding of local governments will be forced by necessity to break state imposed caps if their tax base shrinks enough. In St. Louis County, Mo. and neighboring localities, extensive reliance on predatory fining made life a living Hell for residents and was a key condition of the unrest the region saw in 2014.
What is needed to do away with this aspect of our system, which most who do not have a stake in it agree is terrible on the merits, is a reconfiguration of police governance rather than a new state statute attempting to impose a rule under current arrangements. Let us end the practice of police salaries paid for out of local tax dollars, and integrate all of them into a statewide system, remunerated out of the state budget. Impose high statewide standards for certifying someone to work in law enforcement of any kind, and create a statewide system for career advancement. Abolish elected sheriffs entirely. Finally, put fine revenue into a state fund that cannot be touched until several years after the money is first put in, to limit short term reliance on it and also to take away the ability of the police to apply pressure by restricting fine revenue.
Again this need not entail centralized decision making. Devolution to particular precincts and departments may be the best approach in terms of using local knowledge. But statewide integration and professionalization can help foster a certain baseline caliber, and more to the point facilitate a statewide system of accountability. For example, an officer fired for misconduct in one town could not simply apply to a job the next town over—unless he crossed state lines.
Like the case of teacher’s unions—but with significantly higher stakes—this also checks the organized, politically effective strength of the police with a larger, stronger actor than most local governments are capable of mustering. Police unions are infamous in both the extremity of their public rhetoric and in the effectiveness with which they steamroll elected officials. The case for outlawing police unionization outright is much stronger than in the case of teachers, but if this is too politically intractable a similar statewide multi-union competitive approach might make a meaningful difference.
Statewide integration is not a panacea, and I wouldn’t want to give the impression that it is. As Wilkinson put it, “regulation at any level can be captured by special interests. Sometimes the best solution is to shift or share regulatory authority to/with a level of government that has not been captured.” In the case of land use regulation in states like California and New York, it’s overwhelmingly the case that it has been captured at the local level. But that does not mean that statewide actors are invulnerable, any more than federal actors have proven invulnerable to capture.
No one element in a system can make the system as a whole work the way it should. That is why a muscular executive branch needs to be paired with an appropriately responsive and assertive elected branch.
Democracy and the states
If we wish to pursue executive integration at the state level, as proposed in the previous section, we will need to address the chronic problems of America’s elected branches. A comparative perspective suggests that reform should focus on consolidating the number of elected offices, moving towards the proportional parliamentary model, and withdrawing the state government from the party nomination process.
America is truly “exceptional” in the number of elected offices we have at the state level and below. As the authors of the comparative text A Different Democracy put it:
The contrast between the United States and most other democracies is even greater below the national level. At the state and local levels, judges are also frequently elected in addition to legislative and executive officials. Furthermore, not only the chief executives, like governors and mayors, are popularly elected but also other executive officers, such as, in California, as many as six state officials in addition to the governor and lieutenant-governor: the secretary of state, attorney general, superintendent of public instruction, treasurer, controller, and insurance commissioner. No other democracy comes even close to the American system of directly electing very large numbers of legislative, executive, and judicial officeholders.[5]
As has been noted since at least J. S. Mill’s Considerations on Representative Government,the basic dynamic of presidentialism (which also applies to governors) is that the president has an independent relationship with voters. His relationship to the legislature, even when nominally controlled by his own party, is therefore more akin to an electoral rival. This rivalry cuts against cooperation, which means in practice that a great deal of a given legislative session is spent in high profile conflicts with the separately elected chief executive. This limits the ability of either side to act, which in turn makes it harder for these elected officials to work together to dictate how the unelected components of the system ought to behave.
In America at the federal and (save for Nebraska) state level, we make matters worse with what is called symmetric bicameralism; our legislatures all have two chambers, both of which need to assent to every piece of legislation or budget. Bicameralism is not rare among our peer nations, but most are like England’s, where the upper house by convention defers to the lower house on most matters, or at most like Germany’s, where the specific subset of matters the upper house is involved in are delineated by law. Symmetric bicameralism like ours is very unusual, and undesirable for much the same reasons that presidentialism is undesirable.
Then, as the authors of A Different Democracy pointed out, you have a varying array of other executive positions that are separately elected, giving them independence even from the chief executive. And at the local level you have a similar menu of positions randomly up for election, which makes matters worse along this dimension of governance overall. And we are the only country in the world with elected judges, a practice we would most certainly be better off without.
This problem is compounded by the weakness of our political parties. The party has long been the chief form through which elected officials are organized for action. One can think of it as akin to a union, but for elected office. The party members can work together to promote the platform that enjoys the most overall popularity, to impose that platform on the unelected branches, and, crucially, to extract the best overall deal from interest groups.
The unusual strength of interest groups in the American system is enabled to no small degree by the weakness of our parties, for it is a commonplace in the American political science literature that there is an inverse relationship between party organization strength and interest group strength[6]. By combining their individual bargaining power behind a single party organization, they’re put in a better position overall in negotiations with interest groups attempting to apply pressure. But without the ability to impose some kind of party discipline, individual members will likely try to engage in side-negotiations for their own narrower benefit. Since the party organization in America does not control its own nomination process, its ability to enforce party discipline is significantly limited.
The weakness of our parties, along with the multiplication of our elected offices, gives interest groups a great deal of room to shop around for influence. Consolidating the offices up for election and strengthening parties would go a long way towards reining in our out of control interest group system.
Finally, there is a certain amateurism throughout state political systems. At the most local level, you find people running for school boards who have no relevant experience whatsoever. They are easily outmaneuvered by teacher’s unions and other professionalized, well financed interests. But even at the state level you too often get terribly underfunded legislatures that are easily captured by interest groups of various kinds. In the most extreme case, the legislators of New Hampshire make only $100 per year.
The ideal of being Cincinnatus only temporarily leaving his farm for public service is, to put it mildly, at odds with the reality of governance in a liberal democracy. Professional lobbyists and civil servants need to be matched by equally adept professional politicians, organized into professional parties for effective action. I would extend this point further to include ballot initiatives and recalls: voters are, by their nature, amateurs. Asking them to directly vote on specific legal language is not likely to result in good law, and in practice this process has been captured by activists and employed in strategically low turnout elections in a way that tarnishes even its democratic credentials. Recalls suffer from the latter problem as well.
But we don’t want to strengthen our parties only to end up with outcomes like Canada’s in 2015, when the Liberal Party won more than 54 percent of the seats with less than 40 percent of the votes. State legislatures, like the House of Representatives or Canada’s House of Commons, are elected on the basis of one seat per district, in which the winner is simply whoever has the most votes (a plurality), no matter how far short of a majority that might be. Thus if you had ten candidates for a particular district who more or less evenly split the vote, you could end up with a congressman who won only 10 percent of the votes plus a single extra vote. This rarely happens even when there are multiple parties, because winning seats confers a name recognition advantage in future elections, and so small parties that never win any seats tend to fail to win even a single percentage of the votes over time. What is more common is one or two minor parties who manage to win a cumulative 10 to 15 percent of the votes. This, however, is more than enough to ensure that the party that controls the government is consistently put there by a minority of voters.
Strong parties need to be paired with a system that ensures control of the elected branch is only possible among those parties that represent at least a majority of voters. This is trivially easy from a political science perspective: simply make statewide districts for all members of the state lower legislative house and allocate the seats based on a proportional method. Any of the known methods will get the job done, including the mixed method used by Germany and New Zealand. This would do away with problems like gerrymandering altogether, and guarantee a proportional result even with a relatively large number of competitive minor parties.
In most states this step could be accomplished by passing a statute, as could much of the consolidation of elected offices into appointments or positions in a career civil service model. Getting the state government out of the party nomination process entirely can also typically be done by passing a statute, and would go a long way towards strengthening party organizations.
Some offices, however, cannot be modified without a change to the state Constitution. And in almost every case, moving away from symmetric bicameralism, as well as changing the relationship between the governor and the legislature, would as well.
There is a range of procedures that states have for amending their Constitutions. The easiest is the California ballot initiative process, which requires only signatures comprising the equivalent of 8 percent of voters in the gubernatorial election in order to initiate, and then only a simple majority of votes to pass. This is arguably easier than it is to pass a bill through the federal legislative process. On the other end are procedures that are like the federal amendment process in miniature; a supermajority of both houses plus ratification by voters. While these are clearly harder to pull off than passing a federal bill, they are incomparably easier to clear than it is to amend the federal Constitution.
Many things are possible at the state level that are effectively impossible at the federal level. It would be easier from a procedural perspective to turn at least one state into a pure parliamentary government with proportional representation than it would be to simply change the method by which we select the president. This does not mean that the former is politically feasible. But politics is the art of the possible, and quite drastic Constitutional reform is much more possible at the state level than minor Constitutional reform is at the federal level. The political imagination of our commentator and activist class ought to take this into greater consideration.
What sorts of possibilities ought we to imagine?
In terms of legislative chambers, most large, stable liberal democracies have what the authors of A Different Democracy term “medium symmetry” between the upper and lower house, where the upper house is narrowly involved in the legislative process. This is a good way to add some stabilizers to the elected branch without going all the way to the gridlock typical of the federal government. The upper house could retain the single-member districting approach with a ratio of members to population fixed by law at the Cube Root Rule (or something similar); this would have the advantage of having a chamber dedicated chiefly to constituency services[7]. Or one could have a unicameral legislature with a mixed proportional representation system on the German model, so that a subset of the seats are single-member districts but the overall share of seats by party ends up being proportional.
Deciding the apportionment method is, again, something that can typically be done with a normal statute rather than an amendment. But beyond adjusting the nature of the bicameralism, what really needs to be addressed is the relationship of the legislature to the chief executive. It seems politically unlikely that reformers could sell a straightforward parliamentary system—in which the cabinet, including the chief executive, are chosen by a simple majority of the lower house and can be removed on that basis—to American voters.
However, simply providing the lower house with a procedure for unilaterally removing the governor without cause (that is, without needing to charge the governor with some offense first) would move us closer to a parliamentary dynamic. Perhaps it would have to be a supermajority vote still, but voters could be convinced to accept something lower than two-thirds. Best of all would be a simple majority, at which point the governor truly becomes accountable chiefly to the legislature, who can remove him at any time, as opposed to voters who only get the option at the end of his term.
We should not discount the possibility that there is at least one state that could successfully adopt a conventional parliamentary model with proportional representation. But even if one chooses to be fatalistic about it, there are many features of those systems that can be adopted in the meantime to improve upon the model that Americans are most familiar with.
Fiscal federalism and other tools
The fiscal capacities of each state government on their own varies enormously. The services they can provide are therefore similarly varied. As the sociologist Josh McCabe explains:
Criticisms of poor states as “low tax, low service” are fundamentally mistaken. In general, poor states exert similar fiscal effort as rich states, but generate a fraction of the revenue for education and social assistance due to the simple fact that they’re poor.
He also notes that “States like New York have erected a number of barriers to housing construction, making residency unaffordable to all but the most productive workers, and thereby concentrating taxable resources within their state borders.” In other words, our federal system has been stuck in a bifurcation between poor states that can’t afford to invest in government provided services, but attract more poor residents because the costs of living are lower, and rich states who can afford to pay for services but have taken measures to make sure that only the most lucrative taxpayers are able to live within their borders.
Other federal systems have more or less solved this very problem. As McCabe notes, Canada at the national level does a great deal to equalize the budgets available to each provincial government. Germany has an extremely complex system of fiscal federalism but has the same basic progressive result as Canada’s. America’s federal fiscal policy on the other hand is on net regressive. There is no reason why a citizen of the wealthiest nation on the planet should receive worse public services simply because they happened to be born in Mississippi rather than Massachusetts. There is no Constitutional (nor constitutional) impediment to implementing a more progressive fiscal policy in this regard.
Historic efforts at building up the capacity of states have been too clever by half. Federal education policy, which began most robustly with the 1965 Elementary and Secondary Education Act (ESEA), aimed to strengthen state education systems rather than impose a federal policy per se. Though substantive federal ambitions have grown over time, most famously in the 2001 ESEA reauthorization known as the No Child Left Behind Act, nevertheless the bulk of federal activity has been funnel money into particular state education programs.
The problem is that every single dollar comes with strings attached, and the bulk of it comes through Title I of the ESEA, which is specifically concerned with disadvantaged students. Financing of this kind creates significant compliance costs. Federal education spending ultimately ended up helping to create state departments of education where many had not previously existed, but their work was overwhelmingly performing banking-like functions, acting as stewards of federal funds, attempting to maintain compliance in how they were disbursed[8]. For those familIar with the downsides of means testing, you can roughly think of federal education dollars as being highly means tested.
Things have, if anything, worsened in this regard since the 2001 reauthorization. In addition to general per-person budget equalization, we should follow the Canadian example and provide generous education subsidies to the states with few strings attached other than the general proviso that they be used specifically for education.
Beyond improving our fiscal federalism, the federal government can be used to help cultivate a multiparty system across the country by updating a 1967 statute that mandates single member congressional districts. Because multimember districts are even more disproportional when winners are chosen by plurality, this law was passed with the best of intentions. But it makes the use of a proportional method for allocating House seats illegal; it need only be updated to state that multimember districts are allowed if any of a specified set of proportional methods are used.
And of course, we should pass fresh bills to strengthen the enforcement of the 14th and 15th amendments in voting rights and other areas as soon as politically possible. One would have thought that such a thing was politically possible with one party controlling Congress and the White House after the other party attempted to sabotage the most recent election, but then, we have already discussed how little this “control” amounts to in practice.
But unless something changes about our federal amendment process, Constitutional reform is not worth investing with serious consideration.
In defense of constitutional imagination
Policy reform absorbs most of the energy and resources in activist spaces and in the public political conversation more generally. This makes sense, of course, as implementing a specific rule or program is a goal that could conceivably be achieved in a handful of years, or even, in some cases, within a year or two.
In as much as you see governance reform at all, it is for things like Ranked Choice Voting which ameliorate some of the risks of crowded primaries, but in so doing, serve to further entrench the primaries themselves and therefore our strict, weak two-party system. They are a marginal improvement in a time when the hunger for structural change is rightly felt by many.
Absent a true constitutional crisis, significant structural change at the federal level is very likely off the table. But it is very much on the table at the state level, and by extension at the local level. The fact that it cannot be accomplished in one go, with one federal policy implemented across all fifty states, is no reason to dismiss it. Meaningful change in a few big states can make a difference to a great deal of Americans. If structural change is possible at this level, we ought to at least think about what we might want.
And structural change is possible. The many experiments in liberal democracy around the world and provide an ample guide for the direction such change should take.
[1] Michael Barber, “English Perspectives on Education Governance and Delivery.,” in Education Governance for the Twenty-First Century: Overcoming the Structural Barriers to School Reform, ed. Paul Manna and Patrick J. McGuinn (Washington, D.C.: Brookings Institution Press, 2013).
[2] See a useful taxonomy in Jack P. Gibbs, “Norms: The Problem of Definition and Classification,” American Journal of Sociology 70, no. 5 (1965): pp. 586-594, https://doi.org/10.1086/223933.
For a discussion of the role of the beliefs and expectations about what other people’s beliefs and expectations are, see also Gurri, Adam. “Law and Social Action.” Working paper. https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3808658.
[3] Paul Manna, School’s in: Federalism and the National Education Agenda (Washington, D.C.: Georgetown University Press, 2006), Kindle Edition. Location 69.
[4] Michael Barber, “English Perspectives on Education Governance and Delivery.,” in Education Governance for the Twenty-First Century: Overcoming the Structural Barriers to School Reform, ed. Paul Manna and Patrick J. McGuinn (Washington, D.C.: Brookings Institution Press, 2013). Page 213
[5] Taylor, Steven L.; Shugart, Matthew Soberg; Lijphart, Arend; Grofman, Bernard. A Different Democracy: American Government in a 31-Country Perspective. Yale University Press. Kindle Edition. Location 2181-2189.
[6] James W. Ceaser, “Political Parties—Declining, Stabilizing, or Resurging?,” in The New American Political System, ed. Anthony Stephen King (Washington: The Aei Press, 1990), 122-123.
[7] On what electoral rules encourage representatives to engage in constituency services, see Norris, Pippa. 2006. “Ballot structures and legislative behavior” In Exporting Congress. ed. Timothy Powers and Nicol Rae. Pittsburgh: University of Pittsburgh Press. Pp.157-184.
[8] Paul Manna, School’s in: Federalism and the National Education Agenda (Washington, D.C.: Georgetown University Press, 2006), Kindle Edition. Location 2082-2443.
Featured Image is View of the carved stern of the Maryland Federalist, by Diiscool
