Magazine | February 23, 2015, Issue

Reviving Federalism

James L. Buckley
Saving Congress from Itself: Emancipating the States and Empowering Their People, by James L. Buckley (Encounter, 120 pp., $19.99)

My first vote remains my best. It was for James L. Buckley’s reelection as a United States senator from New York. In six years in office, he had shown himself fearlessly principled, whether in calling for Nixon’s resignation in the Watergate scandal before any other conservative in Congress or in opposing a taxpayer bailout for New York City, where about half his constituents lived. He also possessed the model demeanor for a statesman: Lucid, logical, and dispassionate, he focused on issues, not personalities. He brought this approach to bear not just in the Senate, but, later, on the federal bench, as a judge on the U.S. Court of Appeals for the D.C. Circuit.

His new book exemplifies these qualities. He presents a meticulous argument for returning our Constitution to its first principles by making the federal government once again responsible only for problems national in scope. In particular, Buckley wants to end grant-in-aid programs through which the federal government distributes money to states and localities for state and local projects.

Buckley shows that such programs have captured an ever larger portion of the federal budget, ballooning from $24 billion in 1974 to $640 billion in 2015. But their greatest cost is not the direct one: What’s worse is that they encourage a wasteful lobbying race for more such programs, as a myriad of local groups want a bigger share of the pie. These programs, too, will come with federal strings attached — and therefore reduce the autonomy of states, which cannot run the programs as they wish. This weakens political accountability, because most voters, unversed in the intricacies of these programs, do not know whom to blame for their often expensive mandates.

Worst of all, these programs undermine the genius of our federal system. The Constitution proceeds on the paradox that two governments protect liberty and are jointly more effective than one. Under its enumerated powers, the federal government’s authority is restricted to a relatively few areas of national importance. While the states have almost unlimited powers, their actual impositions are limited by competition: Citizens can leave jurisdictions whose services do not give them value for money. And the results of different current state policies provide lessons for future policymaking.

But as Buckley ably demonstrates, two governments can become worse than one, when this constitutional structure dissolves. States lose much of their autonomy to compete because they must comply with uniform regulations to grab the federal dollar. Members of Congress cease to focus on national issues, because they can dangle local lucre that’s more likely to capture votes. Buckley is quite amusing in describing a newly elected senator who assured a constituent that he would become the new champion of her preferred local bus route. Of course, a senator focused on functions best performed by a local transportation commissioner is less likely to exercise due oversight of the federal bureaucracy in Washington, or to insist that the president seek authorization for military action abroad.

Buckley’s proposal for reform is simple: Congress should abolish all grant-in-aid programs. It is a wholly admirable idea, but not much more politically likely than the hope that members of Congress will vote to cut their own salaries. Members of Congress have enormous political incentives to create these grant-in-aid programs. Bus routes and community centers are easy for constituents to understand, compared with the complexities of our policy toward Syria. Moreover, grant-in-aid programs allow members of Congress to satisfy their local constituencies who are thirstiest for federal dollars while diffusing the cost over the whole nation. Federal grant-in-aid programs are also well entrenched: By far the largest is Medicaid, and it provides money to a wide variety of medical providers who would surely oppose its abolition.

One might hope that Buckley’s proposal would gain traction among state officials, who lose their autonomy to the mandates that generally accompany these programs. But, sadly, many states prefer the easy life to competing with other states on policy ideas. One of the least discussed reasons for the growth of the federal government is that some states would rather have uniformity thrust upon them than risk losing the battle for successful policy innovation.

The division between federal and state government can endure only if maintained at the level of the Constitution, because it is the Constitution that can prevent government officials from using ordinary politics to pursue their own interests at the expense of the citizenry. At the end of his book, Buckley briefly argues that the Supreme Court should resurrect constitutional limits by permitting the federal government to spend only on projects that are truly national. Less radically, the Court could put teeth into its current test for determining whether these grant-in-aid programs coerce state acceptance. For instance, in NFIB v. Sebelius (2012), the Court found coercive the government’s threat to cut off Medicaid funding unless states participated in the Affordable Care Act. This decision paved the way for a majority of states to refuse to participate in Obamacare.

Buckley also offers two “ancillary measures” to make it less likely that members of Congress will vote for grant-in-aid programs and more likely that they will have the time necessary for their actual federal duties. He argues for term limits, to make members focus less on passing out local favors to win reelection. Regrettably, congressional term limits are even less likely to pass than an end to grants-in-aid: It would be equivalent to turkeys’ voting for Thanksgiving.

Buckley also wants to eliminate the limits on campaign donations, so that federal representatives do not have to spend so much time raising campaign funds. It is possible, even likely, that Congress will soon relax these contribution limits, but only because of a push from the Supreme Court. In Citizens United (2010), the Court permitted corporations and, by implication, super PACs to raise unlimited funds and spend them independently on elections. Members of Congress are now in danger of becoming spectators in their own campaigns, unless they raise the limit on contributions to their war chests.

The larger lesson is that members of Congress will change their self-interested behavior only if the Court holds their enactments unconstitutional or otherwise changes their incentives. May the wise counsel of their former judicial colleague prompt the justices to consider such action.

– Mr. McGinnis is a law professor at Northwestern University and the author, with Michael Rappaport, of Originalism and the Good Constitution.

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