Homeland security, federalism, and bicameralism

In October, 2005, I commented on the intercameral differences within the Republican Congress on the question of federal grants for “homeland security.” The dispute–with the Senate favoring most of the money being divided equally among the states and the House favoring a high percentage of the disbursements being based on insured risk–is the stuff of classic bicameral policy disagreement. Insured risk tends to be roughly correlated with population, and so it is hardly a surprise that the House would prefer such a determination of where most of the money should go. The Senate, on the other hand, with its equal representation of even the smallest state, would be predicted to find the “risk” from terrorism to be about the same in Wyoming as it is in New York, and indeed that is the logic–the political logic–of its formula.

Now, fast forward to 2007. We had a change in party control, from both houses being Republican to both being Democratic. And at the moment, the chambers are once again bargaining over the formula for the distribution of homeland security grants. The proposals by each chamber again reveal the institutional biases of each chamber. But when compared to the 2005 intercameral bargaining, the 2007 proposals show even more starkly the difference between the parties and their constituencies, on this issue.

Here I compare the House and Senate proposals at each of these moments of bargaining:

    2005 bills (Republican majorities)

    House: 25% of funds distributed equally among states–but state must show need; most of rest allocated based on risk

    Senate: 75% of funds distributed equally among states; 25% allocated according to risk

    2007 bills (Democratic majorities)

    House: 12.5% of funds distributed equally among states; most of rest allocated based on risk

    Senate: 22.5% of funds distributed equally among states; most of rest according to risk

Wow. Good stuff!

Of course, one critical factor here is the relative sizes of the states each party draws its main support base from. That is, the parties’ positions (holding constant the chamber) are partly shaped by the same factor that separates the chambers (holding constant the parties). Consider the following breakdown of the populations of the states represented in each of these two Senates. The first column is the number of states (with half a state in each party row whenever the state delegation is split), and then the cumulative population of those states (or half states).

    Before 2006 election
    54 Reps 27.5 138,079,342
    46 Dems 22.5 142,824,157

    After 2006 election
    49 Reps 24.5 118,950,125
    51 Dems 25.5 161,953,374

Note that the Republican states constituted the minority of the population even when the Republicans held the (spurious) partisan majority of the Senate. (This a theme I have covered before, in a somewhat more refined analysis with electoral data and cool graphs!)

President Bush has threatened to veto this bill over several other provisions, especially that which would extend collective bargaining rights to baggage screeners and other employees who were barred such rights when DHS was established.

We may see the first successful override vote in the House during the W years. The bill passed 299-128. However, the vote was 60-38 in the Senate. These results means a lot of Republicans in each house went with the majority, even if the non-democratic chamber will be able to sustain the minority veto in this case. What a difference it makes which party is setting the congressional agenda!


My main source on the differences in the bills in 2007 was an article by Chris Strohm for Congress Daily. Sources on the 2005 bills are discussed at the previous planting (first link above).

In calculating state populations by party delegation, independents are counted as if members of the party with which they caucus (here, all Democrat: Jeffords, Sanders, Lieberman); population numbers are based on 2000 census.

On the specific issue of union rights for baggage screeners, I highly recommend the thread sparked by Matthew Yglesias in early March. The discussion in the comments contains pretty much the whole gamut of hypotheses about policy-making!

US Presidential elections: National Popular Vote

Today marked the launch of a plan to promote a citizen- and state-driven approach to changing the archaic and anti-democratic manner in which the United States currently elects its president: National Popular Vote. The idea was launched via C-Span this morning, and the program will be repeated. Check the C-Span schedule for times.

I will have much more to say about this in the near future. For now, I am just flagging the existence of the campaign, and a book released today (most of which I have already read eagerly, courtesy of an advance copy). The short version of the story is that the proposal is to avoid the (also archaic and anti-democratic, as well as cumbersome) process of amending the constitution, and have states enter into interstate compacts. Once a sufficiently high number of states has entered into such a compact, the states in question would change, under their Article II authority, the means by which they appoint electors such that the electors would go to the winner of the national popular vote (even if that ticket were not the winner of the popular vote within any given state). Voila, you have de facto direct vote (by plurality rule).

That last part–plurality rule–is an Achilles heal of the proposal, in the event of a three-way race. But there is no way I can see to mandate a runoff, whether in two rounds or “instant.” Congress would have to act to allow a second round of voting. (I do not believe doing so would require a constitutional amendment.) Most certainly, the instant runoff (alternative vote) favored by many American political reformers could not be adopted through the NPV plan. No allocation method, aside from the current state-by-state method, can be based on votes cast in any subset of the states. Thus I don’t see a way to implement this other than with plurality; we can determine the national popular-vote winner, just as we now do, and states in the compact–once they amount to states with 270 electoral votes–can each award all their electors to the candidate with the national-vote plurality. Efforts to use something other than plurality would have to await all states joining a compact that also covered the voting rules within the states, or else a constitutional amendment. One step at a time…

Anyway, more to come, for sure. This is an exciting, innovative proposal.

Security funding: Pork vs. programmatic policy?

Does it make sense that Wyoming, rated as “low risk” for terrorist attack, should get almost twice the funding for preparadness programs, on a per capita basis, as New York? The independent commission that investigated the 9/11 attacks recommended more than a year ago that all homeland-security money be allocated based on objective criteria–the risk of attack.

This issue is being debated in Congress now–in a House-Senate conference committee, and it is an excellent example of the different interests of the two chambers of the US Congress.

This is a fascinating case, because both chambers are controlled by the same party. Yet the legislative preferences on this matter break down in a completely predictable way, based on the constituencies of the chambers.

The Senate passed a bill that would share about 75% of all homeland security funds equally between the 50 states, with the other 25% allocated according to a state’s actual assessed risk of terrorism.

The House, on the other hand, passed in July an amendment to the Patriot Act that would do almost the exact opposite. Under the House plan, 25% would be allocated equally between the states, and even to get that share, a state would have to prove why the money was needed. Most of the funds would be based on assessment of risk.

(The assessment of risk would be based on calculating potential insured losses.)

Representative Nita Lowrey (Democrat, New York), the author of the amendment to the bill that the House passed, says:

The current formula is distributed as pork barrel, the same amount to everybody, no matter what, and it doesn’t make sense. New Yorkers are not very pleased about being No. 1, but if we are No. 1 in the risk/threat/vulnerability category, we clearly should get the resources so that we can be prepared.

Senator Craig Thomas (Republican, Wyoming) counters that his state has a lot of energy production “that involves a substantial Homeland Security risk.”

Lowrey notes that is a valid argument, and points out that the amended House bill would allow Wyoming to make that case and receive the funds if they are indeed merited.

Good case in programmatic vs. particularistic policy-making, and in House vs. Senate constituencies!

(The above information comes from an article by Alexandra Marks in the Christian Science Monitor on October 24.)

Federalism and Constitution Day once more

OK, I relent. I was not going to say any more about this issue.

But Steven posted the other day a further clarification of a point he and I have been bouncing forth and back and forth again, with Scott also getting into the mix (and all of us making appearance in the comments to Scott’s post).

The main question, as I see it, is to what extent does Congress violate the principles of federalism when it imposes its policy will on the states through earmarks, mandates, and the like, outside its enumerated powers? My answer is, not at all, because the very principle of federalism is that the central and state governments each have their independent sovereignty and they are free to enter into mutually beneficial relationships or not, as each side sees fit. If states don’t want the mandate, they can refuse the cash and approach the policy their own way, with their own funds.

Steven, in his “fourth time” post, agrees that there is no real “federalism” issue raised when Congress sees a problem that states are more capable of administering and offers money in exchange for states addressing the problem under terms set down by Congress. He uses food stamps as an example (see the fourth paragraph of the just-linked post), and it is a good example. (As an aside, I am quite sure that he is right that this is an aspect of federalism that is not well taught in our schools, including, I would note, our universities. Outside of my classes, of course.)

So, what is Steven’s objection?

…what I find irksome is when the policy relationship entered into between the state and federal governments can then be used by the feds to adjust its demands on the states. Byrd’s rider in the appropriation bill is just that sort of ex post alteration to the contract…

But wait a second! This is the problem, I think: seeing policy bargains between sovereign institutions as contracts. That is the wrong analogy. It is an ongoing series of transactions, not a relationship governed by any single transaction as formalized as the word contract implies. A contract, properly understood, requires a neutral third-party enforcer. (Regular contracts among citizens and corporations, for example, being enforced under the government’s contract laws.)

Transactions between governments in a federation, on the other hand, are exchanges between independent authorities with only weak third-party enforcement. The judiciary can be involved if there is a question of constitutional jurisdiction, but it is not as if every individual transaction between federal and state governments is subject to judicial review. Besides, the judiciary in question is part of the federal government, even if the purpose of Senate confirmation procedures is to involve an institution that, at least in theory, represents states. (Increasingly it represents the party with the manufactured majority of seats, rather than the states, but that is another thread.)

I find it interesting—and it is a theme I am developing with coauthors on two projects, one on Mexican presidentialism and federalism, and the other on the US in comparative perspective—that the founders of the US Constitution were very explicit, in the Federalist Papers, about the transactional relationship they were setting up between the executive and the legislature: Institutions with separate agency that would have to work together to accomplish their respective goals. However, they did not elaborate a similar transactional relationship between national and state governments. They appeared to think of the levels as having a more separate existence.

Yet the very logic of the separate yet overlapping institutions of federalism mandate a theoretically almost identical transactional relationship as that between the separate but overlapping branches of any one level. If the founders did not foresee it this way, it is only because they imagined greater separation of tasks between the levels of government than between the branches of the federal government.

Yet, in their wisdom, the founders did not bar Congress from carrying out other functions beyond those explicitly enumerated. This allowed the functions of the federal government to grow without overtaking the sovereignty of the states. Each level still has to bargain with the other. And, because congressional power originates in part from the states (at least in theory), congress does not make laws in some sort of hypothetical vacuum in which the same interests arising out of the states are somehow not represented at the federal level.

Constitution day and federalism

Constitution Day is really tomorrow, and I already said most of what I have to say about it on Tuesday here at F&V, as well as on KPBS radio on Wednesday.

Nonetheless, while I mentioned in both settings the irony of the way in which Constitution Day was established—by slipping a mandate on schools into a large appropriations bill—I did not entertain the further question of whether the very act of making this mandate was itself contradictory to the Constitution. This raises questions about what is federalism.

The Volokh Conspiracy today posts an announcement of a talk at George Mason University:

Join Foundation Professor of Law Ronald Rotunda and Patrick Henry Professor of Law Nelson Lund for as they examine whether it is constitutional for Congress to use its spending power to reach down into the curriculum and culture of every school in the country and dictate what shall be taught, celebrated, or memorialized.

(I have to say that I have long been intrigued by the fact that a Professor Rotunda studies laws passed at the United States Capitol.)

Steven Taylor similarly notes how Congressional mandates attached to federal money provided to states “fundamentally alters the overall power of Congress vis-à-vis the states.” Thus with the system working this way…

the pure federalism of the Constitution itself, as delineated by Article I, Section 8 and the Tenth Amendment is not fully in operation.

I’ve never seen this as a problem. “Pure federalism” is the existence of separate sovereign levels of authority, an ingenious idea that the founding fathers committed to parchment on this day (well, more or less) 218 years ago. But nowhere does this federal constitution require that Congress give money to the states without strings, or that it give money to the states at all.

As a payer of federal taxes, I don’t want my tax money sent to states without strings (and here I am talking about far more serious matters of national policy than Constitution Day events). I don’t want to be Argentina or any of several other wholly dysfunctional federations in which federally collected taxes are transferred to state or provincial governments that have no acountability for the way they use the money, and no incentive to raise their own revenue to suppor their own spending habits.

If the states don’t like the strings, they have the sovereign right, under the federal form of government, to refuse the money and either forego the services it would pay for, or raise their own taxes to provide the services as they see fit.

As Steven put it, regarding the increased fiscal powers of the central government over time:

we are doing all of this en masse because we might get our federal money taken away.

Exactly. States can make policy on their own and raise their own revenues for it, or they can take federal money. If they choose the latter, Congress has every right to impose mandates on how they use it, in support of national policy, as conceived by national elected officials, accountable to their own constituencies (which happen to be located back within the various states). That is the essence—and purity—of federalism.