Rats in the Laboratory of Democracy

State legislatures are gaining power, but not for the people.

Chris Lehmann

On July 1 in Austin, supporters of women’s reproductive rights rally at the Texas Capitol. (Erich Schlegel/Getty Images)

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The middle months of 2013 were a far cry from the Summer of Love. The protections of some of our most elemental civil rights seemed to spool steadily backward. The Supreme Court foolishly voted in June to overturn Section 4 of the 1965 Voting Rights Act, reckoning on little more than the smug conjecture that the culture of voter intimidation in the Jim Crow South had surely by now been rendered a dead letter. Texas lawmakers endorsed the most draconian restrictions of abortion rights on any state lawbooks, overturning a heroic old-school filibuster of the measure by state Sen. Wendy Davis in order to ban abortions past the 20-week mark of pregnancy, and to enact a bogus set of requirements clearly aimed at driving abortion clinics out of business. By the time a Florida jury had acquitted Trayvon Martin’s killer, George Zimmerman, on charges of murder and manslaughter, it seemed that the mystic reveries of post-racial America” that many commentators entertained after the 2008 election of Barack Obama had dissolved into so much pious eyewash; American racial justice, like American reproductive and voting rights, was evidently mired somewhere in the 1940s, if not the 1840s.

In back of most of this glum social regression was a little-noted big idea: the devolution of power away from Washington to the states.

In back of most of this glum social regression was a little-noted big idea: the devolution of power away from Washington to the states. On paper, advocates of decentralized government might find much to endorse in this project, which made its modern debut in the Nixon years as the new federalism.” Aren’t states meant to be, in former Supreme Court Justice Louis Brandeis’ famous formulation, the laboratories of democracy”? Don’t they offer a more level playing field for local interests and policy entrepreneurs than the forbidding, graft-garlanded corridors of power in Washington?

Such, at any rate, were the gauzy rationales proffered for the New Federalism, which gained real momentum under the deregulating stewardship of Ronald Reagan and hasn’t let up since. Unfortunately, though, the shift of power and resources over to the states hasn’t produced any upticks in democratic policy innovation — quite the contrary. Under the direction of conservative activists, most of the nation’s state legislatures have become clearinghouses for raw reactionary lawmaking that won’t fly even in the unprincipled, well-lubricated lobbies of Capitol Hill.

Just consider the now notorious Stand Your Ground” law that prevented George Zimmerman’s prosecution from becoming anything like an equitable legal proceeding Under the tutelage of the National Rifle Association and the American Legislative Exchange Council — the bland-sounding entity that produces readymade templates for right-wing bills for state legislatures to rubber stamp — 31 states now have some version of Stand Your Ground on the books. The law essentially rescinds a key threshold for credible claims of self-defense in violent confrontations: the expectation that a person who perceives an imminent physical threat retreat from the site of the conflict. (Even under this trigger-happy standard, it’s not at all clear that Zimmerman should have qualified, since a 911 dispatcher advised Zimmerman to stop stalking Martin through Zimmerman’s Sanford, Fla., neighborhod. But then again, the logic of Stand Your Ground always privileges the claims of the shooter over against those of the victim — particularly in a case like Martin’s, where the victim is dead.) Under this shooter-friendly statute, Zimmerman’s defense team could and did portray every action taken by their client, including the use of deadly force, as justified self-defense — and since it is official Florida state law, the Zimmerman jury had precious little room to maneuver around it. Not surprisingly, enforcement of Stand Your Ground laws has been dramatically skewed along racial lines: John Roman of the Urban Institute’s Justice Policy Center broke down a database of more than 40,000 homicides between 2005 and 2009; in those cases where one-on-one shootings fell under the rubric of self-defense or justifiable homicide, Roman found that in Stand Your Ground states, white assailants were 354 percent more likely to be exonerated for killing a black victim states than in cases where white shooters had killed white victims. (In non-Stand Your Ground states, that ratio was 250 percent.)

Put another way: Stand Your Ground drastically diminished George Zimmerman’s chances of conviction well before a jury ever got to hear the facts of the case; it was, indeed, the initial two-month-long refusal of Sanford law enforcement to charge Zimmerman with a crime under Stand Your Ground that brought the Martin case to public attention in the first place.

Much the same grim dynamic of rapidly spun policy innovations foisted on often unsuspecting state constituencies holds in virtually every other major piece of ALEC-sponsored legislation that has recently sailed through Republican-run state legislatures, from Arizona’s notoriously hardline (and — for now — unconstitutional) 2011 law targeting undocumented immigrants to Wisconsin’s frontal assault on public employee unions to Pennsylvania’s recently implemented voter-ID law. All of these initiatives would fall apart under legal scrutiny the instant some hapless congressional lawmaker might have brought them up for debate on Capitol Hill. But in our cash-strapped, right-leaning state legislatures, fewer and fewer lawmakers are disposed to question any provision in the legislative wish list of the right-wing backlash. Instead, they can call upon ALEC to fly in made-to-order bills that, by virtue of the consulting group’s well known imprimatur, also boast a proven fundraising appeal for the right-wing donor class.

And once the bills are in play, their sponsors can solicit supporting testimony and research from any of the 59 right-wing think tanks in the ALEC-affiliated State Policy Network (SPN). This alliance — which boasts such well-known members as the climate-change-denying Heartland Institute and state-based franchises of David Koch’s Americans for Prosperity policy shop — was founded in 1992 with the aim of herding American state legislatures into the policy vanguard of the right-wing insurgency. South Carolina billionaire Thomas Roe spelled out the group’s marching orders to a fellow member of the Heritage Foundation board in the mid 1980s: You capture the Soviet Union — I’m going to capture the states.”

Now, both conservative prophecies have come to pass. With members organizations strategically nestled in each of the 50 state capitals, particularly active SPN members, such as Arizona’s Goldwater Institute, furnish model bills” to consulting state legislatures that seek to bypass federal authority. Three such measures are designed to block enforcement of the 2011 Affordable Care Act at the state level, while another seeks to knit together state governments in a counter-federal compact” that would (in theory) render any federal gun control law, should such an extremely hypothetical piece of legislation emerge from the 113th Congress, functionally illegal.

In trying to filibuster the Texas abortion bill — and briefly succeeding — Wendy Davis stressed that her resistance grew out of a popular and organic” resentment of the bill’s provisions, as they all too gradually and belatedly became known to the Texas public: It wasn’t anything but democracy,” she told Jason Cherkis of the Huffington Post.

Exactly. Which is why ALEC, for all of its loudly advertised distrust of the concentration of power in Washington, says nothing about democracy in its mission statement-cum-motto, which simply reads, Limited government, free markets, federalism.” In other words: Louis Brandeis, RIP. 

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Chris Lehmann, is editor-in-chief at The Baffler and a former managing editor of In These Times. He is the author of The Money Cult: Capitalism, Christianity, and the Unmaking of the American Dream (Melville House, 2016).
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