The lines between national politics and state or local politics, always blurred and squiggled, continue to evaporate. Just look at the recent “blue wave” midterm elections, in which a fierce backlash to Donald Trump carried hundreds of Democrats into state and local offices. In Texas, for example, the wave transformed courts across the state and swept a 27-year old political rookie into office as the chief executive of the nation’s third-most-populous county. All politics is at least a little bit national now. Many scholars have noted the serious implications of this trend for federalism, describing how local politics are increasingly enlisted and subsumed into national political conflicts.
But scholars have generally failed to realize that the injection of national politics into subnational government—especially local government—can benefit local government, too. By pushing local governments to reevaluate their policies and practices according to a new yardstick, nationalization can be a generative, disruptive force. Moreover, by pushing voters to look at their local governments in an ideological light, nationalization can replace a self-interested politics centered around property values and service provision with a politics that pays heed to voters’ higher moral commitments.
A recent debate on the Harvard Law Review Blog between David Schleicher and Jessica Bulman-Pozen, two of the most acute observers of the nationalization of state and local politics, illustrates the state of current thinking. In short, Bulman-Pozen lauds the benefits of this trend for national governance, while Schleicher bemoans its effect on subnational governance.
Bulman-Pozen’s work, laid out most fully in her article “Partisan Federalism,” explores how when states behave as national partisan actors, those states can better serve as checks-and-balances (especially given Congress’s dereliction of that duty against co-partisan presidents) and ideological laboratories-of-democracy, testing out ideas and programs before they go national. These arguments fit neatly into what Heather Gerken has called “Federalism as the New Nationalism.” In contrast, Schleicher argues that by turning local elections into “second-order elections” that mostly reflect national partisan allegiances, state politics atrophies. Building on his article “Federalism and State Democracy,” he shows how lines of accountability are destroyed and important local and state policy debates are ignored in favor of often-irrelevant national issues.
Reading Bulman-Pozen and Schleicher together, one can see the nationalization of politics as a simple trade-off. As states and voters alike turn their attention to national issues, the debate over those national issues benefits; as they ignore distinctively state/local issues, those debates languish. State/local politics’ loss is national politics’ gain. For those of us inclined to value local government, this is a grim vision of federalism, one in which subnational governments sacrifice their own functioning to prop up our ailing national political system. It’s no wonder that Schleicher, at least, wants to reshape our current system of federalism, through tools as varied as election law and state administrative law.
But both Bulman-Pozen and Schleicher miss the important ways that “partisan federalism” can fix some of the worst pathologies of subnational governments, and local governments in particular. Though each is persuasive about the specific costs and benefits they identify, their dialogue leaves out an important additional, sometimes-countervailing effect of the nationalization of state and local politics. The nationalization of local politics can be used to overcome two of the deepest dysfunctions of local government: its intense bias towards the status quo and its domination by homeowners laser-focused on the preservation of property values. This is a force to be harnessed by local governments, not always feared.
As illustrations, start with two examples from New York City (though both have analogues elsewhere): basement apartments and bike lanes. Both are, on their face, purely local issues. But both have been reshaped—for the better—by the intervention of national politics into the local.
In New York City, many immigrant families live in illegally converted basements or cellars. With less access to public and subsidized housing, immigrants have been forced to turn to crowding and subdividing property instead. As John Mangin has described, an estimated three-quarters of all housing growth in the borough of Queens has come from illegal conversions, with the tactic particularly common in that borough’s Bangladeshi, Indian, and Indo-Guyanese communities. Accordingly, advocates for these communities have long pushed to legalize, or otherwise support, this “housing underground.” Local politics, however, were not kind to these efforts. Politicians—many less-than-responsive to a non-voting, non-citizen population—saw basement units as a nuisance, not a desperately needed source of housing for a vulnerable population. This was a classic local question, involving land use and building codes and conflicts between new residents and incumbent homeowners. And for years, it had a classic local resolution, with those same, well-established homeowners deciding the outcome.
But recently, that dynamic has changed. In the wake of Donald Trump’s election, protecting immigrant communities has soared to the top of the progressive agenda. At times, that includes more direct confrontations with the federal government on core immigration policy questions—this is the dynamic Bulman-Pozen describes. But in New York City and elsewhere, advocates in and outside city government have also seized on the new national political environment to promote reforms of long-standing city policies (another great example: after Trump was elected, Los Angeles rushed to legalize street vending). Local governments have only so many tools to stop family separations, or to assist refugees barred from the country by the Muslim ban, or to prevent ICE from arresting long-time, law-abiding residents. Progressive leaders who want to be seen as resisting Trump’s immigration agenda have a new incentive to embrace those methods of helping immigrants that are fully within their control. Thus, the New York City Mayor’s Office of Immigrant Affairs, for example, has identified the illegal basement apartment issue as a core concern for the communities they represent. And in 2018, led by the City Council (including Council Member Rafael Espinal, who has similarly identified prohibitions on electric bikes and scooters as indirectly discriminating against immigrant populations) the City finally announced a pilot program for the legalization of basement apartments.
Here, the nationalization of local politics didn’t divert local government from its core duties. Rather, it reinvigorated local government in its pursuit of those duties. Basement apartments shifted from being seen primarily at the neighborhood scale as a quality-of-life concern about overcrowded schools and scarce parking to being seen through a national lens as a piece of the pro-immigrant agenda. The old, purely local concerns didn’t disappear (and conversely, it would be incorrect to give all the credit to immigration advocates), but a different, more ideological perspective was elevated in the conversation.
Or take the rethinking of city streets across the country. For decades, most American cities managed their street grids on something approaching auto-pilot, with heavy emphasis on moving automobiles quickly and a heavier emphasis on preserving the status quo. Transportation departments were supposed to efficiently manage an enormous inventory of asphalt and bridges and signs and streetlights, not to innovate or reimagine mobility. But starting in the mid-2000s, cities across the country have been experimenting with bike lanes, bus lanes, pedestrian infrastructure, and other reallocations of space. What enabled them to begin treating transportation as a meaningful policy lever? In large part, the national environmental movement.
As with immigration, environmental policy is primarily entrusted to the federal government (although through a far more cooperative and federalist framework). But in 2007, cities across the country decided they needed to take action. That year, the international community sounded a definitive and urgent warning about the threats of climate change and the Supreme Court decided Massachusetts v. EPA, forcing a recalcitrant Bush Administration to consider regulating greenhouse gas emissions under the Clean Air Act. It seemed that the federal government had abdicated its responsibility to protect the planet, and that states and local governments would have to do it on their own. Again, this sometimes took the form of direct regulation of greenhouse gas emissions by the states—Bulman-Pozen’s story. But in New York City, the City’s reinvigorated approach to transportation was rolled out in 2007 in PlaNYC, the Bloomberg Administration’s major comprehensive environmental plan. The same year, Boston, which at the time had just 60 yards of bike lanes citywide, launched a major effort to increase cycling—and issued an aggressive new climate action plan. In these cities, and others across the country, a national political moment inspired cities to reevaluate their local programs. There were still plenty of block-by-block squabbles about lost parking spaces, but spurred on by environmental demands, cities transformed their approach to transportation. Notably, this rethinking was a success even putting aside all environmental concerns: with a fresh set of eyes, cities were able to design streets that were safer and more efficient as well. National issues weren’t a distraction from local government’s real work: they were a call to action.
What both these cases show is that local government can benefit from the subordinate status of local politics. Indeed, the nationalization of local politics can fix precisely the biggest problems with local politics. Local government can be exciting, nimble, innovative, and progressive, but it isn’t always. Local governments are, more than other levels of government, service providers. This status brings with it certain challenges. First, local governments must establish large bureaucracies to repave the roads, take out the trash, and inspect buildings. Those bureaucracies are big ships, slow to turn. They impart an essential conservatism to local government: policy changes can’t just be written into laws, they have to be painstakingly implemented at street level by agencies already struggling to perform their most basic obligations, with residents ready to revolt if, for example, the streets go unplowed. Under such conditions, the status quo is always an appealing option.
Second, the importance of service provision renders local politics uniquely focused on the narrow self-interest of voters. Local governments must worry about Tiebout-mobile residents voting with their feet for lower taxes or different service mixes, and, per William Fischel, their politics are classically dominated by “homevoters” concerned with how public policy will be capitalized into their home prices. Politics is converted into dollars and cents. The result (as anyone who’s been to a community meeting can attest): local politics is not always dominated by people’s better angels.
The intervention of national politics can be used to solve both of these problems with local politics. It’s difficult for local bureaucracies to generate change internally, but national politics can provide an external spur. And national politics, which are organized around polarized, ideological lines, can force cities and voters alike to evaluate a proposal based on abstract principle, not NIMBYish fears. Particularly for progressives, who want local politics to be about more than the provision of public goods and the prevention of nuisance, these are critical interventions. The crisp ideological imperatives of national politics can be the antidote for what ails local politics.
This dynamic is hardly universal (and may not exist to the same degree at the state level). No appeal to national politics—whether based in civil rights, environmentalism, or immigrant rights on the left, or in markets and property rights on the right—has yet been found which can consistently and effectively convince suburbanites to happily accept dense or affordable housing in their neighborhoods. And there are countless local governments that have chased an issue so purely national that there is no possibility of any local benefit: take Cambridge, Massachusetts’ 2017 resolution requesting that the then-Republican House of Representatives investigate whether to impeach Donald Trump, for example. I do not mean to suggest that local governments should always make national politics their guide. Nor is it clear that second-order politics are even a net positive for local government: Schleicher’s arguments to the contrary are forceful, especially with respect to electoral politics, where he focuses, as opposed to politicians’ behavior in office.
Rather, the nationalization of local politics is best seen as presenting an opportunity. Skilled politicians can invoke national politics to cut through institutional inertia and build new political coalitions; they can enlist outside advocates to think differently about “the way it’s always been done”; and they can do so while not forgetting that, at the end of the day, they still run a city or a county. Doing so is (and this is an awkward concept for lawyers, who are trained to think in terms of rules and structures) a matter of leadership.
At the core of the dispute between Bulman-Pozen and Schleicher is a disagreement about the domains of state and local power. Schleicher sees states and local governments as tasked with handling distinct, fully-independent issues, from infrastructure and land use to tort and contract law. Bulman-Pozen, in contrast, sees an extensive overlap between subnational and national concerns, with states actively, and necessarily, engaged in setting policy on issues from healthcare to immigration and the environment. I see this as a false dichotomy. Regardless of how separate local, state, and federal policies are (and here, both Bulman-Pozen and Schleicher probably overstate their case), they can be made to speak to each other.
In a world of second-order elections and partisan federalism, therefore, successful subnational leaders must be translators, transforming ideas from one policy language into another. National political allegiances and agendas may dominate—local governments may no longer be able to follow Fiorello LaGuardia’s mantra that there is no Republican or Democratic way to clean the streets—but local governments can recast those agendas into an entirely new, and genuinely local, form. Local leaders’ ability to do so may be the key to ensuring that local governments shed their worst qualities and can be the innovative and effective forces that, at their best, they aspire to be.
The views expressed herein are entirely the author’s own and not those of the New York City Law Department.