Social Movements, Parties, and Partisan Federalism
In response to former President Trump’s continued lies about voter fraud, legislators across the country are aggressively attempting to limit voting access and roll back the gains of an election conducted during a deadly pandemic. These proposed bills will make it harder to vote, target voters of color, and take aim at the very election changes — such as mail voting — that made the 2020 election not only successful but possible. According to a Brennan Center Report, as of September 27, lawmakers had enacted at least 33 laws with restrictive provisions in 19 states. Overall, legislators had introduced more than 425 bills with restrictive provisions in 49 states.
The most chilling prospect for the 2022 and 2024 elections is the army of MAGA movement activists who – at the urging of Steve Bannon – have been signing up to serve as poll watchers in competitive states across the country. On his War Room podcast, Bannon proposed in May: “It’s going to be a fight, but this is a fight that must be won, we don’t have an option,” “We’re going to take this back village by village … precinct by precinct.” According to Pro Publica, after Bannon’s endorsement, the precinct strategy “rocketed across far-right media. Viral posts promoting the plan racked up millions of views on pro-Trump websites, talk radio, fringe social networks and message boards, and programs aligned with the QAnon conspiracy theory.”
To be sure, the Brennan Center report went on to point out that during the same timeframe, nearly 1,000 bills with expansive provisions for voting were introduced in 49 states. Both of these efforts are a sign that the Trump era has left a heritage of “movement/countermovement interaction” within the institutions of American federalism -- to adopt the terminology of sociologists David Meyer and Suzanne Staggenborg. But although the regime of Donald Trump exacerbated this trend, the intersection of social movements, federalism, and party politics goes back well before Trump’s election. Indeed, we can only understand it if we look harder than legal scholars have done at what Heather Gerken calls “Federalism 3.0.” The politicization of federalism is leading to what political scientist Jacob Grumbach calls states as “laboratories against democracy.”
Three main factors in the recent past will make clear what is new – and dangerous -- in this conjunction of movements, parties, and federalism: the massive shift in the center of gravity of social movements to the national level; their intersection with the party system; and the thoroughgoing national partisanization of federalism.
• First, on social movements: In her 2017 address, Gerken declared that “States are not sites where groups can shield themselves from national policy, national politics, or national norms. Instead, they are the sites where we battle over-and forge-national policy, national politics, and national norms. National movements, be they red or blue, begin at the local level and move their way up.” (p. 1696, italics added). And a few paragraphs later, she concluded that social movements are almost always built from the ground up, moving through local and state sites before hitting the national state (Ibid., 1710).
If Gerken had been writing of the country through which Alexis de Tocqueville traveled in the 1830s, her image of grassroots movements percolating upward would have been unassailable. But by late in the century, a vast proportion of the “local” social movements were triggered by the agents of national organizations. A century later, Tocqueville’s grassroots civic groups had been largely displaced by professionally-run national organizations. By the turn of the 21st century, locally-rooted activists often found themselves “bowling alone” -- to adopt the language of Robert Putnam. One reason why today’s federalism is not your grandfather’s federalism is because major social movements have decamped to the national level.
• The second trend that is relevant to the new federalism is the growing intersection between social movements and the party system. This was in part because parties, in the early 21st century, began to be “hollowed out”, allowing movement activists to move foursquare into their grassroots bases. This did not happen all at once, and except for a few astute observers, its revolutionary import went largely unnoticed.
But direct primaries opened the state and local levels of the party system to the influence of social movements, some of which – like the Tea Party – linked up with deep-pocketed national advocacy groups. If this trend was more pronounced on the right than among Democrats, it was because the Democratic Party has been – since the New Deal – a collection of interest groups, while the Republican Party was more open to a sequence of ideological incursions. First the New Right, then the Christian Right and, finally, the Tea Party, found their way into the core of the GOP and opened the funding of elections to groups like the Koch network.
• The third trend -- the “partisanization” of state federalism -- closes the circle. While the states were seen as “laboratories of democracy” by Justice Brandeis in New State Ice Company v Liebmann – in recent years states have become “laboratories of national partisan politics,” to adopt Jessica Bulman-Pozen’s gloss on Brandeis. Parties have always looked on state and local governments as sources of ripe political plums, but as she argues, “Partisan federalism…involves political actors’ use of state and federal governments in ways that articulate, stage, and amplify competition between the political parties, and the affective individual processes of state and national identification that accompany this dynamic (p. 1080).” “The framework of partisan federalism,” she concludes, “highlights the mutual entailment of nationalism and federalism in the early twenty-first century” (p. 1082).
Together, these three trends help us to understand how the states have shifted from Brandeis’s “laboratories of democracy” to Grumbach’ s “laboratories against democracy.” Arraying a wealth of data on state policy, public opinion, money in politics, and democratic performance, he traces how national groups have learned to infiltrate state governmental authority to suppress the vote, gerrymander districts, and pass laws that inhibit free speech as well as laws that erode environmental protections. In contrast to the brave hopes of “progressive federalism” advocates, Grumbach’s soon-to-be published Laboratories against Democracy shows how national political conflicts are increasingly flowing through the subnational institutions of state politics—with profound consequences for public policy and for democracy itself.
Although Trumpism amplified these trends, they go back well before his movement’s insertion into the heart of the Republican Party. Best known is the takeover of election finance by unregulated corporate money accelerated by the Citizens United case, which enabled big-money interests to displace the parties as sources of campaign funding. Less visible, but just as important for creating laboratories against democracy, were the efforts of Republican-controlled state legislatures to reduce the rights of protesters, both before and during the Trump administration. In a recent article on the suppression of protest, Chan Suh and I found that the strongest predictor for the proposal of bills to strangle free assembly was the gerrymandering of election districts by the GOP after the midterm elections of 2010.
These trends have come together in the cross-state diffusion of movements and policies that impair democracy. Professor Bulman-Pozen gestures in this direction where she points to the growing tendency for individual voters to identify with states beyond their own state borders, in something like what political scientist Jane Mansbridge calls “surrogate representation.” “A Democrat living in a Republican state,” writes Bulman-Pozen, “can look not only to Democratic members of Congress, but also to states that are governed by Democrats…. Surrogate representation is likely to be more of a wholesale than retail phenomenon at the state level” (p. 1133).
Professor Bulman-Pozen’s metaphor is suggestive, but there is a more powerful effect of cross-state diffusion at work: the growing ability of nationally-based movement organizations to pressure state legislators across state lines. In his deep analysis of organizations like the State Policy Network and the Association of Legislative Exchange Council (ALEC), Alexander Hertel-Ferndandez, in his book State Capture, found that these organizations have had profound effects on state legislative initiatives. What looks from above like the diffusion of policy initiatives from state to state is increasingly the diffusion of policy initiatives to the state level by policy brokers operating from above.
For example, in our work on the suppression of protest, Chan Suh and I found a robust correlation between the number of legislators in a state who are members of ALEC and legislative efforts to penalize or discourage protesters (Suh and Tarrow, p. 16). This was most pronounced during the Trump administration, but it could already be found in the “police protection bills” proposed by many legislatures in response to the Black Lives Matter movement. And these are the same legislators who have been working hard to curtail voting rights and to insert Republican activists into the electoral machinery since Trump’s defeat.
Do not mistake me: I do not want to minimize the influence of Donald Trump and the movement he founded. Trump has sharpened and provided a focal point for many of the anti-democratic currents in American political culture. But these currents were already swirling at and around the state level of American federalism when he came to power. It is only by understanding the trifecta of the nationalization of social movements, the hollowing out of the party system, and the implications of partisan federalism that these trends can be effectively countered that a new progressive Federalism can be achieved.