How Washington Ruined Governors
They used to care more about problem-solving than ideology. Now state capitals increasingly imitate the national parties.
Even for longtime advocates on both sides of the emotional gun-control debate, the events of March 8 were enough to induce whiplash.
On that day, South Dakota became the first state to explicitly authorize school employees to carry guns, when Republican Gov. Dennis Daugaard signed legislation sent to him by Republican majorities in both chambers of the Legislature. The bill represented a resounding victory for the National Rifle Association.
That same day, after an exhaustive debate approximately 525 miles away in Denver, the Democratic-controlled state Senate, joining the Democratic House, gave preliminary approval to Colorado's most sweeping gun-control package in years — including measures to impose universal background checks on gun purchases and to prohibit the sale of ammunition magazines containing more than 15 rounds. Despite strong opposition from gun-owner groups and Republicans, Democratic Gov. John Hickenlooper signed the legislation later in March, capping a decisive victory for gun-control supporters.
That sort of jarring juxtaposition has become increasingly common across the United States. Exactly one week after Colorado and South Dakota split on guns, the Republican-controlled Legislature in North Dakota approved the nation's most restrictive abortion law on the same day the Democratic-controlled Legislature in Maryland, fulfilling one of Democratic Gov. Martin O'Malley's top priorities, voted to repeal the state's death penalty. One day before that, Louisiana Republican Gov. Bobby Jindal, catching a rising wave among GOP state executives, proposed to eliminate the state's personal income and corporate taxes, replacing the lost revenue with a vastly expanded sales tax. And just two days earlier, Colorado's House gave final approval to legislation authorizing same-sex civil unions, while gay-marriage legislation cleared committees in the Minnesota House and Senate, both controlled by Democrats.
Some of these initiatives will not become law. But in their ambition, and proliferation, they show how the same pressures that have polarized the parties in Washington are reshaping policy-making in the states. Across the full range of economic and cultural issues, Democratic and Republican state officials are pulling apart far more than they did as recently as two decades ago. On gun control, gay marriage, immigration, taxes, and participation in President Obama's health reform law, among other issues, states that lean red and those that lean blue are diverging to an extent that is straining the boundaries of federalism. "I can't recall any time in American history where there was such a conscious effort to create such broad divisions, without any sense of how it is all going to turn out," says Donald Kettl, dean of the public-policy school at the University of Maryland and an expert on public administration.
"The momentum [in restricting abortions] is very definitely on our side." — Charmaine Yoest, Americans United for Life
In many places, this widening gap is recasting the role of governors. Well into the 1990s, state executives considered themselves more pragmatic than members of Congress; they regularly shared ideas across party lines and often sought to emerge nationally by bridging ideological disputes. Some of that tradition endures. But now, governors are operating mostly along parallel, and partisan, tracks. On each side, they are increasingly pursuing programs that reflect their party's national agenda — and enlisting with their party on national disputes such as health care reform. "Everything has been infected with the national political debate," says Bruce Babbitt, who served as Arizona's centrist Democratic governor for two terms and later as President Clinton's Interior secretary. "And it's really destructive." Tommy Thompson, who launched a flotilla of innovations emulated by governors in both parties during his four terms as Wisconsin's Republican chief executive, agrees. "Anyone who looks at this in an impartial way has to say we have become a more partisan nation," he says. "I think we have [become] much more doctrinaire with our philosophies and much more locked into our positions."
BLUE REVIVAL
The last time National Journal examined the trends in state policy-making (see "Separate Ways") the energy and ambition was greatest among the flood of GOP governors who surged into office in the electoral wave of 2010. Republicans, either newly empowered or fortified with expanded majorities, marched confidently through the Rust and Sun Belts into confrontations over spending, restricting collective-bargaining rights for public employees, and social issues.
Across the states, Republicans continue to push sweeping agendas. The change is that in blue-leaning states, Democrats, perhaps invigorated by Obama's 2012 campaign and reelection, are now pursuing left-of-center programs of comparable ambition. In Maryland, for instance, O'Malley since 2012 alone has helped to steer through ballot initiatives legalizing gay marriage and providing in-state tuition to the children of illegal immigrants. He also engineered the passage of legislation repealing the death penalty and tightening gun control, as well as measures authorizing the medical use of marijuana and providing driver's licenses to illegal immigrants.
"We were much more willing [in the past] to take on individuals in our political party when we knew it was right for our state." — Former Wisconsin Gov. Tommy Thompson
Gun control probably captures the shifting dynamic most clearly. Since the 1990s, the NRA and gun owners have dominated the debate. Over the past quarter-century, through a wide swath of states, the NRA first won approval of "shall issue" state laws authorizing citizens to carry concealed weapons and then in recent years has returned to loosen the restrictions on that right, winning permission in some states for those with permits to carry their weapons in bars or on college campuses. At the furthest edge on that continuum, Arizona and three other states allow residents to carry guns without getting any permits.
GRAPHIC:
How the States are Pulling Apart
But the atmosphere in the states has shifted notably since the elementary-school massacre in Newtown, Conn. last year, which also prompted Obama to declare gun control a top priority after almost entirely sublimating the issue in his first term. Against this backdrop, Democratic governors and legislators have recovered their voices on the issue, after a long silence. "We have had strong states for years "¦ especially with California being able to pass a lot of strong laws," says Brian Malte, director of mobilization for the Brady Campaign to Prevent Gun Violence. "But, that said, the states with stronger gun laws hadn't passed [further] laws in a while. [Now] that's really ramped up."
In January, New York Gov. Andrew Cuomo signed legislation that expanded the state's assault-weapons ban, limited ammunition magazines to seven rounds, and required universal background checks. In March, Hickenlooper signed Colorado's bill limiting magazine size and imposing background checks. Maryland has approved a package that includes an assault-weapons ban and magazine limits, as well as a fingerprint requirement for handgun purchases. Connecticut Democratic Gov. Dannel Malloy last week signed into law a sweeping package that includes bans on assault weapons and large magazines, and background checks. Gun-control measures that include expanded background checks and magazine limits are also advancing through Democratic-controlled legislatures in California, Delaware, Oregon, and New Jersey, although Chris Christie, the Garden State's Republican governor, said he won't comment on the proposals unless and until they reach his desk. A bill to expand background checks also cleared a committee vote in March in the Minnesota state House but faces an uncertain future on the floor.
This fusillade of activity in blue states, though, hasn't breached the skepticism of gun control in red ones. In 2012, Ohio and Virginia both approved legislation loosening concealed-carry restrictions. This year, South Dakota has authorized the arming of school personnel, Virginia has barred state courts from disclosing information about concealed-carry permit holders, and Tennessee has allowed concealed-carry permit holders to transport guns in their car trunks, even without permission from private-property owners. Meanwhile, Republican legislators in Idaho, Michigan, Mississippi, Missouri, Texas, Virginia, and Wyoming have advanced, to varying degrees, mostly symbolic legislation to impede or block entirely the enforcement of new federal gun-control measures. Republican state Rep. Steve Toth has introduced legislation in Texas that would make it a crime for local officials to enforce any federal ban on assault weapons or large-capacity magazines.
Gun-control initiatives have faltered in some blue states this year, including Washington. But after years of inaction, the revival of activism in Democratic-leaning places has widened the chasm between blue and red states. The same pattern is evident on gay marriage. For most of the period since 2000, the story was the cascade of culturally conservative states that passed legislation or ballot initiatives banning same-sex marriages. But in more culturally liberal states, the momentum decisively shifted in 2011 when Delaware, Hawaii, Illinois, and Rhode Island all enacted civil-union laws, and New York trumped them by becoming the largest state to approve gay marriage. In 2012, three more blue states — Maine, Maryland, and Washington — became the first to pass ballot initiatives authorizing gay marriage; Minnesota voters rejected a ballot initiative to ban it.
"My focus is to create a red-state model" that can be touted by the GOP in 2016. — Kansas Gov. Sam Brownback
This year, the momentum for advocates of same-sex marriage has continued, with the passage of the civil-union bill in Colorado (where a constitutional amendment still bars gay marriage), and votes by the Democratic-controlled Senate in Illinois and House in Rhode Island to move from civil unions to full-scale marriage recognition. Rhode Island's bill appears stalled in the state Senate, but the Legislature could still allow voters to decide the issue through a referendum. The powerful Illinois House speaker declared recently that the bill in his chamber was still a dozen votes short of passage, but supporters believe they are closer than that as a vote nears. "I'm optimistic," said Democratic Lt. Gov. Sheila Simon. "I have been making phone calls to House members. My advice to them is that if they are not persuaded by anything I have to say, listen to your kids."
Whatever happens in Rhode Island and Illinois, the trends on gay marriage have produced a striking contrast. The core blue states are the 18 that have voted Democratic in at least the past six presidential elections. Twelve of those 18 have approved either gay marriage or civil unions, and that number could rise to 14 if legislation passes in Minnesota and the Supreme Court upholds the lower-court decisions establishing the right to same-sex marriage in California. (Even if the high court overturns those rulings, polls show solid majority support in California for a potential ballot initiative to legalize gay marriage there.) By later this year, it's possible that only Michigan, Oregon, Pennsylvania, and Wisconsin among the "blue wall" states will have failed to join that list (the latter two states provide some "domestic partnership" benefits to same-sex couples).
Yet the only other states that have recognized marriage or civil unions are Iowa and New Hampshire (both of which have voted Democratic in five of the past six presidential elections) and Colorado, which has tilted demonstrably toward Democrats in the past two elections. Meanwhile, few of the remaining states that have banned gay marriage show signs of reconsideration. "The states that have already affirmed traditional marriage by constitutional amendment or other means are unlikely to reverse that action in the foreseeable future, because of the demographics of those states," says veteran social-conservative leader Ralph Reed, founder and chairman of the Faith and Freedom Coalition.
THE GREAT DIVERGENCE
If the Supreme Court finds no right to gay marriage in the Constitution — an outcome that seems likely — the nation may in effect run the kind of experiment that the Court's Roe v. Wade decision preempted in 1973. As with abortion before Roe, gay marriage might be legal in some states but barred in others indefinitely. This sharp separation is presenting "really difficult and almost imponderable questions," Kettl says. "On issues of social policy, are we prepared for fundamentally dividing the country? When you have a couple that is legally married in one state that moves to another state where gay marriage is not legal, what happens to them? ... We're going back through a hidden door we didn't know existed to envision what "˜equal protection' means."
The great divergence in the states is even shaking the national right to abortion that the Roe decision had seemingly settled 40 years ago. In the months following their 2010 ascendance, Republicans pursued a towering wave of state laws to restrict abortion, including mandatory ultrasound examinations in states from Florida and Virginia to Arizona and Texas; measures to defund Planned Parenthood; stringent regulations on abortion providers; and expanded waiting periods. In 2011-12, seven Republican-leaning states (including Alabama, Kansas, and Louisiana) all barred access to abortion after 20 weeks; Arizona banned the procedure after 18 weeks.
Courts have blocked several of those laws, but this burst of activity has energized abortion opponents. "The momentum is very definitely on our side," says Charmaine Yoest, president of Americans United for Life. Advocates for legalized abortion don't much disagree. Vicki Saporta, president of the National Abortion Federation, says that 2011 saw a new peak in the passage of state-level abortion restrictions, followed only by 2012. "The states that weren't necessarily hostile to abortion rights have become increasingly hostile," she says. "Bills, once they are introduced in one state, they make the circuit."
This year has seen some flicker of abortion activism in blue states, with New York's Cuomo pledging to introduce legislation to strengthen abortion rights. But the principal thrust continues to be restrictive. In Arkansas, the Republican-controlled Legislature overrode the veto of Democratic Gov. Mike Beebe to ban abortions after 12 weeks. That was quickly topped by the North Dakota legislation, which barred most abortions after six weeks; GOP Gov. Jack Dalrymple signed it in late March. (North Dakota legislators then agreed to place before voters a "personhood" constitutional amendment that would, in defiance of Roe, ban all abortions.) Alabama, Indiana, Kansas, Kentucky, and South Dakota are among the other red states advancing further restrictions. In Texas, Gov. Rick Perry is backing legislation to impose a 20-week ban and to tighten regulation of abortion clinics to a point that critics say would force most in the state to close.
"States are becoming more conservative around abortion issues," says Elizabeth Nash, who tracks state policy for the Guttmacher Institute. "It really is becoming a free-for-all."
The separation is only slightly hazier on the treatment of marijuana. With the exception of a few libertarian-leaning Western states (such as Alaska, Arizona, and Montana) almost all of the states that have authorized the medicinal use of marijuana lean Democratic in presidential elections, as do Washington and Colorado, the two that last fall approved recreational use.
And it's not only social issues that are separating the states. Although governors in both parties have curtailed public employees' retirement benefits, Republicans have often gone further and, in some cases (like Wisconsin's Scott Walker), vastly heightened the confrontation with state workers by seeking to simultaneously roll back their right to collective bargaining. Conservatives' plans to provide vouchers to parents or tax credits to help pay for private school, stalemated for decades at the federal level, have advanced in red states such as Alabama, Arizona, Indiana, and Louisiana (although the attempt in the latter has been blocked in court).
As the economy recovers, red and blue governors are diverging on taxes as well. GOP Govs. Bobby Jindal in Louisiana and Sam Brownback in Kansas proposed plans to eliminate the state income tax and replace the lost revenue by increasing the sales tax — a trade that critics complain will inevitably tilt the tax burden away from the affluent toward lower-income families. Although opposition forced Jindal to drop his plans this week, Republican legislators in Georgia and North Carolina have discussed similar proposals. Govs. Walker in Wisconsin, Mike Pence in Indiana, and John Kasich in Ohio, and GOP legislators in Missouri and Oklahoma are pursuing more modest income-tax cuts. In sharp contrast, Democrats Cuomo in New York, O'Malley in Maryland, Pat Quinn in Illinois, and Jerry Brown in California since 2011 have driven through tax increases, mostly on top earners, and Minnesota's Mark Dayton and Massachusetts' Deval Patrick are seeking to follow suit this year. Patrick, reversing the Brownback/Jindal formula, wants to raise income taxes to cut sales taxes.
On health care, the chasm between the parties is wider still. Only eight of the 30 Republican governors have agreed to participate in the expansion of Medicaid central to Obama's health reform law — and in Arizona and Florida, Republican state Legislatures are balking. Meanwhile, all 19 Democratic governors except West Virginia's Earl Ray Tomblin have already indicated their intent to expand. Likewise, just six Republican governors, compared with 17 Democrats, have agreed to either fully operate state-level health care exchanges or to run them in partnership with Washington.
"We believe that by being an early implementer of health care, we would have a competitive economic advantage over other states," says Maryland's O'Malley, who is both expanding Medicaid and opening a state exchange. "Those states that are incapable of shedding their ideology "¦ will find themselves at a disadvantage."
A NEW MODEL
Tension between national imperatives and state flexibility has been a constant in the American political system since the Constitutional Convention rebuffed James Madison's desire to let Congress veto state laws. The nation has lived with enormous differences among the states that sometimes endured for generations. The United States existed as a "house divided" between slave and free states from the 1770s until the Civil War, and then allowed the South to maintain segregation from the 1880s until the 1964 Civil Rights Act dismantled it. The Supreme Court didn't override all state laws prohibiting interracial marriage until 1967, nearly two centuries after Pennsylvania became the first state to repeal its own ban. All states didn't mandate compulsory public education until 66 years after the first one (Massachusetts) did in 1852.
Yet the general scope of congressional lawmaking and judicial decisions through the 20th century was to narrow the differences among the states. That was both because Washington assumed more power to set national standards (on environmental regulation, wage and hour laws, and racial equality, for instance), and because the Supreme Court established more national rights that overrode variations in state law (on everything from school desegregation to abortion and interracial marriage).
Over roughly the final third of the 20th century, particularly once the divisive issues of civil rights receded and more states focused on a common agenda of economic development, this movement accelerated. State lawmakers converged around a burst of policy innovation that led some to describe the period as a second Progressive Era. From the 1970s through the 1990s, many of the most prominent governors in both parties prided themselves on recombining ideas from left and right on issues such as education, health care, transportation, and welfare. David Osborne, a consultant and author, profiled half a dozen leading governors during the 1980s for a seminal book on state innovation, Laboratories of Democracy. "They would communicate with each other across party lines, and when you'd go interview them, they would say things like, "˜Governors from the different parties have more in common with each other than they do with colleagues from the same party in Washington,' " Osborne recalled in a recent interview. "And for many of them, it was true."
Over those three decades, many ideas that first took root among governors in one party flowered among their colleagues in the other and ultimately influenced the national debate in Washington. President George H.W. Bush's landmark national conference on education reform in Charlottesville, Va., in 1989 grew from the push for stiffer standards from governors such as Democrats James Hunt in North Carolina, Dick Riley in South Carolina, and Republican Lamar Alexander in Tennessee. The charter-school movement began with measures in Minnesota and then California, drafted in each case by Democratic legislatures and signed by Republican Govs. Arne Carlson and Pete Wilson, respectively; the idea then became a central component of Clinton's national education agenda. Welfare reforms pioneered and tested by Tommy Thompson in Wisconsin and then-Gov. Clinton in Arkansas inspired the national reform legislation passed by the GOP Congress and signed by Clinton in 1996. The bipartisan Clinton-backed 1997 legislation establishing the State Children's Health Insurance Program for kids of the working poor was based on breakthrough efforts in states led by Minnesota. Even as late as 2001, President George W. Bush drew on state educational reform experiences, including his own in Texas, to design the No Child Left Behind Act.
Throughout this period, the gubernatorial model was eclectic, the barriers between the parties porous. Babbitt, Arizona's governor at the time, remembers consulting with Republican Sen. Alan Simpson of Wyoming as he drafted his landmark federal immigration-reform bill in 1986. Thompson worked with Democrats who controlled the Wisconsin state House to pass his pathbreaking welfare reforms and learned from lunches with welfare recipients he invited to the state Capitol. "Most of my ideas came from welfare mothers," Thompson says. "I don't think you would see that today." During the national welfare-reform debate, Thompson and other GOP governors even publicly sided with Clinton to oppose a central component of the House Republican plan — something else Thompson doesn't think would happen now. "We were much more willing to take on individuals in our political party when we knew it was right for our state," he says. "Politically today that would not be a smart move. Back then it was much more of the right thing to do."
Differences between the two parties never entirely disappeared, but, politically and personally, governors frequently defined themselves in counterpoint to the Washington debate that grew steadily more polarized and predictable. The National Governors Association prided itself on finding consensus on issues that divided the parties in Congress, recalled Raymond Scheppach, now a University of Virginia professor of public policy, who served as the group's executive director from 1983 through 2010. "A lot of the times, 10 or 15 years ago, you would sit in the room with the governors and you couldn't account for who were the Republicans and who were the Democrats," he says.
This heterodoxy was rewarded. The governors who emerged as national figures — and, frequently, presidential candidates — were generally not the most partisan but those who most creatively blended ideas from the two parties. That list included such Democrats as Babbitt, Clinton, Michael Dukakis, James Hunt, and Dick Lamm; and Republicans such as Alexander, John Engler, Tom Kean, Thompson, and Wilson. As late as 2000, George W. Bush rose from Texas in this mold, running initially as a "compassionate conservative" who worked with state Democrats to fight "the soft bigotry of low expectations" hobbling education for minority children.
Some of this traditional model is still visible in the performance of governors such as Republican Chris Christie in New Jersey, who worked closely with Obama on Hurricane Sandy relief and has praised his state's tough gun-control laws; the experiments in expanded preschool in red states Georgia and Oklahoma that helped inspire Obama's push on the issue; and in the decisions by New York's Cuomo and Maryland's O'Malley to pursue givebacks in pension benefits for public-employee unions vital to the Democratic coalition.
But, in most cases, the path to prominence for governors today is very different. In today's highly polarized political environment, they are more likely to emerge as national figures by championing and advancing their party's core ideas than by defying or rethinking them. Proposals still travel from state to state but along partisan tracks: Republicans draw inspiration from other Republicans, and Democrats from Democrats.
The change has been especially pronounced in the GOP. The Right, led by groups such as the American Legislative Exchange Council, has built a more robust transmission belt than the Left for moving edgy proposals from one state to another. And Republican state officials have hardened their own focus. During the earlier period, GOP governors usually argued that Washington should devolve more power to the states but accepted the premise that state government retained a large area of responsibility. Now, more Republican governors echo the arguments from congressional conservatives that the key to prosperity is retrenching government's role at every level. "It's not just states' rights: They don't want any government to do these things," says Neera Tanden, a longtime Democratic policy analyst who now is president of the liberal Center for American Progress. Republicans wouldn't phrase the shift in exactly those terms, but especially after the GOP's consecutive presidential defeats, many Republican governors seem determined to forge a model of small-government conservatism for the national party. Brownback recently touted his tax cuts to The Wall Street Journal by insisting: "My focus is to create a red-state model that allows the Republican ticket [in 2016] to say, "˜See, we've got a different way, and it works.' "
This competition has inspired ambitious activity in both red and blue states. But many analysts question whether these initiatives really embody the "laboratory of democracy" ideal of state tinkering or rather reflect a centrally directed model in which states, often at the prodding of national interest groups, serially fall in line behind their party's national agenda. Babbitt expresses a widespread concern that states have diminished their capacity to genuinely innovate because their every choice is framed through the national partisan struggle. "The divergences in the laboratory-of-democracy idea ought to grow out of grassroots experience" in the states, he says. "It's not the case now. It's a top-down divergence being driven by national ideological arguments. It's not an experimental model, and it's not a very productive exercise." Rather than ideas rising from the states to Washington, he says, governors are being "conscripted and corrupted into the national political debate."
Governors have adopted this more partisan posture in response to "bottom-up as well as top-down" pressures, notes Scheppach, the former NGA official. The pressure from below springs from the electorate's ongoing ideological re-sorting, which has tilted more states decisively toward one partisan side or the other, and simultaneously increased the pressure for purity and reduced the incentive for bipartisan compromise. Today, Republicans control both legislative chambers and the governorship in 24 states, and Democrats hold unified control in another 12, leaving an unusually small pool of states with divided government. The pressure from above is the same demand for greater party unity from party leaders, activist groups, and overtly partisan media of the Left and Right that has transformed Congress into a quasi-parliamentary institution. "I just think there's been a pounding by their respective parties in the very long run to get in line," Scheppach says. Thompson believes that ambition reinforces that dynamic, because many governors at least fantasize about seeking the presidency, and they recognize how difficult it's become to win a nomination with a record that challenges their party's ideological vanguard.
The causes may differ from place to place, but the common effect has been to send red and blue states hurtling in opposite directions on the critical choices they face. Not long ago, the states mostly operated as an exception to the war between the parties in Washington. Now they look more like an extension of it.
BLUE REVIVAL
The last time National Journal examined the trends in state policy-making (see "Separate Ways") the energy and ambition was greatest among the flood of GOP governors who surged into office in the electoral wave of 2010. Republicans, either newly empowered or fortified with expanded majorities, marched confidently through the Rust and Sun Belts into confrontations over spending, restricting collective-bargaining rights for public employees, and social issues.
Across the states, Republicans continue to push sweeping agendas. The change is that in blue-leaning states, Democrats, perhaps invigorated by Obama's 2012 campaign and reelection, are now pursuing left-of-center programs of comparable ambition. In Maryland, for instance, O'Malley since 2012 alone has helped to steer through ballot initiatives legalizing gay marriage and providing in-state tuition to the children of illegal immigrants. He also engineered the passage of legislation repealing the death penalty and tightening gun control, as well as measures authorizing the medical use of marijuana and providing driver's licenses to illegal immigrants.
"We were much more willing [in the past] to take on individuals in our political party when we knew it was right for our state." — Former Wisconsin Gov. Tommy Thompson
Gun control probably captures the shifting dynamic most clearly. Since the 1990s, the NRA and gun owners have dominated the debate. Over the past quarter-century, through a wide swath of states, the NRA first won approval of "shall issue" state laws authorizing citizens to carry concealed weapons and then in recent years has returned to loosen the restrictions on that right, winning permission in some states for those with permits to carry their weapons in bars or on college campuses. At the furthest edge on that continuum, Arizona and three other states allow residents to carry guns without getting any permits.
GRAPHIC:
How the States are Pulling Apart
But the atmosphere in the states has shifted notably since the elementary-school massacre in Newtown, Conn. last year, which also prompted Obama to declare gun control a top priority after almost entirely sublimating the issue in his first term. Against this backdrop, Democratic governors and legislators have recovered their voices on the issue, after a long silence. "We have had strong states for years "¦ especially with California being able to pass a lot of strong laws," says Brian Malte, director of mobilization for the Brady Campaign to Prevent Gun Violence. "But, that said, the states with stronger gun laws hadn't passed [further] laws in a while. [Now] that's really ramped up."
In January, New York Gov. Andrew Cuomo signed legislation that expanded the state's assault-weapons ban, limited ammunition magazines to seven rounds, and required universal background checks. In March, Hickenlooper signed Colorado's bill limiting magazine size and imposing background checks. Maryland has approved a package that includes an assault-weapons ban and magazine limits, as well as a fingerprint requirement for handgun purchases. Connecticut Democratic Gov. Dannel Malloy last week signed into law a sweeping package that includes bans on assault weapons and large magazines, and background checks. Gun-control measures that include expanded background checks and magazine limits are also advancing through Democratic-controlled legislatures in California, Delaware, Oregon, and New Jersey, although Chris Christie, the Garden State's Republican governor, said he won't comment on the proposals unless and until they reach his desk. A bill to expand background checks also cleared a committee vote in March in the Minnesota state House but faces an uncertain future on the floor.
This fusillade of activity in blue states, though, hasn't breached the skepticism of gun control in red ones. In 2012, Ohio and Virginia both approved legislation loosening concealed-carry restrictions. This year, South Dakota has authorized the arming of school personnel, Virginia has barred state courts from disclosing information about concealed-carry permit holders, and Tennessee has allowed concealed-carry permit holders to transport guns in their car trunks, even without permission from private-property owners. Meanwhile, Republican legislators in Idaho, Michigan, Mississippi, Missouri, Texas, Virginia, and Wyoming have advanced, to varying degrees, mostly symbolic legislation to impede or block entirely the enforcement of new federal gun-control measures. Republican state Rep. Steve Toth has introduced legislation in Texas that would make it a crime for local officials to enforce any federal ban on assault weapons or large-capacity magazines.
Gun-control initiatives have faltered in some blue states this year, including Washington. But after years of inaction, the revival of activism in Democratic-leaning places has widened the chasm between blue and red states. The same pattern is evident on gay marriage. For most of the period since 2000, the story was the cascade of culturally conservative states that passed legislation or ballot initiatives banning same-sex marriages. But in more culturally liberal states, the momentum decisively shifted in 2011 when Delaware, Hawaii, Illinois, and Rhode Island all enacted civil-union laws, and New York trumped them by becoming the largest state to approve gay marriage. In 2012, three more blue states — Maine, Maryland, and Washington — became the first to pass ballot initiatives authorizing gay marriage; Minnesota voters rejected a ballot initiative to ban it.
"My focus is to create a red-state model" that can be touted by the GOP in 2016. — Kansas Gov. Sam Brownback
This year, the momentum for advocates of same-sex marriage has continued, with the passage of the civil-union bill in Colorado (where a constitutional amendment still bars gay marriage), and votes by the Democratic-controlled Senate in Illinois and House in Rhode Island to move from civil unions to full-scale marriage recognition. Rhode Island's bill appears stalled in the state Senate, but the Legislature could still allow voters to decide the issue through a referendum. The powerful Illinois House speaker declared recently that the bill in his chamber was still a dozen votes short of passage, but supporters believe they are closer than that as a vote nears. "I'm optimistic," said Democratic Lt. Gov. Sheila Simon. "I have been making phone calls to House members. My advice to them is that if they are not persuaded by anything I have to say, listen to your kids."
Whatever happens in Rhode Island and Illinois, the trends on gay marriage have produced a striking contrast. The core blue states are the 18 that have voted Democratic in at least the past six presidential elections. Twelve of those 18 have approved either gay marriage or civil unions, and that number could rise to 14 if legislation passes in Minnesota and the Supreme Court upholds the lower-court decisions establishing the right to same-sex marriage in California. (Even if the high court overturns those rulings, polls show solid majority support in California for a potential ballot initiative to legalize gay marriage there.) By later this year, it's possible that only Michigan, Oregon, Pennsylvania, and Wisconsin among the "blue wall" states will have failed to join that list (the latter two states provide some "domestic partnership" benefits to same-sex couples).
Yet the only other states that have recognized marriage or civil unions are Iowa and New Hampshire (both of which have voted Democratic in five of the past six presidential elections) and Colorado, which has tilted demonstrably toward Democrats in the past two elections. Meanwhile, few of the remaining states that have banned gay marriage show signs of reconsideration. "The states that have already affirmed traditional marriage by constitutional amendment or other means are unlikely to reverse that action in the foreseeable future, because of the demographics of those states," says veteran social-conservative leader Ralph Reed, founder and chairman of the Faith and Freedom Coalition.
THE GREAT DIVERGENCE
If the Supreme Court finds no right to gay marriage in the Constitution — an outcome that seems likely — the nation may in effect run the kind of experiment that the Court's Roe v. Wade decision preempted in 1973. As with abortion before Roe, gay marriage might be legal in some states but barred in others indefinitely. This sharp separation is presenting "really difficult and almost imponderable questions," Kettl says. "On issues of social policy, are we prepared for fundamentally dividing the country? When you have a couple that is legally married in one state that moves to another state where gay marriage is not legal, what happens to them? ... We're going back through a hidden door we didn't know existed to envision what "˜equal protection' means."
The great divergence in the states is even shaking the national right to abortion that the Roe decision had seemingly settled 40 years ago. In the months following their 2010 ascendance, Republicans pursued a towering wave of state laws to restrict abortion, including mandatory ultrasound examinations in states from Florida and Virginia to Arizona and Texas; measures to defund Planned Parenthood; stringent regulations on abortion providers; and expanded waiting periods. In 2011-12, seven Republican-leaning states (including Alabama, Kansas, and Louisiana) all barred access to abortion after 20 weeks; Arizona banned the procedure after 18 weeks.
Courts have blocked several of those laws, but this burst of activity has energized abortion opponents. "The momentum is very definitely on our side," says Charmaine Yoest, president of Americans United for Life. Advocates for legalized abortion don't much disagree. Vicki Saporta, president of the National Abortion Federation, says that 2011 saw a new peak in the passage of state-level abortion restrictions, followed only by 2012. "The states that weren't necessarily hostile to abortion rights have become increasingly hostile," she says. "Bills, once they are introduced in one state, they make the circuit."
This year has seen some flicker of abortion activism in blue states, with New York's Cuomo pledging to introduce legislation to strengthen abortion rights. But the principal thrust continues to be restrictive. In Arkansas, the Republican-controlled Legislature overrode the veto of Democratic Gov. Mike Beebe to ban abortions after 12 weeks. That was quickly topped by the North Dakota legislation, which barred most abortions after six weeks; GOP Gov. Jack Dalrymple signed it in late March. (North Dakota legislators then agreed to place before voters a "personhood" constitutional amendment that would, in defiance of Roe, ban all abortions.) Alabama, Indiana, Kansas, Kentucky, and South Dakota are among the other red states advancing further restrictions. In Texas, Gov. Rick Perry is backing legislation to impose a 20-week ban and to tighten regulation of abortion clinics to a point that critics say would force most in the state to close.
"States are becoming more conservative around abortion issues," says Elizabeth Nash, who tracks state policy for the Guttmacher Institute. "It really is becoming a free-for-all."
The separation is only slightly hazier on the treatment of marijuana. With the exception of a few libertarian-leaning Western states (such as Alaska, Arizona, and Montana) almost all of the states that have authorized the medicinal use of marijuana lean Democratic in presidential elections, as do Washington and Colorado, the two that last fall approved recreational use.
And it's not only social issues that are separating the states. Although governors in both parties have curtailed public employees' retirement benefits, Republicans have often gone further and, in some cases (like Wisconsin's Scott Walker), vastly heightened the confrontation with state workers by seeking to simultaneously roll back their right to collective bargaining. Conservatives' plans to provide vouchers to parents or tax credits to help pay for private school, stalemated for decades at the federal level, have advanced in red states such as Alabama, Arizona, Indiana, and Louisiana (although the attempt in the latter has been blocked in court).
As the economy recovers, red and blue governors are diverging on taxes as well. GOP Govs. Bobby Jindal in Louisiana and Sam Brownback in Kansas proposed plans to eliminate the state income tax and replace the lost revenue by increasing the sales tax — a trade that critics complain will inevitably tilt the tax burden away from the affluent toward lower-income families. Although opposition forced Jindal to drop his plans this week, Republican legislators in Georgia and North Carolina have discussed similar proposals. Govs. Walker in Wisconsin, Mike Pence in Indiana, and John Kasich in Ohio, and GOP legislators in Missouri and Oklahoma are pursuing more modest income-tax cuts. In sharp contrast, Democrats Cuomo in New York, O'Malley in Maryland, Pat Quinn in Illinois, and Jerry Brown in California since 2011 have driven through tax increases, mostly on top earners, and Minnesota's Mark Dayton and Massachusetts' Deval Patrick are seeking to follow suit this year. Patrick, reversing the Brownback/Jindal formula, wants to raise income taxes to cut sales taxes.
On health care, the chasm between the parties is wider still. Only eight of the 30 Republican governors have agreed to participate in the expansion of Medicaid central to Obama's health reform law — and in Arizona and Florida, Republican state Legislatures are balking. Meanwhile, all 19 Democratic governors except West Virginia's Earl Ray Tomblin have already indicated their intent to expand. Likewise, just six Republican governors, compared with 17 Democrats, have agreed to either fully operate state-level health care exchanges or to run them in partnership with Washington.
"We believe that by being an early implementer of health care, we would have a competitive economic advantage over other states," says Maryland's O'Malley, who is both expanding Medicaid and opening a state exchange. "Those states that are incapable of shedding their ideology "¦ will find themselves at a disadvantage."
A NEW MODEL
Tension between national imperatives and state flexibility has been a constant in the American political system since the Constitutional Convention rebuffed James Madison's desire to let Congress veto state laws. The nation has lived with enormous differences among the states that sometimes endured for generations. The United States existed as a "house divided" between slave and free states from the 1770s until the Civil War, and then allowed the South to maintain segregation from the 1880s until the 1964 Civil Rights Act dismantled it. The Supreme Court didn't override all state laws prohibiting interracial marriage until 1967, nearly two centuries after Pennsylvania became the first state to repeal its own ban. All states didn't mandate compulsory public education until 66 years after the first one (Massachusetts) did in 1852.
Yet the general scope of congressional lawmaking and judicial decisions through the 20th century was to narrow the differences among the states. That was both because Washington assumed more power to set national standards (on environmental regulation, wage and hour laws, and racial equality, for instance), and because the Supreme Court established more national rights that overrode variations in state law (on everything from school desegregation to abortion and interracial marriage).
Over roughly the final third of the 20th century, particularly once the divisive issues of civil rights receded and more states focused on a common agenda of economic development, this movement accelerated. State lawmakers converged around a burst of policy innovation that led some to describe the period as a second Progressive Era. From the 1970s through the 1990s, many of the most prominent governors in both parties prided themselves on recombining ideas from left and right on issues such as education, health care, transportation, and welfare. David Osborne, a consultant and author, profiled half a dozen leading governors during the 1980s for a seminal book on state innovation, Laboratories of Democracy. "They would communicate with each other across party lines, and when you'd go interview them, they would say things like, "˜Governors from the different parties have more in common with each other than they do with colleagues from the same party in Washington,' " Osborne recalled in a recent interview. "And for many of them, it was true."
Over those three decades, many ideas that first took root among governors in one party flowered among their colleagues in the other and ultimately influenced the national debate in Washington. President George H.W. Bush's landmark national conference on education reform in Charlottesville, Va., in 1989 grew from the push for stiffer standards from governors such as Democrats James Hunt in North Carolina, Dick Riley in South Carolina, and Republican Lamar Alexander in Tennessee. The charter-school movement began with measures in Minnesota and then California, drafted in each case by Democratic legislatures and signed by Republican Govs. Arne Carlson and Pete Wilson, respectively; the idea then became a central component of Clinton's national education agenda. Welfare reforms pioneered and tested by Tommy Thompson in Wisconsin and then-Gov. Clinton in Arkansas inspired the national reform legislation passed by the GOP Congress and signed by Clinton in 1996. The bipartisan Clinton-backed 1997 legislation establishing the State Children's Health Insurance Program for kids of the working poor was based on breakthrough efforts in states led by Minnesota. Even as late as 2001, President George W. Bush drew on state educational reform experiences, including his own in Texas, to design the No Child Left Behind Act.
Throughout this period, the gubernatorial model was eclectic, the barriers between the parties porous. Babbitt, Arizona's governor at the time, remembers consulting with Republican Sen. Alan Simpson of Wyoming as he drafted his landmark federal immigration-reform bill in 1986. Thompson worked with Democrats who controlled the Wisconsin state House to pass his pathbreaking welfare reforms and learned from lunches with welfare recipients he invited to the state Capitol. "Most of my ideas came from welfare mothers," Thompson says. "I don't think you would see that today." During the national welfare-reform debate, Thompson and other GOP governors even publicly sided with Clinton to oppose a central component of the House Republican plan — something else Thompson doesn't think would happen now. "We were much more willing to take on individuals in our political party when we knew it was right for our state," he says. "Politically today that would not be a smart move. Back then it was much more of the right thing to do."
Differences between the two parties never entirely disappeared, but, politically and personally, governors frequently defined themselves in counterpoint to the Washington debate that grew steadily more polarized and predictable. The National Governors Association prided itself on finding consensus on issues that divided the parties in Congress, recalled Raymond Scheppach, now a University of Virginia professor of public policy, who served as the group's executive director from 1983 through 2010. "A lot of the times, 10 or 15 years ago, you would sit in the room with the governors and you couldn't account for who were the Republicans and who were the Democrats," he says.
This heterodoxy was rewarded. The governors who emerged as national figures — and, frequently, presidential candidates — were generally not the most partisan but those who most creatively blended ideas from the two parties. That list included such Democrats as Babbitt, Clinton, Michael Dukakis, James Hunt, and Dick Lamm; and Republicans such as Alexander, John Engler, Tom Kean, Thompson, and Wilson. As late as 2000, George W. Bush rose from Texas in this mold, running initially as a "compassionate conservative" who worked with state Democrats to fight "the soft bigotry of low expectations" hobbling education for minority children.
Some of this traditional model is still visible in the performance of governors such as Republican Chris Christie in New Jersey, who worked closely with Obama on Hurricane Sandy relief and has praised his state's tough gun-control laws; the experiments in expanded preschool in red states Georgia and Oklahoma that helped inspire Obama's push on the issue; and in the decisions by New York's Cuomo and Maryland's O'Malley to pursue givebacks in pension benefits for public-employee unions vital to the Democratic coalition.
But, in most cases, the path to prominence for governors today is very different. In today's highly polarized political environment, they are more likely to emerge as national figures by championing and advancing their party's core ideas than by defying or rethinking them. Proposals still travel from state to state but along partisan tracks: Republicans draw inspiration from other Republicans, and Democrats from Democrats.
The change has been especially pronounced in the GOP. The Right, led by groups such as the American Legislative Exchange Council, has built a more robust transmission belt than the Left for moving edgy proposals from one state to another. And Republican state officials have hardened their own focus. During the earlier period, GOP governors usually argued that Washington should devolve more power to the states but accepted the premise that state government retained a large area of responsibility. Now, more Republican governors echo the arguments from congressional conservatives that the key to prosperity is retrenching government's role at every level. "It's not just states' rights: They don't want any government to do these things," says Neera Tanden, a longtime Democratic policy analyst who now is president of the liberal Center for American Progress. Republicans wouldn't phrase the shift in exactly those terms, but especially after the GOP's consecutive presidential defeats, many Republican governors seem determined to forge a model of small-government conservatism for the national party. Brownback recently touted his tax cuts to The Wall Street Journal by insisting: "My focus is to create a red-state model that allows the Republican ticket [in 2016] to say, "˜See, we've got a different way, and it works.' "
This competition has inspired ambitious activity in both red and blue states. But many analysts question whether these initiatives really embody the "laboratory of democracy" ideal of state tinkering or rather reflect a centrally directed model in which states, often at the prodding of national interest groups, serially fall in line behind their party's national agenda. Babbitt expresses a widespread concern that states have diminished their capacity to genuinely innovate because their every choice is framed through the national partisan struggle. "The divergences in the laboratory-of-democracy idea ought to grow out of grassroots experience" in the states, he says. "It's not the case now. It's a top-down divergence being driven by national ideological arguments. It's not an experimental model, and it's not a very productive exercise." Rather than ideas rising from the states to Washington, he says, governors are being "conscripted and corrupted into the national political debate."
Governors have adopted this more partisan posture in response to "bottom-up as well as top-down" pressures, notes Scheppach, the former NGA official. The pressure from below springs from the electorate's ongoing ideological re-sorting, which has tilted more states decisively toward one partisan side or the other, and simultaneously increased the pressure for purity and reduced the incentive for bipartisan compromise. Today, Republicans control both legislative chambers and the governorship in 24 states, and Democrats hold unified control in another 12, leaving an unusually small pool of states with divided government. The pressure from above is the same demand for greater party unity from party leaders, activist groups, and overtly partisan media of the Left and Right that has transformed Congress into a quasi-parliamentary institution. "I just think there's been a pounding by their respective parties in the very long run to get in line," Scheppach says. Thompson believes that ambition reinforces that dynamic, because many governors at least fantasize about seeking the presidency, and they recognize how difficult it's become to win a nomination with a record that challenges their party's ideological vanguard.
The causes may differ from place to place, but the common effect has been to send red and blue states hurtling in opposite directions on the critical choices they face. Not long ago, the states mostly operated as an exception to the war between the parties in Washington. Now they look more like an extension of it.