Politics & Policy

For the Defense

Federalism'n'me.

On Friday, Ramesh Ponnuru penned an article called “Thompson’s Tort Trouble.” While he referenced my conservative voting record he took issue with two instances when I voted against “tort reform.” He noted my stand on federalist grounds but thinks I must have a mistaken view of federalism and that conservatives may want to ask me a few hard questions.

This hardly constitutes the stuff of a major dispute, but I would submit that the problem is not so much my mistaken view of federalism as much as it is his lack of commitment to the principle. This presents conservatives with an opportunity to have a much needed discussion.

First let’s discuss the two cases that Mr. Ponnuru cites. The first case involves the issue of “preemption.” Congress routinely passes laws and resulting regulations which are in conflict with state laws and regulations. These federal laws do not state whether or not they are intended to preempt the state regulations. Clearly, members of Congress don’t want their constituents back home asking why their state authority has been stripped. But Congress can have it both ways. They leave the legislation ambiguous, knowing that the federal courts will more often than not interpret the statute as preempting state law, allowing elected officials in Washington “the federal court did it, I didn’t” excuse. This allows for no debate on the issue in Congress, just a decision by that source of so much conservative affection: the federal judiciary.

Mr. Ponnuru begins with the assumption that federal preemption of state regulations is inherently a good thing (how federalist does this sound so far?), because then companies won’t have to keep up with all the state laws. I recognize that changes in transportation and communication have created legitimate federal interests where none previously existed. My votes reflect that. But the idea that the commerce clause allows the feds to regulate anything effecting commerce, no matter how remote, hopefully, is something we can all agree is not acceptable. But I digress. Actually my alleged offense had nothing to do with that. Rather it was the fact that I introduced a bill that essentially said, “Congress must state whether or not the federal legislation is intended to preempt the state regulation.” Period.

Mr. Ponnuru not only seems to favor federal preemption in general but thinks that Congress should not be required to acknowledge the fact that it is preempting. Ponnuru says that if my proposal had passed, “the practical result would have been a gold mine for trial lawyers…” (although he doesn’t say how).

I disagree. The practical result would have been an open debate as to whether, in any given instance, preemption is a good idea then we would have had a discussion about federalism. I wonder if Jefferson and Madison thought that we should pick the result we want based upon who we perceive to be the good guys and the bad guys, then get there any way we can?

The other perceived offense on my part had to do with the anti-tobacco bill that came before the Senate in 1998. Senator Lauch Faircloth proposed an amendment that placed a cap on attorneys’ fees — fees which had been negotiated between the states and their lawyers. I opposed any fees at all because I opposed the bill. But when the amendment on attorneys’ fee came up I opposed it too. Get this: Under the amendment the states would have been required to send the attorneys’ bills to the House and Senate Judiciary for approval. As I said on the floor on May 19, 1998, “I did not come to the Senate to review billing records from lawyers in private lawsuits.”

For the record, I oppose the federal regulation of any fees negotiated by two competent parties at the state and local level. This goes for lawyers, doctors, butchers, bakers, or the occasional candlestick maker. Even if excessive fees offend congressional sensibilities, there are other remedies that make far more sense than the federal one. In the tobacco case, for example, those who negotiated the attorney’s fees had to run for reelection. Also, local courts strike down fees they find excessive. Apparently the absurdity of Patrick Leahy and me (or our staffs) rummaging through records to determine exactly what some second-year lawyer in a Hoboken law firm did to earn their hourly rates is lost on some of my conservative friends. All that matters is that I “sided with the trial lawyers.” This is always supposed to end the debate.

This discussion is not an idle exercise. Republicans have struggled in recent years, because they have strayed from basic principles. Federalism is one of those principles. It is something we all give lip service to and then proceed to ignore when it serves our purposes. During my eight years in the Senate, I tried to adhere to this principle. For me it was a lodestar. Not only was it what our Founding Fathers created — a federal government with limited, enumerated powers with respect for other levels of government, it also provided a basis for a proper analysis of most issues: “Is this something government should be doing? If so, at what level of government?”

As I understood it, states were supposed to be laboratories that would compete with each other, conducting civic experiments according to the wishes of their citizens. The model for federal welfare reform was the result of that process. States also allow for of diverse viewpoints that exist across the country. There is no reason that Tennesseans and New Yorkers should have to agree on everything (and they don’t).

Those who are in charge of applying the conservative litmus test should wonder why some of their brethren continue to try to federalize more things — especially at a time of embarrassing federal mismanagement and a growing federal bureaucracy. I am afraid that such a test is often based more upon who is favored between two self-serving litigants than upon legal and constitutional principles. Isn’t that what we make all the Supreme Court nominees promise not to do?

Adhering to the principles of federalism is not easy. As one who was on the short end of a couple of 99-1 votes, I can personally attest to it. Federalism sometimes restrains you from doing things you want to do. You have to leave the job to someone else — who may even choose not to do it at all. However, if conservatives abandon this valued principle that limits the federal government, or if we selectively use it as a tool with which to reward our friends and strike our enemies, then we will be doing a disservice to our country as well as the cause of conservatism.

 – Fred Thompson is a former U.S. senator from Tennessee. He plays D.A. Arthur Branch on NBCs Law and Order.

Editor’s note: Ramesh Ponnuru responds to Senator Thompson here.

Members of the National Review editorial and operational teams are included under the umbrella “NR Staff.”

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