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Romney's Wrong: States Are More Responsive to Special Interests Than Voters

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In America today, conservatism's one clear fault line, cutting across cultural and socioeconomic schisms, aligns conservatives based on their views about the relationship between government and its citizens.

On one side are born-again libertarians, like supporters of perpetual presidential candidate Ron Paul. Believing that governmental power and personal freedom are always and everywhere inversely related, born-again libertarians are hostile to government at all levels: national, regional and local. (And don't get them started about multinational entities like the IMF.)

On the other side of the line are federalist conservatives, by far the larger group, who are selective in their anti-government animus. Federalist conservatives, exemplified by Mitt Romney, don't hate all government. They fear and loath the federal government, which, in their view, can do nothing right, while they simultaneously favor, even wax nostalgic over, state and local governments, which, purely because of their smaller scale and proximity to individual citizens, can do no wrong.

This division is illustrated by the debate over President Obama's health care reform. To Democrats, health care is a national issue that can only be managed by forcing all providers, consumers, employers and third-party payers (insurance companies) into a single national market, with the feds creating uniform standards and policing all participants.

To born-again libertarians, any government mandate is anathema: citizens should be free both to forgo insurance and to suffer the consequences of their stupidity. (Ron Paul has been nothing if not consistent in this regard, saying during one presidential debate that hospitals should not be forced to rescue critically-ill citizens who opt not to purchase health insurance.)

Federalist conservatives also oppose the federal mandate -- the requirement that all citizens have insurance, whether individually or through their employers. However, their argument against it is not that government in general is without authority to force citizens to buy insurance, but that the federal government has no such power.

This is how Romney rationalizes his opposition to Obamacare with his authorship of "Romneycare" in Massachusetts, which, like the federal program, mandates citizen participation in the state-managed health care system. It is also the ideological tap dance of the Supreme Court's conservative justices.

They have questioned whether Congress infringes state sovereignty by dictating that citizens purchase medical insurance. By implication these same justices are saying -- and may, in fact, rule later this spring -- that, while the feds lack power to impose the disputed mandate, state governments do not. State governments, according to this view, may do whatever they wish in the healthcare arena.

The federalists' blind faith in state governments is naive in the extreme. Sixty-five years ago, this deference to state government, championed then by another Republican presidential candidate, Barry Goldwater, ignored the tenacity and insidiousness of racism in state legislatures and judiciaries (and not only in the South). Today, this faith ignores the corruption in state governments across the country.

By corruption, I don't mean the hard crimes of bribery and extortion -- although there's no shortage of those, as revealed again and again in undercover investigations mostly conducted, notably, by the FBI (not state and local police, who tend to look the other way). I'm referring to the soft corruption of legislators and regulators who are bought and paid for by special interest groups, which are able to operate openly and with impunity at the state level.

The truth is that state legislatures and regulatory agencies are sewers compared to Washington, D.C.; Washington is an Athenian idyll compared to Sacramento (or Albany, Trenton, Boston et al).

Washington may have the highest concentration of lobbyists in the world, but their comings and goings are observed by the largest concentration of national and international news media in the world. In Sacramento, by contrast, the press corps, never big in the best of times, has been decimated by cutbacks in staffing levels at all the major news organizations.

While special interests in Washington are well represented, well funded and not shy about wielding influence in the legislative process, they are also held in check by competing special interests. The predations of Wall Street investment banks are countered by Main Street banking interests. Hollywood's campaign for laws to stop online movie-pirating is offset by the high-tech industry's fear of increased regulation of the internet. Big Pharma is neutralized by generic drug manufacturers. Health insurers, forever seeking higher rates, are blocked by Fortune 500 corporations that have to pay their policy premiums.

At the state level, however, entrenched special interests always prevail because they stand to gain more from a given change in the law than the costs imposed on any competing special interests -- the costs, at the level of a single state, are dispersed too broadly to generate effective opposition, even though those costs, cumulatively, may be crippling to the state.

This is why public employee pensions in California and other states are unsustainable, while pensions for federal employees are not. This is why prison guards, public school teachers, insurance companies, police and trial lawyers are able to dictate their legislative agendas in Sacramento and other state capitols, but have have far, far less clout at the federal level.

Federalist conservatives love shifting power from the federal government to states because they believe that the closer government is to its citizens, the more responsive it is to those citizens. They could not be more wrong. In today's America, the closer government is to its citizens, the more responsive it is to special interests (and indifferent to citizens' interests).
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Peter Scheer, a lawyer, is executive director of the First Amendment Coalition (FAC). The views expressed here are his alone, and do not necessarily reflect the views of FAC's Board of Directors.