States have the capacity to serve as laboratories of democracy and try out “economic practices and institutions to meet changing social and economic needs,” U.S. Supreme Court Justice Louis Brandeis wrote in a famous dissenting opinion 81 years ago. During the first quarter of 2013, these state laboratories were experimenting avidly in all directions.
Several states, led by Arkansas and North Dakota, have imposed strict restrictions likely to provoke a new round of legal challenges to Roe v. Wade, the 1973 U.S. Supreme Court decision establishing a woman’s right to an abortion. Other states are discussing overhaul of their tax systems to attract investment; Ohio has privatized its economic-development agency with this goal in mind. Maryland and Wyoming are raising gas taxes and Virginia is changing its gas-tax system to shift funds to road construction and other transportation needs. Still other states are dealing with the challenges of the strange new world of unmanned aircraft, better known as drones.
There are several reasons for the rash of experimentation, the foremost of which is that states are in better financial condition than at any time since the onset of the Great Recession. After 13 consecutive quarters of increased revenue most states are near the budget levels of 2007, adjusted for inflation. Their increased fiscal health has freed them to take creative actions instead of pinching pennies.
In addition, lawmakers want to make up for lagging federal efforts in reforming education and rebuilding infrastructure. “The states are giving America’s schools their biggest overhaul in living memory,” The Economist recently editorialized. It noted that 45 states are developing new curriculums and that “schools and teachers are at last being held accountable for results.”
Infrastructure deficiencies were cited both by Democratic Gov. Martin O’Malley in Maryland and Republican Gov. Bob McDonnell in Virginia as they took different approaches toward a common goal of providing more money for building roads. McDonnell won bipartisan approval of complex legislation that converts Virginia’s gas tax to a 3.5 percent tax on the wholesale fuel price from a conventional pennies-per-gallon formula. By taking a percentage rather than a flat fee, the levy will rise with inflation, freeing up $3.5 billion for new projects. He claims the bill will lower gas prices at the pump; his critics dispute this prediction.
No one disputes that gas prices will rise in Maryland under a bill O’Malley signed last July that imposes a sales tax on gasoline in three stages, reaching 20 cents a gallon by 2016. Gas prices also will go up in Wyoming, as thoroughly Republican as Maryland is Democratic, under a bill signed in February by GOP Gov. Matt Mead. The measure boosts the state gasoline tax 10 cents a gallon to avoid dipping into the general fund for road construction and repairs.
States and local governments may have more running room than the federal government for making difficult political decisions on taxes and other issues because they are more popular with voters. In a national survey released on April 15, the Pew Research Center found that 63 percent of respondents expressed a favorable opinion of local government and that 57 percent did so of state government. In contrast, only 28 percent of voters viewed the federal government favorably.
Finally, state experimentation is a continuing byproduct of the rightward turn taken by many states after Republicans won big in the 2010 legislative elections. These victories were cemented the following year with redistrictings based on the decennial census, enabling the GOP in 2012 to retain statehouse control in a majority of states even as President Barack Obama won re-election. There are now 23 states with a Republican governor and GOP majorities in both chambers. In addition, Republicans hold practical control in Virginia where the two parties are tied in the state Senate, but a GOP lieutenant governor holds the tie-breaking vote.
Many of these “red” states have pushed a conservative agenda on social issues, especially abortion. In the past six weeks five states — Alabama, Arkansas, Kansas, North Dakota and Virginia — have adopted restrictive abortion laws. The most far-reaching is a package of three anti-abortion measures signed into law by Republican Gov. Jack Dalrymple of North Dakota after being passed by that state’s GOP-controlled Legislature.
One of the North Dakota measures forbids abortion once a fetal heartbeat is “detectable,” which can be as early as six weeks into a pregnancy. In signing the bill into law, Dalrymple hinted it might be found unconstitutional.
“Although the likelihood of this measure surviving a court challenge remains in question, this bill is nevertheless a legitimate attempt by a state legislature to discover the boundaries of Roe v. Wade,” he said in a statement.
The Arkansas law limits abortions to the first 12 weeks of pregnancy. Three new Kansas laws say that life begins at conception, bar tax breaks for abortion providers and prohibit abortion based on sex selection. Alabama and Virginia have raised safety requirements for abortion clinics that Planned Parenthood, which supports abortions, says some clinics will find difficult to meet. All these laws face potential legal challenges.
Although North Dakota seeks a return to the past on abortion, the state may have a foothold on the future when it comes to the use of unmanned aircraft. The University of North Dakota is the first to offer a degree in unmanned aviation, and businesses in Grand Forks expect a boom in these remote-controlled drones to monitor everything from crop-devouring insects to criminal suspects. Chris Anderson, who owns a lobbyist website devoted to drones, has predicted: “The sky’s going to be dark with these things.”
Perhaps, but states and cities are of two minds about drones, which are often associated in the public mind with U.S. killings of targeted terrorist suspects (and sometimes civilians) in Pakistan and other world danger spots.
Civil libertarians on both the right and left worry that unmanned aircraft can violate privacy rights. Virginia in February approved a two-year moratorium on drone aircraft; Idaho this month passed a stricter law prohibiting use of drones to spy on anyone without written consent. State Sen. Chuck Winder, R-Boise, author of the measure, said it was an attempt to “prevent high-tech window peeping.”
California may also be getting into the act, albeit more cautiously. The Senate Judiciary Committee has approved a bill establishing civil and criminal penalties for drone operators who violate privacy rights. Sen. Alex Padilla, D-Pacoima, the bill’s author, acknowledges, however, that there are legitimate uses for drones, which the Federal Aviation Administration estimates could exceed 10,000 by 2020.
For many states the goal of becoming one of six federally designated sites for testing unmanned aircraft transcends worries about privacy intrusions. Fifty groups in 37 states have with state encouragement applied for these designations, hoping they will generate jobs from a growing industry. Most of these groups avoid the word “drone,” which they consider pejorative, and say that privacy concerns have been overstated.
“Corn doesn’t care” about unmanned aircraft, said Kyle Snyder, director of the NextGen Air Transportation Center at North Carolina State University, which has been testing in airspace over crops. The FAA, which has been overseeing the testing, nonetheless says that existing privacy laws have been observed in North Carolina and other states.
It’s too early to know if unmanned aircraft are the wave of the future or a passing fad. It may also be premature to assess the results of state experimentation in education or changes in the tax structure or to predict if new state abortion laws will survive examination by the U.S. Supreme Court.
Whatever happens, states are demonstrating in 2013 that they have significant roles to play in governance, in the process demonstrating the foresight of Justice Brandeis. “It is one of the happy incidents of the federal system,” he wrote in his 1932 opinion, “that a single courageous state may, if its citizens choose, serve as a laboratory and try novel social and economic experiences without risk to the rest of the country.”
— Lou Cannon, a Summerland resident, is a longtime national political writer and acclaimed presidential biographer. His most recent book — co-authored with his son, Carl — is Reagan’s Disciple: George W. Bush’s Troubled Quest for a Presidential Legacy. Cannon also is an editorial adviser to State Net Capitol Journal, which published this column originally. Click here to read previous columns. The opinions expressed are his own.