Communicating the Value of State Advocacy

National Journal Presentation Credits

Producer: David StaufferDirector: Afzal Bari

Published: April 16, 2015

Interest Groups Ordinarily Lobby the Federal Government to Ensure Maximum Political Impact

Traditional Reasons for Preferring Federal Advocacy to State Advocacy

Sources: National Journal Research, 2015. 2

Interest groups prefer…

Spending money to

affect all 50 states at

once, rather than just 1

$$$ $$$

Having a unified set of laws to deal with, rather

than a disjointed patchwork

State Advocacy Can Sometimes Provide Smoother Paths For Advancing Difficult Issues

Federal Roadblocks and State Solutions for Advocacy

3

Potential issues with federal advocacy…

…often have favorable state advocacy angles

Unfriendly Party:The federal government is controlled by a political party with an ideology opposed to an interest group’s goals

Some states are likely to be more ideologically aligned with a given issue group than the federal government

Gridlock:The federal government is gridlocked and cannot make progress on an issue

Some state governments may have more political will to move on an issue than the federal government

Maverick Position:Politicians are unlikely to support an interest group’s goal if it is against clear political norms or very far outside the mainstream political discussion

Many states can implement law via ballot initiative; voters can directly change policy if politicians are unwilling to act

Delegated Power:The federal government has explicitly delegated policy authority on a given issue to the states

State governments have leeway to legislate where policy authority has been delegated

Sources: National Journal Research, 2015.

Federal Advocacy Efforts Depend on Who Holds Power

Stances of Legislative and Executive Branch Towards Issue Groups and Resultant Lobbying Environment

4

Supportive White House

Supportive Congress

Opposed White House

Supportive Congress

Supportive White House

Opposed Congress

Opposed White House

Opposed Congress

• Maximum likelihood for federal policy success

• Strong and vocal minorities in Congress (particularly in the Senate) can still water down or block policies from moving forward

• Possibility for moderate federal policy gains and compromises to avoid vetoes

• Can push back against executive orders or federal regulations

• If very strong consensus exists in Congress, White House can be overcome

• Congressional leaders will prevent harmful bills from advancing

• Seeking state support may be effective in advancing policy

• Executive orders and regulations may be able to advance policy goals, though they are constrained by existing law and are reversible

• Vetoes can prevent particularly harmful bills from becoming law

• Seeking state support may be more effective in advancing policy

• Very unlikely to affirmatively advance a policy agenda

• Vocal minorities can block hostile legislation from moving forward

• Seeking state support will be necessary to advance policy

Sources: National Journal Research, 2015; Jessica Bulman-Pozen, “Partisan Federalism,” Harvard Law Review, February 1, 2014.

Some States are More Ideologically Favorable to Certain Interest Groups Than the Federal

GovernmentExamples of State Laws in Opposition to Federal Policy

5

States funding embryonic stem cell research, 2004-2008

State statutes cutting funding to Planned Parenthood, passed 2011-

2012

Analysis•Many states are more ideologically oriented to a given policy than the federal government, and interest groups can use these favorable environments to affirmatively advance a policy agenda•While social issues have historically offered clear examples of ideological differences between state and federal governments, this tactic has been applied to a wide array of issues: environmental regulations, gun access regulations and tax structures among them

• Federal opposition to embryonic stem cell research funding during the Bush administration pushed advocates of research to the states

• Eight states with more socially liberal populations in favor of funding passed statutes funding embryonic stem cell research at the state level

• Anti-abortion members in the House of Representatives attempted to eliminate federal funding for Planned Parenthood after being sworn in in 2011

• Advocates for eliminating funding for the organization were able to turn to socially conservative states, lobbying for the elimination of state funding for the organization

• Six states cut or eliminated funding for Planned Parenthood

Sources: National Journal Research, 2015; Jessica Bulman-Pozen, “Partisan Federalism,” Harvard Law Review, February 1, 2014.c

Successful State Policy Can Provide Momentum for Federal Lobbying Efforts

How Successful State Policies Can Benefit Federal Advocacy

6

Provide Evidence For Success

Boost Public Opinion

Large State Incorporation

• Implementing policies can provide data and anecdotes to help support a case for federal implementation

• Policies that are shown to be successful at a state level can increase public support for a proposal

• This is especially true if opposition to a policy relies on perceived bad consequences: if those don’t arrive, the public may be more supportive

• Very large states can often dictate policy at the national level through economies of scale

• Texas’s schoolbook standards, for instance, often dictate publisher decisions nationwide because the state has a large population of students

Sources: National Journal Research, 2015; Jessica Bulman-Pozen, “Partisan Federalism,” Harvard Law Review, February 1, 2014; Rick Jervis, “Controversial Texas textbooks headed to classrooms,” USA Today, November 17, 2014.

States May Move On Issues When Federal Momentum Has Stalled

Examples of Federal Gridlock and State Lobbying Successes

7

• The federal government may be split on an issue and unable to move in any direction, due to ideological differences or general lack of federal urgency

• Immigration reform efforts, for instance, have become gridlocked at the federal level, with some members wanting a path to citizenship and more rights for undocumented immigrants, with others wanting additional border security and deportations

When the federal government can’t act…

• States on the southern border with a strong interest in immigration felt a great need to act in the absence of federal action

• States may move in different directions in addressing the issue

— New Mexico in 2005 passed laws pushing police officers in their state not to deport individuals arrested for minor crimes

— Arizona in 2010, on the contrary, passed laws to increase police officers’ responsibilities and discretion to initiate immigration-related arrests and deportations

…states may be more willing or able to move

Sources: National Journal Research, 2015; Jessica Bulman-Pozen, “Partisan Federalism,” Harvard Law Review, February 1, 2014.

NM AZ

Direct Democracy Can Allow Interest Groups to Circumvent State Policymakers

Examples of Successful State-Level Direct Democracy Efforts

Sources: National Journal Research, 2015; Jennifer Steinhauer, “Californians Compete for a Shot at Redistricting,” The New York Times, March 3, 2010; Colleen Curry, “Push to Legalize Pot at ‘Tipping Point’, Experts Say,” ABC News, Nov. 30, 2012.

8

• Representatives that fear electoral consequences may avoid supporting politically taboo issues

• Colorado’s marijuana legalization effort in 2012 provides a good example; policymakers are reticent to seem soft on drug crime

• Mobilizing public support was easier than forcing legislators to publicly defend a controversial idea

• Momentum from Colorado has pushed other states and federal lawmakers to move this once off-limits policy position into the public debate

• Some reforms are structurally unlikely to occur from representatives themselves, due to the nature of their interests as lawmakers

• California’s 2008 and 2010 referenda removing the power of its state legislature to draw state and federal districts was very unlikely to come from the legislature itself, as it would reduce the legislature’s power

Tackle Politically Taboo Issues

Circumvent Legislative Self-Interest

26 States Provide Residents Some Ability to Pass and/or Repeal Laws Directly

Map of States With Access to Direct Democracy

Sources: National Journal Research, 2015; Citizens in Charge, “Initiative Rights by State,” 2015. 9

Able to repeal statutesvia direct vote

Able to pass and repeal statutes via direct vote

No voter-driven direct democracy

Able to pass constitutional amendments via direct vote

Able to pass and repeal statutes and pass constitutional amendments via direct vote

Analysis•26 states provide voters with the ability to pass or repeal statutes directly; two states only allow for the ability to repeal statutes, three only allow for constitutional amendments (which often have higher bars to be put on the ballot and/or passed) and six only allow for the passage and repeal of laws and do not provide the ability to pass constitutional amendments•Other states may allow for initiatives to be put on the ballot by legislatures, but do not allow for voters to propose laws directly

States are Often Delegated Policymaking Authority Through Federal Law

Examples of Federal Delegation of Policy to States

Sources: National Journal Research, 2015; David Kopel, “Online symposium: The Bar Review version of NFIB v. Sebelius,” SCOTUSblog, July 6, 2012; Kenneth R. Thomas and Larry M. Eig, “The Constitution of the United States of America, Analysis and Interpretation: Amendment 10- Reserved Powers,” Congressional Research Service, July 1, 2014

10

• No Child Left Behind and Race to the Top gave states the ability to make decisions about educational assessments and reforms by attaching federal funding to educational outcomes

• After the Supreme Court ruled in NFIB v. Sebelius that the federal government couldn’t coerce states into accepting additional Medicaid funding, the government gave states the ability to experiment with different funding mechanisms

• Some states chose to use the funding to expand traditional Medicaid, while others chose to expand Medicaid through grant programs and private partnerships

Education Medicaid Expansion

Analysis•States are frequently given latitude to make policy through federal grant programs if the federal government cannot explicitly make policy in a given area•The federal government’s delegation necessitates lobbying at the state level to change policy outcomes