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Single Federal Code redux - Part three or how to make states sovereign again

By Bruce Walker
web posted February 3, 2003

After making the conservative case for a single federal code, explaining why I believed that states cannot regain their still existent sovereignty because of a lack of any real power, and explaining how a huge House of Representatives compelled to dwell in flyover country could safeguard how liberties, I now conclude the examination of these issues by presenting some ways in which states could regain the power which is indispensable to the sovereign rights they still possess.

Perhaps the most obvious and least discussed action would be an aggressive use of recall in those states which allow recall. Those states which adopted or reformed their constitutional structure during the Populist Era of a century ago provided the people direct powers absent in prior American governments. One such power was the right of the people to recall a federal legislator before his term expired and to compel him to face the electorate again, losing his seat if he lost the recall election.

It is no secret that federalists and liberals loath the power of recall. Senator Church of Idaho faced recall during the Vietnam War because his positions were so wildly out of synch with the people he purported to represent. Senator Church is largely responsible for the crippling of our intelligence services, which have kept us humane and practical actions, like a CIA inspired coups in Iraq or in Syria to surgically replace monstrous rulers.

Recall could become a very valuable tool for states to reassert their rights if the process for recall was made simpler and easier. What if, for example, the state of South Dakota - which provides for recall of federal legislators - amended its state constitutions so that a senator could be recalled by a simple majority resolution of the state legislature?

Senator Daschle be very sensitive to the positions of the South Dakota Legislature, which would also give that body much more power in policy debates. The same would be true, of course, if Tennessee adopted a similar recall process, which would allow Senator Frist to be recalled by the legislature of that state.

On ideological issues, recall is a two-edged sword. Although most state legislatures are more conservative than the senators and congressmen from those states, there are some situations in which the ideological differences are just the opposite. That, however, is not the point.

Power to determine what policy issues were taken by each state's federal legislators would be much more in the hands of the state legislatures and much less in the hands of federal legislators.
That transfer of power would inevitably, over time, make state governments more robust and the federal government more docile.

State governments could also enact election laws which ended the advantage that established political parties have by requiring that all elections be nonpartisan and that a runoff system, like Louisiana has, be required before a federal legislator is elected.

Party affiliation is so encrusted in our conventional history of American politics that we forget that the Constitution itself says nothing about "Majority Leader" or "Minority Leader" at all. Nebraska has a nonpartisan legislature and it actually works that way. Many city councils are likewise nonpartisan.

How does this improve state power? Well, consider if today every member of Congress was nominally nonpartisan. Committees are organized without the intervention of party leaders. Those juicy leadership posts do not exist. Today, the organization of Congress and partisan control is important to a federal legislator. Tomorrow, if congressional legislators did not have a party, then the sentiments of state government political leaders would be the more important. Again, the focus shifts from Washington to home.

An additional control over House members could be routine adjustments in congressional districts (redistricting every ten years is the minimum, not the maximum) or providing that all congressmen be elected at large in the state. It is not so much how this power is exercised by state legislatures that matters as it is the actual exercise of the power: reminding congressmen that state legislatures have a great deal of say about the structure of their election.

Finally, state legislatures could reassert their constitutional power to control the election of the president. This could be done in a very straightforward way. What if, for example, the Florida State Legislature passed a statute providing that the presidential electors for that state would be chosen by resolution of the two houses of that legislature? Suddenly presidential campaigning in Florida becomes much less important than state legislative campaigning.

The Constitution does not require a state statutory process for choosing presidential electors, but instead formally vests that power in the state legislature. This should mean that the state legislature can choose the electors even if the Governor purports to "veto" this choice. Whatever a state constitution might say, no one has alleged that a governor can "veto" a state legislature's ratification of a constitutional amendment.

This change would modestly benefit President Bush in the 2004 elections. He would "carry" by the state legislatures five states with 58 electoral votes that he lost in the popular vote - Pennsylvania (21), Michigan (17), Wisconsin (10), Delaware (3) and Iowa (7) - and he would "lose"six states with 53 electoral votes that he won in the popular vote - Alabama (9), Mississippi (6), Arkansas (6), Louisiana (9), Oklahoma (7), Tennessee (11) and West Virginia (5).

Eleven out of the fifty states, in other words, elected state legislatures which did not reflect how their presidential votes were cast. But this is deceptive. President Bush lost Iowa and Wisconsin by tiny margins, and Republicans have made big gains in state legislatures in Tennessee and Oklahoma. The rough democracy of electoral college block state voting would be replaced by the rough democracy of state legislative selection of electors. Neither system is perfect democracy.

The result of choosing presidential electors by state legislatures in some states would almost certainly make it more attractive for other states to follow suit. Why? Because if the Florida State Legislature chose that state's presidential electors and the New York State Legislature did not, then a Florida state legislator becomes more important than a New York state legislator. Politicians love power, and once others had taken the heat for switching from a popular election, many would follow suit.

States with divided legislatures, like New York, might well allow some of the electors to be chosen by the lower house and some by the upper house (perhaps some by the governor or by popular vote).

Again, the specific political outcome in any one election is not critical. The increased importance of state legislatures to national politics would be very critical. It does not require much imagination to see how this might be made into a form of genuine campaign reform. What if presidential candidates or their surrogates actually debated before state legislatures to persuade them to support their candidate?

This could provide an excellent forum in which questions of federal-state relations could be pointedly addressed. Regardless of ideology or party, members of state legislatures are going to tilt toward state legislatures (i.e. they themselves) resolving thorny issues, and tilt against Congress or federal courts resolving those issues.

Stated another way: Hawaii and Utah have very difficult cultural norms, but the legislatures of both states have an interest in those state chambers, rather than Congress, resolving social issues. Congress will not be as socially conservative as the good people of Utah would like, but Congress will also not be as socially liberal as the good people of Hawaii would like.

So state legislatures have the potential to use recall authority, to use their ability to determine what and whether to have congressional districts, and to use their power to choose the people who choose the president and by the uses of these powers to regain control over the federal government.

Would this be better than our current system of regal courts presiding over remote federal offices and sending ukases to cardboard box state governments? Oh, yes! Is it likely to happen? My heart says "yes", but my mind says "no."

Bruce Walker is a senior writer with Enter Stage Right. He is also a frequent contributor to The Pragmatist and The Common Conservative.

Other related stories: (open in a new window)

  • Single Federal Code Redux Part Two: Using Congress to safeguard our liberties by Bruce Walker (January 27, 2003)
    Bruce Walker continues his look at the benefits of a more powerful federal government with the role that Congress would play in his scheme
  • Single federal code redux by Bruce Walker (January 20, 2003)
    Bruce Walker responds to W. James Antle III's and Robert S. Sargent Jr.'s thoughts on his idea that a big federal government isn't necessarily a bad thing
  • The conservative case against a single federal code by Robert S. Sargent Jr. (January 13, 2003)
    A recent article by Bruce Walker on increased centralized government continues to draw responses. This week Robert S. Sargent Jr. takes Walker on
  • The conservative case for a decentralized federal republic by W. James Antle III (January 6, 2003)
    Two weeks ago Bruce Walker argued for increased centralization of government in the United States. W. James Antle III says Walker made an eloquent case but he says there is a reason why America's Founding Fathers crafted the system that Americans have today
  • The conservative case for a single federal code by Bruce Walker (December 23, 2002)
    Bruce Walker argues that a big federal government isn't necessarily a bad thing and offers a few benefits if done right. The federal/state/local split Americans have now is outdated, ineffective and a fraud

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