-Caveat Lector-
"Cooperation Does Not Work"
By Michael S. Greve, American Enterprise Institute
from the AEI Federalist Outlook,
http://www.federalismproject.org/outlook/9-2000.html
http://www.federalismproject.org/outlook/9-2000.html
The federal systems of Switzerland, Germany, and the European Union
. . . all provide that constituent states, not federal bureaucracies, will
themselves implement many of the laws, rules, regulations, or decrees
enacted by the central "federal" body. . . . They do so in part because
they believe that such a system interferes less, not more, with the
independent authority of the "state," member nation, or other subsidiary
government, and helps to safeguard individual liberty as well.
* Justice Stephen Breyer, Printz v. United States (1997) (dissenting
opinion)
The fact is that our federalism isn't Europe's.
* Justice Antonin Scalia, Printz v. United States (1997) (majority
opinion)
Amerika, du hast es besser.
* Johann Wolfgang von Goethe, Wendts Musen-Almanach (1831)
American federalism is in practice a cooperative federalism: state
and local governments implement federal programs, typically with federal
financial assistance. A broad political and scholarly consensus sustains
that institutional arrangement. Cooperative federalism is, however, a
terrible idea, regardless of the terms of cooperation. Federalist Outlook
No. 3 pays a visit to Germany, a citadel of cooperative federalism and,
consequently, of economic malaise and civic disaffection. Patient readers
will receive what the authors of the Federalist Papers, concluding their
inspection of European federations, called a "melancholy and monitory
lesson" on the vices of federalism, wrongly conceived. Federalist Outlook
No. 4 will address the sprawl of cooperative federalism here at home.
I Love You, You Love Me
Real federalism's lifeblood is institutional competition. The U.S.
Constitution envisions political conflict and functional separation among
independently constituted states and national institutions.
Contemporary politics and public debate are to that vision what
Barney the Dinosaur is to the World Wrestling Federation: federalism, it is
not so much argued as presumed, should be consensual and cooperative. The
federal government supplies 100,000 police officers, 100,000 teachers, and
numberless nannies. Grateful states, cities, and counties employ those
faithful servants, whereupon the feds volunteer to put roofs over their
heads. (A federal school construction bill is pending as this goes to
press. First dibs on the cash will go to the twenty-three elementary
schools that somehow missed out on a presidential aspirant's recital of The
Very Hungry Caterpillar.) The parties' and the presidential candidates'
programs on environmental protection, education, welfare, and crime
prevention all rest on the common ground of cooperative federalism:
Let the feds provide money and standards ("tough standards," when it
comes to education). Let states, cities, and school boards experiment and
implement.
Yes, the politicians disagree on funding levels and the stringency
of federal grant conditions. Cooperative federalism's devil, however, is
not in its details but in its design and dynamics. Cooperative federalism
in whatever shape or form undermines political transparency and
accountability, diminishes policy competition, and erodes self-government
and liberty. It is a perversion, not an extension, of the constitutional
scheme and its institutional logic.
For reasons to be explained, it is not altogether clear what and how
much can be done to replace government cooperation with competition. A
necessary first step, though, is to crack the consensus on cooperative
federalism and to make sober citizens wretch at the thought. We begin that
task in Germany-a country that, though traditionally proud of its
cooperative federalism, is now conducting a vigorous debate about its
defects.
Federalism, German-Style
Germany is not a happy country these days. Its political leaders
and opinion elites lament the country's lagging economic performance, as
measured by anemic growth rates and sustained high unemployment. Despite a
general consensus that the source of Germany's economic malaise lies in
punitive taxes and in labor and welfare laws that have made German labor
the
most expensive in the world, those regimes seem immune to reform. The high
of reunification was followed by recriminations and regrets over the
exorbitant costs. Even without a Robert Putnam to ring the alarm over
Fussball Allein, the Germans worry greatly over civic disaffection
[Politikverdrossenheit], which finds expression in voter disengagement and,
more troubling, in growing support for radical parties, left and right.
Germany's grumpiness is nothing new, good cheer never having been a
hallmark of her politics. What is new and noteworthy is that academics,
opinion leaders, and politicians have come to tag an
