The Right Coast

March 15, 2005
"The Threat of Federalism": Would De-Centralization Dampen the Power of National Special Interest Groups (especially the wackiest ones)?
By Gail Heriot

The National Organization for Women's Legal Defense and Education Fund has a website with the sub-caption "The Threat of Federalism." It begins this way:

"The NOW Legal Defense and Education Fund has recently established a Project on Federalism. The Federalist Society, an organization of extremely conservative lawyers, which expounds a philosophy they call "federalism," has gained tremendous influence in the Bush administration and in the federal courts. This is a little understood but dangerous movement."

The essay goes on to argue in earnest tones that the Federal Government should be regarded as a "progressive agent for change," that those of us born in the modern era "have lived with the assumption that the federal government has the authority to tackle national problems," but that the Supreme Court has in recent years threatened the nation's well-being with a strange doctrine that they call federalism, which holds that the federal government does not always have that authority. In other words, this federalism stuff is bad, bad, bad.

I don't much mind if the folks at NOW aren't sold on the idea of federalism. I suspect a lot of people don't really see the point. But why is NOW's view expressed with such fervor? And why does NOW think should women in particular should care about how power is allocated between the state and federal levels?

I suppose one way to explain it is simply by remembering that the primary interest group behind the "Violence Against Women Act" was NOW and that Act was the subject of the Supreme Court's decision in United States v. Morrison. In other words, NOW's ox was the one that was gored. But I would like to suggest another explanation: Taking federalism seriously may or may not harm women, but it does threaten a group that is near and dear to NOW's heart--high-profile inside-the-beltway interest groups. And naturally, NOW's staff members would consider that bad.

Let's go back to 1787. The conventional wisdom when the Constitution was drafted was that democracies (including representational democracies or republics) had to be small to function effectively. But in Federalist No. 10, Madison turned this view on its head by arguing that, in order to fight the evils of factionalism, bigger is actually better.

By "faction," Madison meant what we might call "special interest." He mentioned propertyholders, those without property, creditors, debtors, landed interests, manufacturing interests, mercantile interests, and monied interests as examples, adding that there are many other "lesser interests." Madison rightly understood that factions sometimes seek to the sacrifice the good of the community as a whole in order to obtain some private advantage and must somehow be thwarted if the good of the community is to prevail.

So long as a faction is strictly a minority, it is harmless enough, since in a democracy, it won't get its way. The problem comes when the faction is itself a majority or when it forms coalitions with other factions that together are able to secure inappropriate advantages. Madison thought that this is easier to do at the local or state level than at the national level. At the national level, the number of petty factions will be so large that they will tend to cancel each other out. He wrote:

"The smaller the society, the fewer probably will be the distinct parties and interests composing it; the fewer the distinct parties and interests, ... the more easily will they concert and execute their plans of oppression. Extend the sphere, and you take in a greater variety of parties and
interests; you make it less probable that a majority of the whole will have a common motive to invade the rights of other citizens; or if such a common motive exists, it will be more difficult for all who feel it to discover their own strength, and to act in unison with each other."

Well, yes ... In the 20th century, for example, it was said that tobacco growers had a lot more clout in North Carolina than was healthy, because they were well-organized and concentrated there. Ditto for the auto industry and the auto workers unions in Michigan. But at the national level, these interests were a few voices among many. As the country has become more geographically homogeneous and the economies of the various states more diversified, Madison's point became somewhat less crucial. But it continues to have validity.

Still I wonder if the opposite point can't be made too. Sure, Madison is probably right that insofar as special interest groups are geographically localized, their ability to subvert the public good for their own special advantage is reduced by having a large federation. But not all special interest groups are geographically concentrated. Some are so geographically diffuse that they might not exist at all as organized special interest groups (or they might not be as effective) if the United States were broken into 50 separate countries. The power of these non-geographical special interest groups may be magnified the greater the size of the federation as they can take advantage of organizational economies of scale.

Take a look at the District of Columbia telephone book. It's a real fright. All manner of special interest can be found there from the African American Women Business Owners to the National Association of Professional Pet Sitters. No, I'm not saying that every one of them is trying to secure unfair advantage for itself. Some are busy trying to defend themselves against other special interest groups' efforts to secure unfair advantage over them. My point is simply that each one has a office and a staff, and the staff members spend their time trying to influence legislation and administrative rulemaking in their group's favor, not in favor of the public good. And if they had to divide their time between Albany, Annapolis, Atlanta, Augusta, Austin, etc., most of them couldn't do it. They'd be stretched too thinly.

Some could, of course. Mega-organizations, like the AARP, the Sierra Club, NOW, the NEA, and several others have enough members to lobby in all fifty states. But I suspect that if these organizations had to do so, they would need to rely much more heavily on volunteers and much less heavily on paid staff members. And that just might help reduce the level of extremism among their leaders--extremism born of being too long inside the beltway and spending 100% of their time thinking as members of a particular interest group.

NOW purports to represent women. But when NOW President Kim Gandy says things like, "There is no question ... that a Bush presidency would be a disaster for women," and publishes a web site accusing "Bush and his accomplices" of "lies" and "misdeeds," it's hard to say she's representing women. Lots of women--a majority of married women--voted for Bush. Similarly, the AARP represents retirees. But that group is also not as one-dimensional as AARP policies make it appear to be. Ditto for lots of large membership organizations that lobby the federal government.

Is it possible these groups are the way they are in part because of the centralization of power in the hands of the federal government? I think so. And at least it's interesting to give it some thought...