At times, the past six months in the imposing state Capitol building in Indianapolis has seemed more like a track meet than a typical legislative session.
After the 2010 election expanded Indiana Republicans’ control of the state Senate and provided them a majority in the state House, GOP lawmakers joined with Republican Gov. Mitch Daniels to briskly advance a long list of conservative priorities. Together they adopted tough measures on illegal immigration (including legislation similar to Arizona’s controversial enforcement bill); expanded the school-voucher program; limited collective bargaining by teachers; and overrode local restrictions that prevent gun owners from carrying their weapons in many public buildings. To much fanfare, Republicans defunded Planned Parenthood and enacted a raft of constraints on abortion, including a ban on the procedure after 20 weeks of pregnancy—a provision that critics say violates the constitutional right to abortion that the Supreme Court established under Roe v. Wade in 1973.
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Two hundred miles to the west, in Springfield, Ill., the Legislature has marched, nearly as rapidly, in the opposite direction. Illinois Democrats have moved aggressively to leverage a 2010 election that maintained their party’s control of the state House and Senate and installed Democratic Gov. Pat Quinn for a full term. While devising a budget to salve the desperate fiscal condition, Illinois Democrats made permanent the state’s longtime moratorium on the death penalty. Quinn withdrew Illinois from a controversial federal illegal-immigration enforcement plan championed by President Obama, and signed a law that provides undocumented immigrants in-state higher-education benefits, including tax-advantaged savings. In January, the governor approved a civil-union bill that provides same-sex couples spousal rights equivalent to those of heterosexual couples. “It was,” Democratic state Rep. Greg Harris said with studied understatement, “a good year.”
These Midwestern neighbors aren’t the only states taking separate paths through what has become a busy, even landmark, year for state legislative action. Across an array of issues, red and blue states are pulling apart.
This process isn’t exactly parallel: Energized by their big 2010 wins, red-state Republicans have generally moved more boldly than blue-state Democrats to redirect state policy. But on both sides of the political divide, leaders in many states this year tilted away from the cautious centrism that often shaped the strategies of governors and legislators in earlier times. The result has been a banner legislative year for both gay-rights advocates and abortion opponents. Along the way, the ideological and partisan polarization that defines contemporary Washington increasingly appears to be infusing debates—and driving results—in state capitals as well.
“It is a time for extreme views,” said Richard Nathan, former director of the Nelson A. Rockefeller Institute of Government at the State University of New York in Albany, which studies state-level policy. “My recollection of government is that there are times when people work things out, compromise, bargain to get consensus. But there doesn’t seem to be much consensus-seeking [now] at the state level.”
There’s nothing new about states charting distinct pathways. Many thinkers have long championed the idea of states as “laboratories of democracy” that provide a testing ground for competing ideas. And some leaders in both parties agree that our federal system benefits from a built-in escape valve allowing states to craft responses to national controversies that reflect local majorities. But this year’s flurry of legislative activity is testing the limits of that theory by dramatically widening the gap between policies in blue and red states on polarizing issues such as abortion, gay rights, and immigration.
As so many states go their separate ways, no one can say for sure where exactly the line falls between variation that eases political tension and dissonance that intensifies it. “My own [instinct] is toward letting the states decide these things, because having national solutions imposed usually doesn’t solve the problem, and it keeps the pot boiling,” says Peter Wehner, a former senior adviser in the George W. Bush White House. “But at some point, you get people in different states pushing so many diverse laws with so many diverse views, it makes us less united as a country. All things being equal, we’d rather have the bandwidth narrower than wider.”
FEDERALISM OR FRAGMENTATION?
The contrast this year between red and blue states is most apparent on what might be called discretionary policies. On the biggest challenge facing state governments—budgets squeezed by the lingering economic slowdown—Democratic and Republican governors have displayed a surprising degree of strategic convergence. Generally speaking, states on both sides of the political divide have moved to close budget deficits by cutting spending rather than raising revenue (with Illinois as a notable exception). Even Democrats Jerry Brown in California and Andrew Cuomo in New York, presiding over the bicoastal two towers of blue America, have pursued givebacks from public employees.
Still, differences are apparent even on the fiscal front. Although both Democratic and Republican governors have sought budget concessions from state employees, many GOP governors and legislatures have gone a long step further by also seeking to curtail the bargaining power of the public-employee unions. Thirteen states—almost all of which have Republican governors and legislatures, and most with a strong history of backing the GOP’s presidential candidates—have pursued such limits this year. No state in which Democrats control the governorship and legislature has imposed such limits on public-employee unions.
Attempts to limit public workers’ bargaining rights have generated the most heated conflicts in state policy this year. But the pulling apart across the states is even more vivid on social issues such as abortion and gay rights. Despite the GOP’s huge state-level gains in the 2010 election that netted almost 700 state legislative seats, 2011 witnessed astounding successes in the expansion of gay marriage and civil unions, with five solidly Democratic states enacting legal recognition for gay couples. On the other side of the ledger, 15 mostly Republican-leaning states have moved sharply to restrict abortion rights. Illegal immigration has exposed the same centrifugal current: 15 mostly Republican-leaning states have adopted one or more tough new enforcement measures, while five blue states have either withdrawn from federal enforcement efforts or provided in-state tuition to the children of those here illegally. Red and blue states are also going in different directions on gun control and their response to President Obama’s health care reform law.
At some level, this patchwork of divergent approaches is exactly what the nation’s Founders intended when they established a federalist system that maintains substantial authority for the states (and rejected James Madison’s hope of a congressional veto over state actions).
Particularly on divisive social issues, some liberal and conservative thinkers have long argued that providing states more flexibility to set rules that reflect local mores could drain some of the venom from intractable national debates. Wehner, now a senior fellow at the Ethics and Public Policy Center, argues that the unending generation-long controversy over the Roe v. Wade decision legalizing abortion shows the cost of imposing a single national solution on divisive cultural questions. On gay marriage, he maintains, the nation would be better served by allowing states to go their own way rather than attempting to either guarantee or ban equal treatment through the courts or a federal constitutional amendment. “To have same-sex marriage now decided at a state level, and different state levels, makes the culture wars less heated than they otherwise would be,” Wehner says.
In the 2008 Republican presidential primary campaign, Rudy Giuliani, attempting to temper conservatives’ skepticism about his liberal social views, argued for allowing states more leeway to pursue their own course on social issues. If Texas Gov. Rick Perry seeks the nomination in 2012, he may use comparable arguments to soften resistance among more-moderate GOP primary voters to his staunchly conservative social views. From the other side of the ideological spectrum, Jeffrey Rosen, a law professor at George Washington University, has contended that returning control over abortion to the states by overturning Roe v. Wade would allow the nation to reach a “democratic equilibrium” on the perennial dispute.
Bruce Cain, a University of California (Berkeley) political scientist, agrees with Wehner that many Americans will probably welcome the trend toward diverging state policies. “We are a divided country, and if we were all mixed in one state, we’d be fighting to a standstill,” Cain said. “It may be a way of diffusing the tension somewhat to allow states to have different paths, and then people can choose to live in a state or not.”
As states pull apart, though, it raises questions of how far they can extend flexibility without either undermining nationally guaranteed rights or simply producing an unworkable jumble of cacophonous directives. After all, for decades, state-sponsored segregation was defended as an expression of distinctive Southern mores and preferences. Only decisive national action, first from the Supreme Court through the Brown v. Board of Education decision and then Congress through the 1964 Civil Rights Act, dismantled Jim Crow and ensured African-Americans that they would possess (if not always be able to exercise) equal rights in every state. The Roe decision did the same thing for women on abortion, overriding discordant state laws that permitted or prohibited the procedure.
The aggressive laws that states passed this year, particularly on abortion and illegal immigration, will likely keep federal courts busy for years determining whether they infringe on federal law or constitutional rights. Nathan, the scholar on state policy, believes that the deeper problem with the centrifugal movement isn’t so much legal as political: He sees the trend as reflecting a rising absolutist strain in American politics in which the majority party, no matter how narrow its advantage, pursues a winner-take-all agenda, at the national and the state level, that offers few concessions to opponents’ views. “You could argue that [this trend amounts] to reconciling diversity,” he says. “But I wouldn’t, because I think there’s a churning hardball-politics process at work within both the red and blue states. It doesn’t pretend that you’re going to have a consensus on the social issues or the role of government through deal-making or bargaining.”
It’s possible that the powerful centrifugal force evident this year in the states will prove a temporary surge driven mostly by the historic GOP gains in 2010. But other factors indicate that it could endure.
One reason is that so many states now lean reliably and durably toward one party or the other as Americans arrange themselves in their housing patterns along cultural, ideological, and partisan lines. Bill Bishop, the Texas-based coauthor of the acclaimed 2008 book The Big Sort, which chronicled the increasing tendency of like-minded Americans to flock together, says that the clustering phenomenon creates communities in which converging viewpoints encourage policies that tilt sharply left or right. Increasingly, he contends, the same dynamic is affecting states. “If you look at them, a lot of the states are tipping too,” he says. “And as these places begin to tip, their policies reflect more of the direction they are tipping toward. You saw that initially locally.… Now, as states begin to tip, you see those kinds of [dynamics] carrying over.”
Another factor is that state politics no longer are as resistant as they once were to the polarization and reflexive partisanship that characterizes Washington. Even as national politics grew more divided after the 1960s, governors often prided themselves on functioning as nonpartisan, pragmatic problem-solvers. The National Governors Association cherished its ability to produce bipartisan proposals for almost every challenge.
That has grown much more difficult to do, as governors (and state legislators) divide along party lines as reliably as their congressional counterparts do on issues such as climate change, immigration, or Obama’s health care law. The divergence evident this year among red and blue states is not so much a cause of our divisions as a reflection of the fact that no level of American politics remains immune to them. Allowing local majorities to follow increasingly inimical paths may indeed produce more “democratic equilibrium,” but at the price of institutionalizing the deepening divisions between these ostensibly United States.