U.S. way had bad week
An Israeli visiting Washington recently told me that one advantage the United States has over Israel is federalism. The Jewish state has been paralyzed by mass protests of predominantly secular, liberal Israelis opposed to a religious, conservative coalition heading the government. Americans are divided along similar lines. But Israelis have only one government on which their political future depends. Americans channel conflict across 50 state-level democracies, some liberal and some conservative. In theory, that lowers the political stakes.
One reason the past week was a grim one in U.S. politics is that the federalism guardrail looked more brittle than usual. From Manhattan (where Donald Trump was indicted), to Madison, Wis., (where a brutal judicial election chipped away at legal norms) to Nashville (where Republican state legislators voted to expel two Democrats), state-level democracy was polarizing and dysfunctional.
Start with the Trump indictment. Yes, it’s a national story, because Trump is a national figure. But the legal infirmities of Manhattan District Attorney Alvin Bragg’s prosecution — and the damage it is likely to inflict on U.S. politics — arise out of the interaction between federal and state law.
The heart of Bragg’s indictment is that Trump not only recorded false business records (a New York misdemeanor), but that he did so to hide another crime (creating a felony). Bragg’s court documents, astonishingly, don’t say specifically what this secondary crime is. But they point out that Trump’s lawyer involved in the transactions pleaded guilty in 2018 to a federal campaign finance offense. Bragg’s theory might be that Trump’s business records were felonious under state law because they concealed a federal crime.
That’s an innovative and alarming use of federalism. The fact that the United States contains 51 independent legal systems — each state’s and the federal government’s — limits the power of each. Bragg appears to be turning this logic on its head: He wants to aggrandize his prosecutorial power by essentially laundering a federal campaign finance violation into New York state courts.
The Manhattan indictment raises the specter of other state prosecutors targeting national politicians from the opposing party. Most states have dozens of district or county attorneys with substantial independence, and the internet has expanded prosecutors’ geographical reach (because electronic communications involved in many white-collar crimes pass between states). If Bragg has set off a tit-for-tat cycle of politicized prosecutions, federalism seems as likely to accelerate as constrain the destructive trend.
Now to Wisconsin, where progressive candidate Janet Protasiewicz prevailed in a bitter campaign for state Supreme Court justice against conservative Daniel Kelly. Protasiewicz campaigned by all but announcing how she would rule on hot-button issues.
Legal legitimacy has typically depended on separation between the judicial and political branches of government — something the Constitution creates by granting life tenure to federal judges. But in Wisconsin, where state judges are elected, this contest suggested that the separation is shrinking.
Federalism is one reason why. Specifically, abortion federalism: The Wisconsin election was turbocharged by the Supreme Court’s Dobbs v. Jackson Women’s Health Organization decision last year overturning Roe v. Wade and giving states the ability to set abortion policy. Wisconsin has a restrictive 19th-century abortion law on the books, and Protasiewicz profitably aligned herself with pro-choice activists.
Giving states more authority over their own affairs can up the ante of state politics and trigger a breakdown of norms. Dobbs divested the federal judiciary of an issue not mentioned in the Constitution, but it could have at least the short-term effect of prompting state judges below the federal level to double down on partisanship and electioneering. That would change the nature of state judiciaries for the worse.
Finally, the institutions of state governance experienced turbulence in Tennessee. The Republican-controlled state House of Representatives on Thursday expelled two Democratic representatives who the previous week interrupted legislative business by occupying the floor of the chamber with a megaphone amid a protest at the state Capitol calling for new gun control laws. The expulsions — which required two-thirds support in the legislative body — were a lawful but unusually aggressive political act.
Tennessee Republicans might be restoring deterrence against the brazen disruption of legislative activities, but they have also raised the national profiles of the progressive legislators.
The episode is a reminder that the basic functioning of American democracy ultimately depends on forbearance, at least when a legislative majority has the votes to expel or disqualify members in the minority.
The excesses of state-level democracy under the Articles of Confederation in the 18th century created demand for a federal Constitution with greater centralized power. The federal government’s remit has grown throughout American history, but federalism remains a source of political flexibility and competition that gives the United States an edge over other countries.
If state institutions start to appear ineffectual, the balance of power will tend to shift toward Washington. Then political tensions that are litigated in statehouses across the country will become increasingly concentrated in the federal capital, making them all the more explosive and difficult to defuse.