The American Prospect #341: The Cold Civil War

The Cold Civil War

Red and blue states are locked in a power struggle. How will it end?

The Cold Civil War

04 Introduction By David Dayen

06 The Chasm Between Oklahoma and Connecticut

Stark differences color red- and blue-state lawmakers’ policy choices—which makes all the difference in residents’ well-being. By Kalena Thomhave

12 Texas Will Mess With You

The state is a national incubator for bad ideas, which it then seeks to project across the nation. By Christopher Hooks

18 Red-State Abortion Tactics Push Into Deep-Blue Illinois

How pro-choice advocates in two cities moved to take on anti-abortion lawmakers By Emma Janssen

24 Breaking the Public Schools

Red states are enacting universal education vouchers, threatening budget calamity and potentially degrading student achievement. By Jennifer C. Berkshire

30 The Political Violence Spilling Out of Red States

Red America is imposing its vision on the rest of the country through intimidation, and in some cases even more. By Jon D. Michaels and David L. Noll

36 America’s  Judicial Divisions

Every major policy issue is now also a courtroom battle, decided in increasingly partisan settings. And there’s no end in sight. By Hassan Ali Kanu

44 Falling Into Climate Disaster

Red and blue states look past each other on issues like carbon emissions, power generation. By Gabrielle Gurley

48 The Truth About the Parties and Labor

You need only look at the state level to understand who supports workers and who doesn’t. By Sharon Block and Benjamin Sachs

52 Leveraging the Money Power

Progressive state and city officials are pushing back against the right’s war on “woke capitalism.” They could be doing even more with trillions of dollars in pension funds. By Robert Kuttner

58 Playing Hardball

Rebalancing conflicts over state policy will require that blue states wield power differently. By Arkadi Gerney and Sarah Knight

63 Housing Blues By Rachael Dziaba

64 Parting Shot: An interview with Keith Ellison, Minnesota’s attorney general

Cover and interior illustrations by Alex Nabaum

Why am I getting this magazine now? Didn’t I just get one? These are among the questions you probably had when you saw this magazine in your mailbox. Here’s the answer.

The United States has a bad case of presidentialism. There’s a formal meaning of that term, describing the form of government with an elected leader of the executive branch that is separate from the legislature. There’s a more exaggerated meaning of that term, which refers to the way the media and most of the public treats the president as the government itself, and treats all things that happen in the country as referenda on the president’s ability. And there is a third meaning of the term that I put to you now, which is the mass forgetting many of us political observers have about the 50 state governments across the country that have tremendous power to shape the lives of their citizens. We may have a national legislature, but your experience with the government, with the economy, with the education and health care systems, with the quality of the air you breathe and the water you drink, and over the last couple of years, with the autonomy you have over your own body, has a lot to do with the state in which you live.

Too often this gets disregarded, especially during a presidential election when billions of dollars are spent on national politics. Only 11 of the 50 states have gubernatorial elections in presidential election years, with the vast majority of the rest, including nearly all such elections in the major swing states, happening in the lower-turnout midterms. And state legislatures are generally overlooked in the best of times. Local news deserts have grown, bringing even less attention to a transformation in how the states are wielding their power.

This special issue of the magazine tries to return some focus. The general thesis of this issue is that state policy has diverged, becoming more rigidly differentiated between red and blue. More than that, states are no longer content to see their policy stop at their borders. You will read explanations for why this is happening and examples across a number of issue areas, but I think the untold story is about the consequences for personal health, economic well-being, and even life expectancy. If your state government is taking years off your life, you’d think that would be a bigger story!

We also in this issue track the novel tactics states are using to force adoption of their policy preferences. And this is an asymmetrical game, with conservatives using these tactics far more than their liberal counterparts. While the tactics may shift depending on who wins the presidential election, the dynamic is unlikely to change. But we include prescriptions for blue-state governments to better address this aggression, through tactics that could counteract it.

I want to thank GABRIELLE GURLEY for being my co-lead editor on this project. At the Prospect, we believe in elevating critical issues that sit just off the radar screen, and we can’t think of a more important one than what’s happening at the state level. I hope you enjoy it. —David Dayen

EXECUTIVE EDITOR DAVID DAYEN

FOUNDING CO-EDITORS

ROBERT KUTTNER, PAUL STARR

CO-FOUNDER ROBERT B. REICH

EDITOR AT LARGE HAROLD MEYERSON

EXECUTIVE EDITOR David Dayen

SENIOR EDITOR GABRIELLE GURLEY

MANAGING EDITOR RYAN COOPER

FOUNDING CO-EDITORS Robert Kuttner, Paul Starr

ART DIRECTOR JANDOS ROTHSTEIN

CO-FOUNDER Robert B. Reich

ASSOCIATE EDITOR SUSANNA BEISER

EDITOR AT LARGE Harold Meyerson

STAFF WRITER HASSAN KANU

SENIOR EDITOR Gabrielle Gurley

MANAGING EDITOR Ryan Cooper

WRITING FELLOWS JANIE EKERE, LUKE GOLDSTEIN, EMMA JANSSEN

ART DIRECTOR Jandos Rothstein

INTERNS RACHAEL DZIABA, YUNIOR RIVAS GARCIA, K SLADE, MACY STACHER

ASSOCIATE EDITOR Susanna Beiser

STAFF WRITER Hassan Kanu

WRITING FELLOW Luke Goldstein

INTERNS Thomas Balmat, Lia Chien, Gerard Edic, Katie Farthing

CONTRIBUTING EDITORS AUSTIN AHLMAN, MARCIA ANGELL, GABRIEL ARANA, DAVID BACON, JAMELLE BOUIE, JONATHAN COHN, ANN CRITTENDEN, GARRETT EPPS, JEFF FAUX, FRANCESCA FIORENTINI, MICHELLE GOLDBERG, GERSHOM GORENBERG, E.J. GRAFF, JONATHAN GUYER, BOB HERBERT, ARLIE HOCHSCHILD, CHRISTOPHER JENCKS, JOHN B. JUDIS, RANDALL KENNEDY, BOB MOSER, KAREN PAGET, SARAH POSNER, JEDEDIAH PURDY, ROBERT D. PUTNAM, RICHARD ROTHSTEIN, ADELE M. STAN, DEBORAH A. STONE, MAUREEN TKACIK, MICHAEL TOMASKY, PAUL WALDMAN, SAM WANG, WILLIAM JULIUS WILSON, MATTHEW YGLESIAS, JULIAN ZELIZER

PUBLISHER MITCHELL GRUMMON

PUBLIC RELATIONS SPECIALIST

TISYA MAVURAM

CONTRIBUTING EDITORS Austin Ahlman, Marcia Angell, Gabriel Arana, David Bacon, Jamelle Bouie, Jonathan Cohn, Ann Crittenden, Garrett Epps, Jeff Faux, Francesca Fiorentini, Michelle Goldberg, Gershom Gorenberg, E.J. Graff, Jonathan Guyer, Bob Herbert, Arlie Hochschild, Christopher Jencks, John B. Judis, Randall Kennedy, Bob Moser, Karen Paget, Sarah Posner, Jedediah Purdy, Robert D. Putnam, Richard Rothstein, Adele M. Stan, Deborah A. Stone, Maureen Tkacik, Michael Tomasky, Paul Waldman, Sam Wang, William Julius Wilson, Matthew Yglesias, Julian Zelizer

ADMINISTRATIVE COORDINATOR

PUBLISHER Ellen J. Meany

LAUREN PFEIL

PUBLIC RELATIONS SPECIALIST Tisya Mavuram

Thank You, Reader, for Your Support!

BOARD OF DIRECTORS DAVID DAYEN, REBECCA DIXON, SHANTI FRY, STANLEY B. GREENBERG, MITCHELL GRUMMON, JACOB S. HACKER, AMY HANAUER, JONATHAN HART, DERRICK JACKSON, RANDALL KENNEDY, ROBERT KUTTNER, JAVIER MORILLO, MILES RAPOPORT, JANET SHENK, ADELE SIMMONS, GANESH SITARAMAN, PAUL STARR, MICHAEL STERN, VALERIE WILSON

ADMINISTRATIVE COORDINATOR Lauren Pfeil

BOARD OF DIRECTORS David Dayen, Rebecca Dixon, Shanti Fry, Stanley B. Greenberg, Jacob S. Hacker, Amy Hanauer, Jonathan Hart, Derrick Jackson, Randall Kennedy, Robert Kuttner, Ellen J. Meany, Javier Morillo, Miles Rapoport, Janet Shenk, Adele Simmons, Ganesh Sitaraman, Paul Starr, Michael Stern, Valerie Wilson

PRINT SUBSCRIPTION RATES $60 (U.S. ONLY) $72 (CANADA AND OTHER INTERNATIONAL)

PRINT SUBSCRIPTION RATES $60 (U.S. ONLY) $72 (CANADA AND OTHER INTERNATIONAL)

Every digital membership level includes the option to receive our print magazine by mail, or a renewal of your current print subscription. Plus, you’ll have your choice of newsletters, discounts on Prospect merchandise, access to Prospect events, and much more. Find out more at prospect.org/membership Update Your Current Print Subscription prospect.org/my-TAP

You may log in to your account to renew, or for a change of address, to give a gift or purchase back issues, or to manage your payments. You will need your account number and zip-code from the label:

CUSTOMER SERVICE 202-776-0730 OR INFO@PROSPECT.ORG MEMBERSHIPS PROSPECT.ORG/ MEMBERSHIP

CUSTOMER SERVICE 202-776-0730 OR info@prospect.org

MEMBERSHIPS prospect.org/membership

REPRINTS prospect.org/permissions

REPRINTS PROSPECT.ORG/PERMISSIONS

VOL. 35, NO. 6. The American Prospect (ISSN 1049 -7285) Published bimonthly by American Prospect, Inc., 1225 Eye Street NW, Suite 600, Washington, D.C. 20005. Periodicals postage paid at Washington, D.C., and additional mailing offices. Copyright ©2024 by American Prospect, Inc. All rights reserved. No part of this periodical may be reproduced without consent. The American Prospect® is a registered trademark of American Prospect, Inc. POSTMASTER: Please send address changes to American Prospect, 1225 Eye St. NW, Ste. 600, Washington, D.C. 20005. PRINTED IN THE U.S.A.

Vol. 35, No. 3. The American Prospect (ISSN 1049 -7285) Published bimonthly by American Prospect, Inc., 1225 Eye Street NW, Suite 600, Washington, D.C. 20005. Periodicals postage paid at Washington, D.C., and additional mailing offices. Copyright ©2024 by American Prospect, Inc. All rights reserved. No part of this periodical may be reproduced without consent. The American Prospect ® is a registered trademark of American Prospect, Inc. POSTMASTER: Please send address changes to American Prospect, 1225 Eye St. NW, Ste. 600, Washington, D.C. 20005. PRINTED IN THE U.S.A.

ACCOUNT NUMBER ZIP-CODE

EXPIRATION DATE & MEMBER LEVEL, IF APPLICABLE

To renew your subscription by mail, please send your mailing address along with a check or money order for $60 (U.S. only) or $72 (Canada and other international) to: The American Prospect

1225 Eye Street NW, Suite 600, Washington, D.C. 20005 info@prospect.org | 1-202-776-0730

The Cold Civil

States have always diverged on policies, but it’s grown more intense. And for red states, that’s not enough.

By David Dayen

Deep into the grimmest months of the COVID -19 pandemic, Medicaid officials devised a stopgap plan that proved to be one of the federal government’s most consequential decisions. To slow the spread of the deadly and contagious disease and ease up on paperwork during the public-health emergency, the feds ordered states to maintain coverage for Medicaid recipients. As a result, Medicaid rolls grew by over 23 million beneficiaries during this period, swelling to around 95 million Americans.

But in March 2023, with the virus more or less contained, Medicaid eliminated this “continuous enrollment” provision. States could manage their Medicaid rolls any way they saw fit. And the results of this experiment were revealing.

Net Medicaid enrollment across the country has fallen by 14.1 million since last March, compromising the health of millions of very poor people. At one end of the spectrum, Montana, Utah, Idaho, Oklahoma, Texas, and South Dakota each shed at least half of their enrollees who were on Medicaid when continuous enrollment was in effect. At the other, North Carolina, Oregon, Maine, California, Connecticut, and Illinois each have disenrolled 20 percent or less. (North Carolina is an outlier, because it expanded Medicaid when this all started last year.)

Florida cut short postpartum care for poor mothers due to a “computer error”; Arkansas dropped 427,000 recipients in the first six months, often for procedural reasons like not returning a renewal form. South Dakota, Montana, and Idaho led ten states that “disenrolled so many children in 2023 that they had fewer children enrolled at the end of the year than prior to the pandemic,” according to Georgetown University.

As one consumer advocate told NPR , “We have seen some amazing coverage expan-

sion in places like Oregon and California. But if you live in Texas, Florida, and Georgia, since the pandemic your health coverage has been disrupted in ways that were preventable by state leaders.”

By now you may have figured out the pattern. In the vast majority of cases, states controlled by Republicans moved quickly to cull the Medicaid rolls, and states controlled by Democrats kept them on much longer. And this holds across nearly every policy area. Red states have the most oppressive abortion restrictions; blue states have more realistic reproductive policies. If you can carry a concealed weapon without a permit, you are likely in a Republican state; if you need to pass a background check to purchase a firearm, you are in a Democratic state. Republican states have the weakest LGBTQ+ protections; Democratic states have the strongest. The 13 states with paid parental leave are all Democratic. Of the 20 states with a $7.25 minimum wage, 15 are Republican trifecta states and three have Republican legislatures.

In 1967 in a speech at Stanford University, Martin Luther King described “two Americas”: One with all the “material necessities for their bodies” and the other “perishing on a lonely island of poverty.” Nearly 60 years later, King perfectly captures the two Americas that we’re dealing with right now, bounded by a geographical reality: The laws that you live under are determined by the policymakers in the state where you live.

From the beginning, America struggled over the institution of slavery, leading to the epic clash between North and South 160 years ago. Partisans have eyed each other warily ever since. The postReconstruction era saw states splitting along the virulent racial, social, and economic prejudices that survived the Civil War. Yet as the

federal government asserted itself during the New Deal, using incentives like highway funding to force standardization, interstate economic variation began to narrow. But a nearly all-white, largely Southern Republican Party took hold only after Ronald Reagan secured the White House, and state policy started diverging wildly once again.

Over the last 30 years, a state government’s partisan orientation is the overwhelming predictor of the policies it will adopt. One University of Chicago study shows that the effects of party control on state policies have doubled since the early 1990s. Divergent ideas and beliefs have always been with us, but divergent outcomes at the state level are new, and growing.

One reason for this is that there are fewer institutional brakes on policy disagreements. In 1980, 26 states split control of the legislature and the governor’s office, and each branch checked the other. But today, only ten states have split control; a whopping 40 states have unitary Republican or Democratic governance. With state lawmakers often responsible for gerrymandering state Senate and House districts beyond recognition, they cement one party’s control well into the future by picking their own voters, even if their overall electorates are closely divided.

A federal government mired in gridlock and dysfunction also has set the stage for partisan disrupters to surge into states. Legislative meddling has become a cottage industry for corporate bill mills like the American Legislative Exchange Council (ALEC), which produces ready-made legislation for conservative lawmakers. While states have long produced models for national policies, encouraging the federal government to catch up to better ways of doing the people’s business, today policy extremism in the states has become an end in itself.

Policy extremism has eroded quality of

Warlife in America. As much as half of the gap between the states in life expectancy is due to geographic variation. A 2023 study found that more liberal policies on tobacco, labor, immigration, civil rights, and the environment correspond to a one-year increase in how long a state’s residents live. (In this special issue, Kalena Thomhave takes a closer look at Oklahoma and Connecticut, which had the same life expectancy in 1959 and a 4.7-year spread as of 2019.)

Of the ten states with the highest rates

obesity levels show this correlation: Ten of the 12 states with the highest percentage of obese residents have Republican trifectas. Where you live, in short, can determine how long you live.

This wide gulf between healthy and ailing America is bad enough. But red states in particular want their policy preferences to be reflected across the nation, and have engaged in numerous aggressive tactics to make that a reality.

Texas and Idaho have enabled private citizens to sue anyone providing assistance to help their residents obtain an abortion, even if another state provides the care. Cities and counties throughout Texas have barred the use of their roads for abortion travel. Texas Gov. Greg Abbott has sent over 120,000 migrants by bus into other states and dumped them there. Red-state attorneys general have issued subpoenas to force health facilities in other states to release information about genderaffirming care sought by their own residents. Anti-ESG laws require businesses and financial institutions to change corporate governance practices in order to operate in red states. Companies and conservative advocates seek out red-state courts with conservative judges to obtain nationwide injunctions on regulatory policies affecting all of us. Red-state lawmakers have even seized the tools that cities use to set their own laws (see Texas and Austin, or Tennessee and Nashville).

of uninsured residents, seven are controlled fully by Republicans. Of the ten with the fewest uninsured, seven are controlled fully by Democrats. The ten worst health systems in the country, according to the Commonwealth Fund, are all in red states. Eight of the ten states with the most COVID-19 deaths are Republican-led; so are ten of the 12 states with the highest rates of smoking-related cancer deaths. Firearm deaths are lower in blue states and higher in red states. Even

Democrats have notched victories in states they control as well, but by and large they have not adopted draconian measures to force other states to accept their ways of operating. Red states, by contrast, aren’t interested in peaceful coexistence; they appear determined to carry on their battle for national political dominance. Just enough terror has been unleashed to signal that the state of the union is not strong. The melting pot threatens to boil over, a once savory recipe spoiled beyond recognition. You can call it a cold civil war.

There needs to be a better, more nuanced understanding of this historical moment. Developments at the state level are too often ignored in the

corridors of power in Washington, where Congress and the executive branch intend to set policy for the whole country. But the likelihood that this push and pull will grow stronger as the years go on forces us to pay attention, regardless of national electoral outcomes. If Donald Trump wins, he has already signaled the willingness to use federal leverage to force changes to bluestate policies, such as withholding funding for vital needs like firefighting. If Kamala Harris wins, conservatives will retreat to their power centers, use partisan courts to their advantage, and continue to develop pernicious strategies to make other states bend to their will.

This special issue of the Prospec t lays out interstate divergence on anti-poverty programs, education, climate and energy, jurisprudence, labor rights, and more. We profile Texas, the intellectual and emotional center of this strategy of policy maximalism and interstate hostility. We look at the ways in which red states aren’t settling for dominion within their own borders, and seek control over others. And we lay out how blue states can fight back against red-state incursions into their policy territory, build power across the country, and advance critical policy objectives that preserve hard-fought rights.

Some may fear that a strategy of calibrated counteraggression could launch the country into a series of damaging reciprocal exchanges, much like the various skirmishes between free and slave states that sparked civil war. But there’s another path that doesn’t signal endless internecine strife, with strategic actions that can also lower the temperature, by proving to conservatives that their adversaries in the blue states will not be run over.

Democracy in the United States depends on state governments to safeguard basic human rights for their citizens no matter what far-flung corner of the nation they find themselves in. The circumstances of our country’s origin and its peculiar constitutional framework opened up vast ideological, political, and cultural divides over what those basic human rights are. Conscientious leaders who believe that federalism, or more likely a reconstructed federalism, is the way forward will need to step in to calm the waters and mediate these seemingly intractable political conflicts. This special issue offers a few road maps to bring the country back from the edge. n

The Chasm Between Oklahoma and Connecticut

Stark differences color red- and blue-state lawmakers’ policy choices—which makes all the difference in residents’ well-being.

By Kalena Thomhave

In a conference room with harsh fluorescent lights, several bins sit on a large table, each one overflowing with returned mail. On the floor, there are even more bins for the staff at Hunger Free Oklahoma in Tulsa to sort through. The organization’s executive assistant sits me down on a sofa outside the conference room and cheerily asks me about myself—Oklahomans like to “visit,” as they say. And with a rueful smile, she apologizes for the “mess” of mail bins that trickle out into the hall. These hundreds of letters spotlight the massive attempt by the statewide commu-

nity group to connect kids who aren’t receiving the free meals that they expect during the school year with the additional funds for food during the summer. Also known as SUN Bucks, the federal Summer EBT program provides benefits to families of children eligible for free or reduced-price school lunches during the summer months. Children receive $120 on electronic benefit transfer (EBT) cards—$40 for each summer month.

In Oklahoma, nearly a quarter of children live in food-insecure households, one of the highest rates in the country. The Annie E. Casey Foundation’s KIDS COUNT,

its annual compilation of child well-being data, ranked Oklahoma 46th in the nation overall—as well as 49th in education and 45th in health.

Yet Oklahoma’s Republican Gov. Kevin Stitt rejected the roughly $48 million of funding for the 2024 Summer EBT program and announced in August the state would also not participate in the program next summer. Oklahoma was one of 13 Republican-led states that declined this year’s summer grocery benefit. “Oklahomans don’t look to the government for answers, we look to our communities,” a spokesperson for the

governor said in a statement regarding the decision to decline the funding, which they referred to as a “handout.”

Halfway across the country, KIDS COUNT ranked Connecticut 8th overall, 3rd in education, and 11th in health. But the state, which also participated in Summer EBT this year, faces a hunger problem as well—more than 15 percent of children live in food-insecure households. In fact, Connecticut was one of the first states in the country to pilot its own program in 2011.

The two states weren’t always such polar opposites. For instance, in 1959, Oklahoma and Connecticut residents had roughly the same life expectancy. But fast-forward 60 years, and the numbers have significantly

diverged. Connecticut now ranks among the top ten states in average lifespan, with an average life expectancy at birth of 80.8 years in 2019. That same year in Oklahoma, the average lifespan at birth was more than four years lower at 76.1 years, among the bottom ten states in life expectancy. The national average life expectancy in 2019 was roughly 79 years.

Gun control policy is another key indicator of life expectancy. But Connecticut has passed background checks, permit policies, and secure storage requirements, while Oklahoma has few gun control laws on the books. In fact, in 2019, the state passed a law allowing open carry without a permit or license in most public places. In 2022,

Oklahoma had the 13th-worst rate of gun violence in the U.S., while Connecticut had the 45th-worst rate.

Jennifer Montez, professor of sociology at Syracuse University, has considered how the polarization of politics and policy contributes to health differences among state populations. Life expectancy in particular may have precipitously declined nationwide in 2015, but it had been stagnating much longer before that. And in the U.S., there are profound differences in residents’ lifespans across place—gaps that have been growing for decades.

In fact, Montez and her research team found that Connecticut passed the most progressive policies between 1970 and 2014,

while Oklahoma passed the most conservative ones. Connecticut has passed a refundable Earned Income Tax Credit, while Oklahoma cut income taxes and refused to expand Medicaid until voters passed a ballot initiative and forced the state to do so. Meanwhile, life expectancy in both states did get better, but in Connecticut it increased by 9.7 years and in Oklahoma it grew by just 5.0 years, as of 2019.

“You have two states that [we]re the same, were pretty middle-of-the-road in terms of life expectancy, but they take opposite trajectories,” says Montez. Some states, she says, took action to “invest in [the state] population’s overall economic well-being and health.” Connecticut is one of them. “And you had other states that took a much more”—she pauses, as if searching for a diplomatic way to describe it—“they took a very different approach.”

As the political parties nationalized, there were only two approaches that most state governments would take. Policies “polarized between and bundled within” states, as Montez has described them, were tied to the governing party’s ideology, creating more homogenous state policy landscapes based on whether a state was led by Democrats or Republicans.

As differences in state policy choices have widened, so have the differences in outcomes among state residents. State government, after all, plunges into the day-to-day minutiae of our lives through decisions about health, education, social services, criminal justice, and more. For example, families in some states get money to keep their kids fed during the summer; in other states, they don’t. Oklahoma leaves it up to communities—and sometimes separate governments—to fill the gaps.

On the Cherokee reservation in northeastern Oklahoma, the Woody Hair Community Center appears suddenly amidst lush trees on a single-lane highway, the building’s sleek new construction juxtaposed against the deep-green foothills of the Ozarks. The $21

million center in tiny Kenwood (population 904) is home to early-childhood facilities, a nutrition center where seniors enjoy lunches, a large softball field, two playgrounds, a rooftop garden, a large gym, and even concession stands.

In the Head Start area, children lie on napping mats; we tiptoe around their sleeping forms to view one of the playgrounds and its shiny, new plastic equipment.

Even the smallest rural community won’t be left behind by the government—the Cherokee Nation government, that is. “These are our people,” says Kim Chuculate, senior director of Cherokee Nation Public Health, her arms extending to gesture around her in the lobby of the center. The community center is meant to “be what it needs to be for the community,” she says, which can be many things at once. For example, while the facility can serve as a basketball court for high school games with concession stands where school clubs can fundraise by selling food, the community center is also outfitted to serve as a tornado shelter. And each night of the week, different sports are offered in the gym—sometimes it’s the popular new game pickleball and sometimes it’s stickball, a traditional Cherokee game.

The bumpy route back to Tahlequah, capital of the Cherokee Nation, includes other hints of the investment taking place

Life Expectancy at Birth

across Cherokee Nation lands. Construction is under way at Tahlequah’s own medical center, a massive campus where a visitor can see Cherokee art—paintings, ceramics, and more—through the windows of most of the buildings. (Building construction rules mandate that 1 percent of every project’s budget goes toward purchasing Cherokee art for display.)

More than 1 in 8 people in Oklahoma are Native American; there are 38 different federally recognized tribes in the state. The U.S. government force-marched the Cherokee and other Southeastern tribes from their homelands to Oklahoma during the ignominious 19th-century period known as the Trail of Tears. This episode set in motion the Native communities’ disproportionate rates of poverty and chronic health issues like diabetes and high blood pressure that many tribal members suffer from today.

Health care, as a result, is a major focus of the Cherokee Nation, which has spent millions constructing hospitals, clinics, and community centers in remote rural areas.

Many of the Oklahoma state government’s own public-health investments pale in comparison to tribal-run hospitals and clinics that are coordinated by tribal governments in the eastern part of Oklahoma. It’s the tribal communities that have stepped up to the challenge of feeding Okla-

As state policy choices widen, so have the differences in state residents’ health outcomes.

homa children in the summer—whether or not they are Native.

With assistance from Hunger Free Oklahoma, the Cherokee and Chickasaw Nations coordinate the federal SUN Bucks program that serves children living within Cherokee, Chickasaw, Choctaw, Muscogee (Creek), and Seminole Nations. Any child on these tribal lands can receive benefits, and as tribal lands are vast and include the state’s second-largest city of Tulsa, roughly 105,000 children were eligible for benefits this summer.

But even though tribal governments are indeed helping to fill the gaps in areas like health care, it’s not their responsibility— nor can it be: Unlike the eastern part of the state, most of western Oklahoma is not tribal land. And usually, only members of federally recognized tribes can use tribalrun facilities. When COVID -19 vaccines were scarce, however, the Cherokee, Chickasaw, Choctaw, Citizen Potawatomi, and Osage Nations provided vaccines to any member of the public.

Meanwhile, dozens of rural hospitals in the state have closed in the past 15 years, and according to a 2024 report, 22 rural hospitals in Oklahoma are at risk of shuttering—roughly a third of those currently operating.

“Sometimes it feels like we’re filling a gap that shouldn’t be there,” says Chief Chuck Hoskin Jr., the principal chief of the Cherokee Nation. The investments across the reservation are “visual evidence that our priorities are [in] health care,” he says, mak-

ing sure someone “is as healthy as they can be before they even step in a hospital.”

Shiloh Kantz, a Cherokee citizen and executive director of the Oklahoma Policy Institute (OK Policy), says that her tribe is “not a business or corporate-centered government, [but instead] we are a peoplecentered nation.” That’s “how we’re doing policy,” she says.

Other tribes have also invested heavily in health care. Darita Huckabee, who was previously a lobbyist for the Indian Nations Council of Governments in Tulsa, is a Choctaw citizen and has fond memories of the treatment her father received in tribal facilities. She describes how he’d get an asthma diagnosis in Denver, but the Chickasaw-run hospital in the small town of Ada, open to any tribal citizen, would administer treatment. It was “the best health care I’ve ever seen,” she says, adding that the tribe’s investments in preventative health care are “going to change our world.”

In 2019, the economic impact of tribal investments in business, health, education, and jobs in Oklahoma was a remarkable $15.6 billion, according to a 2022 Oklahoma City University report.

In contrast to the tribes’ significant investments, many miles and one sovereign government away, Oklahoma City embraced the conservative preference for shifting policy responsibilities from the federal government to the states. Beginning in the 1980s, Washington gradually embarked on devolution—the transfer of governing power to the states as Congress converted program funding to fixed block grants. State lawmakers had greater flexibility: They could either cut services or increase them.

Many states have also controlled city policies by preempting localities, often but not always Democratic cities in Republican states, from passing their own policies, keeping city residents from receiving benefits like paid sick leave, higher minimum wages, or tenant protections. Moreover, today many states prioritize electing parttime, “citizen” lawmakers who have other jobs (and other priorities). Since the lawmakers don’t always have legislative staff to assist with research on these topics— Oklahoma actually has fewer staff than it did in 1979—they rely on industry lobbyists and groups that promote model bills, like the conservative American Legislative Exchange Council (ALEC), that have stepped in to fill those gaps. ALEC, in particular, has

had notable successes in Oklahoma, especially with proposals to cut or ban health care services and other programs.

“We [are] governments moving in two different directions,” says Hoskin, referring to Oklahoma and the Cherokee Nation. “The state of Oklahoma has retreated from the public sphere,” he says, while “[we have] spent the last two decades with our foot on the gas, pouring hundreds of millions of dollars into the public good.”

The state of Connecticut, however, has accelerated its pace of life-changing investments. In recent years, state lawmakers have raised the minimum wage and passed paid family leave policies and a state EITC. Last year, the state started the country’s first Baby Bonds program: Any child covered by Medicaid also receives a $3,200 trust fund at birth, which the state treasurer monitors and invests. When a child reaches adulthood, they can use the funds to buy a house, further their education, save for retirement, or start a business.

“In Connecticut, there’s a sense of civic pride about passing progressive legislation—and trying to be the first state to pass certain legislation,” says Mark Abraham, executive director of DataHaven, a New Haven–based local and state statistics hub.

Indeed, Connecticut was the first state to expand Medicaid after the passage of the Affordable Care Act. It was also the first to pass paid sick leave requirements for private employers. These “bundles” of progressive policies reflect policy choices that are “internally consistent,” says Montez of Syracuse University. “You don’t see Connecticut implementing a generous EITC but not raising the minimum wage.”

Some of this work in Connecticut was inspired directly by the White House. For example, when Connecticut raised the state minimum wage to $10.10 in 2014, that number matched the Obama administration’s recommendation for a minimum-wage hike (and the raise the president gave to federal contract workers).

Policy bundles are also, of course, seen in Oklahoma and other conservative-led states, where legislation championed by groups like ALEC tends to follow other pieces of recommended proposals.

Carly Putnam, an analyst at OK Policy, is more than ready to talk to me about Oklahoma’s policy shortcom-

ings, telling me that her notes for our conversation are nine pages long.

“We have not prioritized investing in state services,” she says bluntly, referring to her state government. “We have repeatedly chosen to disinvest from systems that are proven to help Oklahoma children, families, and communities, and we’re reaping the products of that harvest now.”

The shift is even starker between 2000 and 2024; according to OK Policy, the state’s budget for the 2024 fiscal year is 12 percent smaller than the budget for the 2000 fiscal year, adjusted for population and inflation. As in many Republican states, Oklahoma legislators are quite interested in cutting taxes. During this year’s state legislative session, Republican House Speaker Charles McCall told reporters that “the people of the state of Oklahoma need to get a pay raise through a tax cut,” and that “we need to first address that before we address some other spending matters of the state.”

Darita Huckabee, a retired lobbyist, remembers the “tax-cutting frenzy” the legislature went on beginning in the mid-2000s, with repeated cuts to the state income tax. And because Oklahoma requires a threefourths majority in the legislature for any bill that raises revenue, once a tax is cut, it will be very difficult to reverse those cuts. The goal, she says, was to attract businesses that usually preferred Texas, a supposed competitor. Texas, of course, does not have a state income tax. Moreover, Oklahoma can’t begin to match what Texas, the eighthlargest economy in the world, has to offer.

Still, Oklahoma is tied for the second-lowest corporate income tax rate in the country. Yet for all politicians’ talk of attracting businesses, Oklahoma has instead served as a pawn for tax incentive schemes. When it tried to encourage Panasonic and Tesla to open facilities in the state, Oklahoma offered hundreds of millions in tax subsidies, which likely boosted the offers from Kansas, where Panasonic landed, and Texas, where Tesla ended up. Tulsa, looking to woo Tesla to Oklahoma, even altered a local statue to look like Tesla CEO Elon Musk. “When talking to key members of the team that would need to move … Austin was their top pick to be totally frank,” Musk said—as if he hadn’t known that previously.

Oklahoma has “chosen to prioritize business rather than people, but actually investing in people is what attracts business,” says Kantz of OK Policy.

Though Oklahoma may be trying to diversify its economy with bids for tech and manufacturing workers, the state still largely relies on resource extraction, with oil and gas extraction making up approximately 12 percent of the state’s GDP in 2022. With fossil fuel extraction following a boom-andbust cycle, the state’s revenue—and accompanying state investment—often does too.

Instead of state investment, when transformation does occur in Oklahoma it’s often thanks to generous funding from local organizations. About a decade ago, Oklahoma was regarded as a leader in earlychildhood education, largely championed by nonprofits and philanthropies. Still, in 1998, it was Oklahoma, and not a blue state, that was the first state to implement publicly funded, universal preschool for all four-year-olds.

“We have seen progress here and there,” said David Blatt, director of research and strategic impact at Oklahoma Appleseed, a public-interest law firm. “But the overall feeling is like you’re bailing a leaking boat with a teaspoon.”

Oklahoma’s K-12 education system is not exactly among the country’s innovators. The state has some of the worst rates for per-pupil spending and teacher pay. Its state superintendent of public instruction, Ryan Walters, has focused much of his time on touting his mandate that public schools teach the Bible (even though they seem unlikely to do so). Education funding relies in part on the state’s volatile gross production tax levied on the oil and gas industry. This severance tax is the state’s third-biggest source of revenue after the personal income tax and sales tax.

When Oklahoma does adopt more progressive policies—like Medicaid expansion—it’s often because people have demanded change. In 2020, Oklahoma voters approved a ballot measure to expand Medicaid to low-income adults without children, making an additional 215,000 people eligible for the health insurance program.

Residents are also set to vote on a minimum-wage ballot measure in November. The current minimum wage in Oklahoma matches the federal minimum of $7.25, so any increase could be big for low-wage workers—and judging by the success of previous ballot measures on raising wages, minimum-wage ballot measures are unlikely to lose.

When Oklahoma does adopt more progressive policies like Medicaid expansion, it’s often because people have demanded change.

But the spectacle of voters flexing their direct-democracy muscles unnerves Republicans. State lawmakers have moved to restrict ballot measures. This year, the governor signed two bills that will require ballot initiative sponsors to pay filing fees; one measure also requires that a petition signer include several pieces of information that exactly match their voter data on file, likely making it harder for organizing groups to get issues on the ballot.

Connecticut is not immune from poverty, inequality, and health disparities. The state has one of the most regressive tax systems in the country. According to a 2023 United Way report on cost-of-living indicators, 39 percent of Connecticut residents struggle to afford their basic needs. While Connecticut has the second-highest per capita income in the country, unsurprisingly, it also has some of the highest rates of income inequality and racial segregation.

But health care is one of Connecticut’s bright spots: Just 5.1 percent of the state population is uninsured, making Connecticut one of the best states for health care access in the country, which is reflected in its health outcomes. Still, there are widespread racial disparities in health care: While Connecticut has the lowest infant mortality rate in the country (4.8 deaths

per 1,000 births), its infant mortality rate for Black mothers is more than twice as high—11.7 deaths per 1,000 births.

Oklahoma has opted to rely on “communities” to bridge widening chasms in hunger, health, education, and a host of other social sectors, producing outcomes that are worse across the board, with limited access to health care as well as a shortage of health providers. Kantz, the state health care expert, has a teenage daughter with a rare disease. Since the beginning of the year, she says her daughter has gone through four pediatric neurologists as doctors have left the state.

Her family was originally driving three hours round trip from Tulsa to Oklahoma City to reach one, but now they must drive eight hours round trip to Dallas. Another specialist is a plane ride away in Pittsburgh. Once her daughter graduates from high school, Kantz says, it might be time for her family to leave the state.

The policy differences between states that provide robust services and states that eliminated them, or never offered them in the first place, have impacts that reverberate across people’s lives. Daily existence becomes more difficult than it would be in a place that prioritizes

improving public services and easing residents’ hardships.

The divergence between Connecticut and Oklahoma is an extreme example of what’s occurring across the country as Republican states cut taxes and services and create environments where residents are beholden to the policy whims of corporations, interest groups, and wealthy donors, all who have a vested interest in low taxes and limited social spending. n

Kalena Thomhave is a freelance journalist and researcher based in Pittsburgh. She is a former Prospect writing fellow.

To help lure Tesla to Oklahoma, Tulsa painted the face of CEO Elon Musk on a local statue.

Texas Will Mess With You

The state is a national incubator for bad ideas, which it then seeks to project across the nation.

By Christopher Hooks

Goliad County, Texas, is a pleasant jurisdiction of about 7,000 people nestled in the state’s coastal plain, on an indirect driving route from San Antonio to Corpus Christi. It is generally unremarkable except for its historical sites, which recount centuries of resistance to central, and federal, authority. Goliad exem-

plifies a certain bullheaded tendency that Texans have traditionally cherished above all other qualities.

During the Mexican War of Independence, the opponents of New Spain hid here. When Texans chose to revolt, the Mexican army massacred some 425 prisoners of war here, causing Anglo soldiers to cry Goliad’s name for the rest of the war. After Goliad

voted in favor of secession in 1861, it prospered as a stop on the Cotton Road, by which planters would smuggle their crops to Mexico past that tyrant Abraham Lincoln’s dreaded navy. When the federal army attempted to reconstruct Goliad, the courthouse burned in suspicious circumstances, destroying postwar land deeds. Generations of the state’s schoolchil -

dren have been taken to the site of the massacre, the Presidio La Bahía, and told about the crimes of the Mexican dictator Antonio López de Santa Anna and his centralists. In Texas, it is in the blood: Resistance to tyranny—or bureaucracy, or the White House—is obedience to God, though what party is the tyrant and what

party is the tyrannized is, as always, in the eye of the beholder.

That mindset makes it perhaps a little easier to understand what happened on August 28, 2023, in the Goliad County Courthouse—the one built to replace the building that burned. The County Commissioners Court, the Texas form of a

county council, passed a measure that at first glance resembled the kind of toothless resolution local governments often pass to comment on national issues. “The Goliad County Commissioners’ Court finds that abortion is a murderous act of violence,” the ordinance read. Abortion and abortion-inducing drugs would now

be banned in the unincorporated parts of the county.

Standard stuff. Because by this point abortion had already been banned for more than a year under Texas law, this meant little. But then, in the text, a legal theory emerged that may as well have come from Mars. With immediate effect, the county government created a new offense of “abortion trafficking.” Any individual who assists a pregnant woman in procuring an abortion—a woman who drives her friend, say, from Baltimore to a clinic in Los Angeles, both jurisdictions where abortion is legal— would commit an offense if their route clipped through any of the unincorporated parts of Goliad.

Stranger still was the relief prescribed in the ordinance, which mimicked a novel legal device used by the Texas state legislature in Senate Bill 8, the so-called “abortion bounty” law. “Any person”

other than a member of county government could sue someone who facilitated an abortion in some way connected to the county roads, and potentially receive injunctive relief from the Goliad courts, damages for emotional distress, statutory damages of “not less than $10,000,” and attorney’s fees.

Goliad was the second Texas county to pass such a law, which slowly spread around the state from small counties to larger cities like Lubbock in West Texas. They are questionably constitutional, and difficult to imagine being enforced, and thus may be easy to dismiss. But they’re backed by powerful forces in the state— especially the right-wing legal activist Jonathan Mitchell, who earlier this year began attempting to question women under oath who have had abortions beyond Texas’s borders. The goal is intimidation: to create a patchwork of counties and municipalities

where seeking legal abortions, even outside of Texas, creates legal risk.

And the goal is, in turn, to create pressure on the Republican legislature to act, even beyond what they’ve already done in the name of the right to life. The state of Texas, with its expansive police forces and activist attorney general, would have the actual resources to pursue those who use Texas roads to seek abortions across state lines.

There’s precedent for this. Nearly a third of Texas counties have declared themselves “Second Amendment sanctuaries,” where federal gun regulations the locals perceive to be unconstitutional are declared to have no force of law. A good idea, said state lawmakers. Pressure built, and eventually Gov. Greg Abbott signed the Second Amendment Sanctuary State Act, which barred state agencies and police from assisting in the enforcement of any federal gun control law passed after January 19, 2021.

In January, Gov. Greg Abbott evicted federal Border Patrol from a park in Eagle Pass and fenced it off with concertina wire.

The legislature and elected leadership of Texas, in its infinite wisdom, has taken it upon itself to exert its influence abroad.

But most of all, it’s the legal reasoning in the travel bans that is most worth paying attention to. In a way, Goliad was offering an inversion of the interstate commerce clause, the constitutional provision that gives Congress broad powers to regulate the economy. Because Congress regulates trade between the states and its cities, its regulations must also apply to states and cities. Goliad reasons in reverse. Because it has jurisdiction over short stretches of highway that in turn connect to every road in the nation, Goliad claims a kind of national jurisdiction.

This may seem nonsensical, but it is an increasingly important part of how politics works in Texas. The Lone Star State has been subject to one-party rule since 2003, when Republicans finally took control of the Texas House. For most of the next 20 years—even as the state’s voters drifted slowly back to the Democratic Party—the Republican Party has moved sharply to the right. Texas Republicans have been efficient and unnervingly extreme, leaving little for the GOP to run on come election time.

But because Texas sits at the crossroads of so many nationally contested issues, the same way that the city of Goliad sits at the

crossroads of state highways 59 and 183, the legislature and elected leadership of Texas, in its infinite wisdom, has taken it upon itself to exert its influence abroad. Standing up to tyrannical outsiders, after all, plays well at the ballot box. You may not be interested in messing with Texas, as the saying goes, but Texas will mess with you.

Texas leaders and lawmakers have taken so many aggressive actions against other governments and private citizens in other states in the last five years that it is difficult to organize them into coherent categories. They run the gamut from the silly and venal to the deadly serious.

With increasing regularity, Texas is launching direct challenges to the constitutional order. This January, Abbott ordered state troops and police to seize control of Shelby Park in the border town of Eagle Pass. He evicted the federal Border Patrol from the park, which contained the one usable boat ramp in the area. He fenced off the park with concertina wire and dared President Biden to send in his own troops. The Biden administration sued, and the Supreme Court ordered that federal officials could cut the wire, but Texas refused to let them in. (Amid this posturing, at least three migrants drowned in the Rio Grande.) The crisis only abated when the Mexican government began applying heavy coercive pressure to steer migrants away from Eagle Pass. In a sense, Abbott’s brinkmanship worked—though he would surely have preferred to extend the crisis.

On the other hand, you have cases like state Attorney General Ken Paxton’s 2020 crusade against the Gunnison County, Colorado, Department of Health and Human Services. In the early days of the pandemic, Gunnison tried to kick out nonresidents who were potentially bringing COVID to its many vacation homes. This included Robert McCarter, a Dallas businessman who owned a lake house in the county and had given Paxton more than $250,000 in campaign donations. Paxton’s office leapt into action, demanding a change of course and threatening to bring the state’s full might to the Rockies—until the county gave McCarter a waiver and allowed him to stay.

In between challenging long-standing federal immigration law and the health system of a county with a population of around 17,000 runs the full spectrum of

Texas-sized hostility. Many of the most successful bids to exert the state’s will on others have come from the governor’s office. Abbott has access to substantial discretionary funds and men with guns. He proved in Eagle Pass he could convert those two resources into political capital. Defying the federal government was only the first step. The Department of Public Safety, which administers the state police, was run by a longtime Abbott crony: It maintained a public relations division that was effectively an arm of the Abbott campaign.

With endless footage of lethal obstacles in the river and state military equipment built up at the border, Abbott was able to put himself in the news more frequently than he ever had in his nine years in office. At a press conference on the river in February, 14 Republican governors made the pilgrimage to give their support to Abbott—paying fealty to a man who had never before, despite his long tenure, been considered a first-rank Republican governor or contender for higher office.

By far the most successful of Abbott’s stunts has been his migrant busing program. Texas has spent $230 million and counting on running charter buses with at least 120,000 border-crossers to blue cities and blue states. For the governor, it has been worth every penny. He derives political capital not only from the perception that he is ridding the state of undesirables—many of whom appreciate the free bus ticket—but also in creating chaos in blue cities. The anguished complaints of New York City Mayor Eric Adams are among the greatest political gifts Abbott has received.

But the success of these measures goes beyond the direct policy impact and the elevation of Abbott’s profile—and even the manner in which it centered core Republican issues in an election year. Abbott was offering policy innovations, drawing in other red states to take a harder line. Some states may be “laboratories of democracy,” as Justice Louis Brandeis said. But Texas, as the political writer Molly Ivins declared, is the “national laboratory for bad government.”

Republican governors who wanted their own political capital emulated his example. Multiple states sent their own troops to bolster the Texans in Eagle Pass. Florida Gov. Ron DeSantis tried to one-up Abbott by flying migrants to Martha’s Vineyard. But it’s never enough. As press attention declined,

Abbott was asked by right-wing gadfly Dana Loesch what else the state could do to up the stakes. The governor declared, almost regretfully, that Texas had done everything they could besides open fire. It was hard not to wonder if that might be coming next.

Other Texas politicians wring political capital out of measures that aren’t successful at all. In 2021, the state legislature banned California tech companies from discriminating against conservatives by censoring their social media posts. In testimony before committees, tech representatives mostly seemed confused. (The law is currently blocked in the courts.) Paxton sued in federal court to overturn the 2020 election. This was as poorly executed as it was reprehensible, a hallmark of Paxton’s efforts more generally. In November, alleging that a Seattle children’s hospital was providing care to transgender Texans remotely, Paxton sued to obtain their patient records. Five months later, he quietly dropped the case.

Another set of initiatives relies on the economic power of the state to coerce private companies. While Paxton has done some work on this, the key actor is most often Lt. Gov. Dan Patrick, who as the president of the Texas Senate lacks Abbott’s firepower but has a fine control over policy and a keen understanding of the needs of the donor class. On several occasions—most notably, a strange, slightly manic tirade against Fort Worth–based American Airlines in 2021— Patrick has pressured large companies in Texas to keep quiet on social issues if they want to be heard in his Senate.

But Patrick’s strongest interventions have involved so-called ESG (environmental, social, and governance) investing strategies. For several years, large New York financial institutions like JPMorgan Chase and BlackRock have proclaimed their desire to shift their investment portfolios in the direction of environmental sustainability and social responsibility. Even if this was window dressing, it was taken by the Texas oil and gas industry, which still controls much of the legislature, as an existential threat.

Texas could not pass a law mandating that BlackRock subsidize carbon production, though it surely would have liked to. But it had some leverage: its enormous state investment and pension funds. The Texas Permanent School Fund, which subsidizes public schools, controls some $56 billion in

assets: The 347 retirement funds overseen by the Texas Pension Review Board total some $394 billion in assets. In 2021 and 2023, Patrick led Texas to pass laws that barred state money from being invested with firms the state judged insufficiently invested in the carbon economy.

The state did this despite protests from pension fund managers that it would lose them money, which would ultimately have to instead be extracted from employees or expended by the state. During last year’s legislative session, Amy Bishop, executive director of the $42 billion Texas County and District Retirement System, testified that she anticipated a $6 billion shortfall over the next decade from not being able

dling amount for BlackRock, which reports more than $10 trillion in assets. But a week after the state began pulling out, the firm’s CEO Larry Fink issued his annual chairman’s letter, which seemed to confirm at least a tonal shift at the company as a result of increasing political pressure. He now spoke of “energy pragmatism.” Instead of decarbonization, the company aimed to support a responsible energy “transition.”

At a potentially significant cost to its own employees and taxpayers, the legislature appeared to be bending the direction of some of the world’s largest companies.

It was a strange echo of another period in Texas history, where the legislature attempted to hold Northeastern financiers

Gov. Greg Abbott

• Set lethal obstacles in the Rio Grande to obstruct migrant crossings

• Bused nearly 120,000 border-crossers to other states

to work with a widening set of state-proscribed investment firms. The state tightened the restrictions anyway. On March 20, the Permanent School Fund announced that it was withdrawing $8.5 billion from BlackRock management.

That’s a lot of money for Texas, yet a pid-

to account. At the end of the 19th century, a very poor Texas tried to shield its mostly agrarian population from predatory lending and business practices. The Railroad Commission, founded in 1891, regulated interstate shipping rates. It was soon given oversight of the nascent oil industry, and enacted rules to keep the money flowing from the gushers at home. In 1905, the legislature created a state banking system, complete with its own predecessor of the FDIC,

intended to cater to the needs of those with no access to the national lenders. Then, as now, state financiers understood that their role was to counteract national economic forces for the good of the state. But where the impetus in 1890 was to marshal state resources to broaden the economic base, it is now to consume state resources to maintain the pools of capital claimed by

Attorney Gen. Ken Paxton

• Threatened a small Colorado resort town that tried to keep a donor out during COVID

• Sued to overturn the 2020 election

• Alleged that a Seattle children’s hospital was providing transgender care to Texans remotely

Texans said, because they could no longer win elections at the federal level. Texas was part of a “hopeless minority.” The opposition—the “controlling majority” of the federal government, backstopped by stupid do-gooders in “Massachusetts, New York, Pennsylvania”—was inimical to core Texas values, and wholly committed to destroying them from within, spreading seditious ideas and sending money to sway minds.

Worse still, the knaves running the federal government had failed in their most basic duty: to secure the border. The Beltway class had “failed to protect the lives and property of the people of Texas … against the murderous forays of banditti from the neighboring territory of Mexico.” The state

the very richest people in the state—who are, of course, well represented among the political donor class.

In some ways, we’ve come full circle. An earlier collection of the state’s most important leaders—with the blessing of the legislature—once issued a proclamation to explain why Texas needed to take new and unorthodox measures to maintain its rights. Those measures were necessary, the

Lt. Gov. Dan Patrick

• Pressured large companies to stay silent on social issues

• Championed laws to bar state money from being invested in banks that wouldn’t do business with oil companies

loudest complaint in the declaration is that Northern states had failed to enforce the Fugitive Slave Act. Texas didn’t just want to preserve slavery—it wanted Vermont to enforce slavery. Having been denied the right to extend Texas to the Canadian border, it seceded at the urging of the state’s wealthiest planters and least responsible politicians, knocking off its own elected governor by a coup d’état.

Goliad County’s effort to effectively make legal abortion in other jurisdictions illegal bears echoes of this, and it is hard not to hear those historical echoes elsewhere. This isn’t the 1860s, of course. Abbott and company are playing a dangerous game, riling up the most extreme factions in the state and stirring memories of taking up arms against federal power. Bluster or not, it would be quite easy for it to tip into conflagration.

But this constitutional tightrope walk is embedded into the structure of Texas politics. The state’s most hard-right politicians, the ones responsible for the dumbest and most unwise provocations, belong to a rump minority of the Republican caucus that is able to exercise controlling power over the majority party. It is a very particular kind of polarization that is unique to Texas. Some 3 percent of the state votes in the Republican primary, and that 3 percent has effective control of the ninth-largest economy in the world.

That control can feel like a permanent feature of Texas politics, and it may live for a while yet. But it will end someday. In the 2020 presidential election, Donald Trump won the state by just 5.6 points, a tighter margin than Ohio. In 2018, Sen. Ted Cruz won re-election by just 2.6 points. Both Cruz and Trump are in single-digit fights this year. Polls have shown at least a plurality of Texans thinking the state is on the wrong track for a long time, while a strong majority support abortion rights. (They also support busing migrants out of state, but with less of a dominant majority—52 percent—than you might think.)

had long had to expend its own funds to do so, and Congress wouldn’t pay them back.

Maybe this sounds like it came out last week, but I’m talking about Texas’s 1861 secession declaration. Banditti aside, the

When general elections become competitive again, Texas may become less of a hothouse for stupid ideas. And Gunnison County, Colorado, Seattle, and the banditti of Mexico will be able to breathe a little easier. n

Christopher Hooks is a freelance journalist based in Austin, Texas, and New York.

Red-State Abortion Tactics Push Into Deep- Blue Illinois

How pro-choice advocates in two cities moved to take on anti-abortion lawmakers

By Emma Janssen

Danville, Illinois, has all the trappings of Midwestern postindustrial decline: brick buildings, old Victorian houses, and a downtown that has seen better days. At the turn of the 20th century, the city was a major coal mining, manufacturing, and rail hub. By the beginning of the 21st, most of the mines had been transformed into lakes and the manufacturing plants shuttered. Today, 1 in 4 of Danville’s 30,000 residents live in poverty. Now, the city is working to rebuild and revitalize

by attracting tourists to the area’s museums, parks, and recreational offerings, along with new tax incentives encouraging businesses to set up shop downtown.

Last May, the Danville City Council considered an ordinance that would declare the community a “sanctuary city for the unborn” and ban abortion care within the city’s borders. It included a ban on the shipping and mailing of abortion pills to and within the city. At the time, access to the abortion pill mifepristone was on shaky ground after a series of contradictory rul-

ings from U.S. district court judges across the country. After an hours-long discussion and strongly worded letters from the state and the ACLU of Illinois, the council defied them both and passed the ordinance with a tie-breaking vote from Mayor Rickey Williams, who’s served since 2018.

If Danville had been in one of the neighboring red states—Missouri, Iowa, Kentucky, or Indiana—where abortion is effectively banned, the decision would not have been unexpected. In 2020, President Biden won the city but not overwhelming-

ly, with 51 percent of the vote to Trump’s 47 percent. But abortion has been legal in Illinois since 1973. The state enshrined the right to abortion in state law in 2019 and has gone even further, enacting shield laws to protect abortion providers who perform treatments on out-of-state patients.

Abortion care providers like LaDonna Prince, the owner of Indianapolis’s Clinic for Women, the 46-year-old facility that closed last year, planned to step in to provide care in Illinois for women traveling from prohibition states like Indiana. She had scouted out Danville as a potential location for her new clinic. Prince told Illinois Public Media that she was specifically interested in Danville due to its proximity to Indiana. “We do want to be able to continue to serve women of Indiana, if and when we lose the right to perform abortions here,” she said in 2023.

Danville, however, also happens to be just five miles from Indiana, where abortion

is effectively banned. The state legislature was the first to pass new legislation to prohibit abortion after the high court struck down Roe v. Wade. The ban contains limited exceptions with strict provisions that make care all but inaccessible: Abortions may only be provided in a hospital setting, and if there is a serious risk to the health or life of the pregnant person, a diagnosis of a “lethal fetal anomaly,” or rape and incest, before 12 weeks of pregnancy.

A week after the state ban went into effect, the courts blocked it while a lawsuit was being considered. In June 2023, the Indiana Supreme Court allowed the ban to stand once again. In April 2024, the ACLU of Indiana brought another lawsuit against the state, claiming that the ban violates the state’s Religious Freedom Restoration Act; however, as of now abortion is still illegal. Health care providers in blue states have tried to fill the gaps left by extreme anti-abortion policymakers in neighboring

states. But Prince and other reproductive rights advocates hadn’t reckoned with landing in the middle of the post-Roe minefield: blue-state, pro-life supporters embracing aggressive red-state tactics designed to prevent interstate abortion access.

When the Dobbs decision came down, trigger laws immediately came into effect in 13 states to place restrictions on abortion care, prompting a surge in interstate travel for abortion care. Today, 13 states have total abortion bans and 27 states have abortion bans based on gestational duration.

Illinois—which borders one state (Iowa) with a six-week ban and three states (Indiana, Kentucky, and Missouri) with total abortion bans—has seen the largest increase in out-of-state patients seeking abortion care in the country. In the first six months of 2023, just under 19,000 of those patients obtained care in the state. That’s an increase

of 13,300 out-of-state patients since 2020.

This massive surge is also a result of the state’s years-long effort to become an island of reproductive freedom in the Midwest.

Christina Chang, executive director of the Reproductive Freedom Alliance, a coalition of 23 pro-choice governors, explains that since the group has limited means to challenge anti-abortion legislation in rightwing states, local activists, abortion funds, and legal organizations in red areas must take up the fight against restrictive policies instead. “But what we can do,” Chang says, “is think about what the implications are [for] people who might be seeking care in alliance states.” Those efforts include shield laws that protect providers, patients, and groups that help facilitate abortion travel, as well as data protection regulations that guard the personal information of everyone involved in abortion care.

Shield laws provide legal protections against the threat of extradition, but they

have not been tested in the courts yet—and those challenges are likely on tap. Connecticut’s shield law, for example, which is one of the strongest in the nation, doesn’t require extradition requests to provide a detailed description of the alleged illegal conduct, thus making it difficult to know whether the shield law actually applies to the circumstances at hand.

Midwest Access Coalition (MAC) coordinates a practical support fund that helps provide funding for costs like travel, lodging, food, and child care that could otherwise be barriers to abortion access for patients in the region. MAC ’s director of strategic partnerships, Alison Dreith, says that in the wake of Dobbs, pro-choice policymakers and grassroots groups have learned to exist symbiotically: “I trust policymakers to know … their constituents, their fellow lawmakers, their process better than I know it, and it’s my job to know what abortion seekers need and what’s going to

help clinics succeed in supporting those health care patients,” she says.

This convoluted situation originated with red-state anti-choice activists and legal advocates who have promoted cross-state restrictions to stir up more opposition. In 2021, Senate Bill 8 went into effect in Texas. Also known as the Texas Heartbeat Act, the law prohibits physicians from performing abortions after a “fetal heartbeat” has been detected (unless it is a medical emergency). The restriction is not shocking, when compared to similar draconian anti-choice measures across the country.

What is uniquely dangerous about SB 8, though, is a provision that allows regular citizens to file civil lawsuits against anyone who performs or “aids and abets” an abortion in violation of the law. The law doesn’t specify what constitutes aiding or abetting, leaving interpretations up to the courts. However, the provision has been used against abortion and practical

Danville (left) and Quincy, Illinois, have been caught up in the national debate after Dobbs, despite the state’s abortion protections.

Red states export tactics to blue states, which in turn try to fill care gaps left by red-state bans.

support funds, which has a chilling effect on donors and recipients of those funds. Already precarious relationships can also take on chilling new dimensions. In one

Texas case, an abusive husband attempted to sue his wife’s friends for allegedly helping her seek an abortion.

In his Dobbs concurrence, conservative Supreme Court Justice Brett Kavanaugh surmised that laws restricting interstate travel for abortion would likely be unconstitutional, arguing that the Constitution carves out a fundamental right to free movement across state lines.

Despite Kavanaugh’s signal, abortion travel bans have been enacted in states across the country. After passing a near-total ban on abortions, Idaho also passed HB 242, which restricts out-ofstate travel for abortion care by criminalizing planning actions within state lines before the travel occurs.

In 2023, Alabama Attorney General Steve Marshall threatened health care providers, telling them that they could face felony charges for supporting patients who sought

out-of-state care in states where abortion is legal. A group of health care providers filed suit, and in November 2023, the Justice Department filed a statement of interest in the case, explaining that the Constitution protects the right to travel across state lines and that states cannot prevent anyone, including health care workers, from helping others exercise that right.

In Texas, two extreme anti-abortion activists—pastor and anti-abortion activist Mark Lee Dickson and former Solicitor General of Texas Jonathan Mitchell— brought the abortion travel fight to municipalities. The effort started in four Texas counties: Goliad, Mitchell, Cochran, and Lubbock. In each county, commissioners voted for ordinances that would bar pregnant Texans from traveling through the counties to seek abortions in another state. The ordinances are only enforceable with the legal power of SB 8 that allows individual citizens to act as vigilantes.

Abortion Division

Governors from 22 states and one territory have formed the Reproductive Freedom Alliance, a coalition to expand reproductive rights.

Dickson had come up with another nefarious strategy that goes hand in hand with travel bans: the so-called “sanctuary cities for the unborn” movement. Texas Monthly reported that he first met with Mitchell on a conference call to seek guidance for his plans. In June 2019, Dickson and Mitchell’s sanctuary cities strategy earned its first success in Waskom, Texas, a city of fewer than 2,000 residents with an all-male city council. As of September, there are 69 cities and eight counties that have passed sanctuary cities–style ordinances attempting to outlaw abortions and related care within their borders.

According to the ACLU of Illinois, these sanctuary city ordinances often operate by attempting to restrict the availability of medications necessary for abortion care, block the functioning of local abortion clinics, and restrict abortion-related travel in or through the community.

The strategy is a clear example of interstate aggression. The cities that have been targets of these anti-abortion legal offensives are often border cities that see a high volume of interstate travel for reproductive health treatments, such as picking up

pills in a pharmacy or receiving care in a brick-and-mortar clinic.

Chang argues that the expansion of anti-abortion policies across state lines is a strategy as old as the anti-abortion movement itself. “They’re sharing that language, and this bounty hunter law in Texas is no different,” she explains, citing SB 8. After a policy success in one state, anti-abortion activists “replicate that in all these other states,” Chang adds. SB 8 opened the floodgates for travel bans that have spread to cities thousands of miles away—like Danville.

From the moment the Danville city councilors signed off on the ordinance on May 2, 2023, it conflicted with the Illinois Reproductive Health Act, which Gov. JB Pritzker had signed into law in 2019. The law states that reproductive health care, including abortion care, is a fundamental right and ensures that local governments cannot infringe on those rights.

City officials, of course, had been warned. The day before the vote, Illinois Attorney General Kwame Raoul sent a letter to Danville Mayor Williams, reminding

him that the ordinance would be in direct violation of the Reproductive Health Act and that his office “stands ready to take appropriate action to ensure that Danville and its elected officials adhere to Illinois law, including the Reproductive Health Act.” The ACLU of Illinois also sent a letter to members of the Danville City Council’s public services committee, urging them to vote down the ordinance: “Voting yes on the proposed ordinance will only cause confusion and fear in our communities, all while exposing Danville to significant legal liability,” the organization wrote.

The legal threats from the attorney general and the ACLU of Illinois had a chilling effect on the city councilors. They backed down and amended the ordinance, adding that it would take effect only “when the city of Danville obtains a declaratory judgment from a court that it may enact and enforce” the ordinance. Until that day, the ordinance is not in effect, and Danville is not a “sanctuary city for the unborn.”

Some weeks after the Danville city councilors passed their muzzled anti-abortion ordinance, an anti-abortion extremist named Philip Buyno drove to Affirma -

tive Care Solutions, Prince’s new clinic in Danville. When he arrived at the yet-tobe-opened facility, he rammed his maroon Volkswagen Passat into the building, attempting to set fire to the clinic. FBI agents later found gasoline, road flares, tires, a pack of matches, and a hatchet in the car.

At Buyno’s criminal hearing, Prince testified that the violence would significantly delay the clinic’s opening. “This terrorist attack was intentionally timed to prohibit us from opening our doors,” she told the court. “It delayed our opening by at least a year, perhaps more.”

Three months after the vote in Danville, Carrie Bross, an organizer with the pro-choice group Voices for Choice and a resident of Quincy, Illinois, caught wind of an abortion-related issue on the city council’s agenda. Much like Danville, Quincy is a border city of 40,000 that sits just across the Mississippi River from Missouri. Two bridges, one sleek and modern built in 1987 and the other approaching the century mark, connect the two states.

Quincy has straddled the country’s political divisions for centuries. In 1833, the abolitionist Richard Eells moved to the town and turned his new home into a stop on the Underground Railroad, providing safe passage for enslaved people fleeing Missouri and the Deep South.

Bross discovered that some city council members in Quincy wanted to go down Danville’s path and implement a “sanctuary city for the unborn” ordinance, but had kept the plan under wraps. “There wasn’t anything that was showing up on the city coun-

cil agenda,” she told the Prospect. “There were really not a lot of indications that this was going on.”

When Bross stepped up to make her first public statement about the ordinance at the September 25, 2023, city council meeting, she took off her cardigan and scarf to reveal a “Pro Roe 1973” T-shirt. She argued that Quincy needed to focus on other pressing issues like public works projects instead of passing a measure that would be at odds with Illinois law from day one and require the city to channel its limited resources into defending its case.

“We kind of forced the council’s hand to discuss it sooner than they intended, because we chose to bring it to them before it even showed up on an agenda,” Bross says.

The city council set October 10 for the vote. Over the next two weeks, Bross and other local state political activists set up an informal anti–sanctuary city coalition. With the support of the state ACLU chapter, Planned Parenthood, and Personal PAC, a pro-choice group, they organized protests and phone banks, wrote letters to the editor, and reached out to residents on social media. According to Bross, about 300 people signed a petition opposing the ordinance.

“I don’t think [the city council] expected how many people would turn out in opposition to the ordinance, because the area we live in is a very conservative area,” Bross says. In 2020, Adams County—Quincy is the county seat—voted overwhelmingly for Trump, who garnered 72 percent of the vote.

The same lawyers and politicians who helped kneecap the Danville ordinance came out in full force to support Quincy. Liza Roberson-Young, then the senior supervising policy counsel at the ACLU of Illinois, traveled to Quincy for the October council vote to warn the city council against passing the ordinance. “The state of Illinois has adopted a policy assuring that every person in our state can make reproductive health care decisions without government interference. Quincy—nor any other community—cannot carve themselves out of this state law,” she said.

On the night of the vote, residents packed the small city council meeting: 27 others expressed their support while 29 people spoke out against the ordinance, with some residents commenting that if the ban passed they would leave Quincy.

Muddy Rivers News reported that Mayor Mike Troup said after the meeting that had there been a tie vote he would have voted no to defeat the ordinance. “Personally, am I pro-life? Yes,” he said. “But is this something the City Council should be dealing with? That’s where, I think, the no votes came in. I don’t know that there’s really anyone on the City Council who’s not pro-life.”

Two city council members, Greg Fletcher and Jake Reed, both Republicans, got in a back-and-forth about their pro-life credentials, with Fletcher arguing that the ordinance wasn’t appropriate for a city council to decide and Reed firing back. “Take this fight to Springfield. Not here,” Fletcher said, according to the local news report.

“What happened in Quincy and Danville is a good example of how, even in a state like Illinois, where we have great policy and great protections coming from the state level, you can never let your guard down,” says Ameri Klafeta, director of the Women’s and Reproductive Rights Project at the ACLU of Illinois. Neither Danville nor Quincy had the power to contravene Illinois law. In that sense, the anti-abortion activists behind the sanctuary cities movement failed to change local policies in a deep-blue state. But there are more fights ahead in a divided postRoe America. Extremists like Dickson and Mitchell in Texas show no sign of stopping their sanctuary city crusade. Moreover, the increasing tensions could lead to new interstate legal conflicts over shield laws—and more violence. Dreith of the Midwest Access Coalition summed up the mood in regional pro-choice circles this way: “I think we are all doomsday preppers at MAC, basically,” she says. “We don’t have a lot of hope for the future right now.”

Pro-choice organizers, from governors to individual activists, have built strong interstate networks capable of withstanding threats like the sanctuary city ordinances. But anti-abortion activists are building the same coalitions from the grassroots to the Supreme Court. These volatile pathways are not sustainable. The debates in Danville and Quincy point to the need for a national solution, otherwise the contradictions and legal battles will only multiply in number and intensity. If abortion is indeed in the hands of states—for now—then reproductive rights supporters, especially in Republican strongholds, will have to work to pass legislation affirming the right to abortion care—one state at a time. n Danville city councilors signed

The council voted 7-to-5 against the ordinance.

Breaking the Publıc Schools

Red states are enacting universal education vouchers, threatening budget calamity and potentially degrading student achievement.

By Jennifer C. Berkshire

Education spending in North Carolina is about to go way up, thanks to lawmakers’ largesse. But the extra funds—close to half a billion dollars—won’t go to the public schools attended by the vast majority of children in the state, or to hike teacher pay, despite a worsening shortage. Instead, the huge influx of cash will go to

pick up the tab for private school tuition, including for well-off families, a priority for North Carolina’s Republican supermajority. In fact, according to recent state analysis, funding for the state’s public schools will drop by nearly $100 million as a result of voucher expansion. While Gov. Roy Cooper, a Democrat, vetoed the bill, legislators are expected to override him.

As one school district leader stated, “It feels like to me that there’s a desire to suffocate traditional public schools to justify their demise.”

North Carolina’s tilt toward school privatization is all the more remarkable given that the state was, until relatively recently, a model for the kind of education-as-humancapital vision that united both political par-

ties. Starting in the 1980s, governors of both parties plowed money into public schools, teacher salaries, and community colleges, with the aim of supercharging the state’s economic development.

Today, the story couldn’t be more different. The GOP candidate for governor, current Lt. Gov. Mark Robinson, is a vocal proponent of school vouchers and has encouraged

North Carolina parents to remove their children from public schools, citing alleged agendas in the classroom. “Do not turn your children over to these wicked people,” Robinson told attendees at a church service.

A growing number of parents seem to be listening. North Carolina, which once had the highest percentage of students enrolled in public schools in the nation, has seen pri-

vate school enrollment soar in recent years.

In recent years, education policies in states red and blue have diverged dramatically. Red-state lawmakers have donned the mantle of culture warriors, imposing limits on what teachers can talk about and what kids can learn, mandating so-called patriotic education, and injecting religion into public school curricula. Conservatives

have banned “critical race theory” in schools and intimated that teaching students about LGBT history is a pretext for “grooming” children. Oklahoma is now requiring that public schools teach the Bible as an “indispensable historical and cultural touchstone,” Louisiana is requiring displays of the Ten Commandments in every classroom, and Texas has inserted Bible stories into its elementary school curriculum.

But the explosion of so-called universal school vouchers is likely to have a far more profound impact on the lives of young people in red states than these culture-war hot buttons. As states race to pay for families to send their kids to private schools, blowing up state budgets in the process, the schools attended by the vast majority of kids will be left with far fewer resources, blunting their prospects. By design, funds are being shifted away from students in poor and rural areas and into the pockets of affluent parents, entrenching inequality in the process.

A Radical Shift

“Anyone know of a flat earth curriculum?” The query, posed in a discussion group for recipients of school vouchers in Arizona, which are known there as education savings accounts, or ESA s, was not a joke. Arizona is home to the nation’s most ambitious experiment in free-marketizing education. Parents here are allowed to direct education funds, not just to the school of their choice, but to anything they might call “education.”

As Arizona’s superintendent of public instruction Tom Horne, a loud proponent of vouchers, admitted in an interview, the state’s emphatically hands-off approach means that there’s nothing to prevent parents from using public dollars to teach their kids that the Earth is flat. Indeed, state law prohibits any kind of public oversight over the burgeoning nonpublic sector of private schools, homeschooling, and microschools, which are for-profit ventures in which small groups of students learn online while being monitored by a guide.

While Arizona’s ESA experiment would seem to be a cautionary tale, a growing list of red states view it as a model. Fourteen states have now enacted so-called universal voucher programs, providing taxpayer funds to any family that wants them. As economist Doug Harris has argued, these “super vouchers” represent a radical break with what he calls the foundational

traditions of public education across the country: “separation of church and state, anti-discrimination, and public accountability for educational processes and outcomes funded by taxes.”

Voucher advocates have long couched their support for abandoning public education in the language of mobility and uplift. In North Carolina, vouchers have been rebranded as Opportunity Scholarships; in Louisiana, they are GATOR scholarships, or “Louisiana Giving All True Opportunity to Rise.” But a radical exacerbation of existing inequities is the far more likely outcome. Among states that have adopted universal vouchers, wealthy parents have leapt at the opportunity to send their kids to private schools using state funds. A review by The Wall Street Journal last year found that the biggest beneficiaries of the new voucher programs have been students already enrolled in private schools, meaning that their parents were wealthy enough to pay for tuition themselves.

States that have opened existing voucher programs to wealthy residents have seen a similar trend. In Indiana, for example, which has had a voucher program for lowincome students since 2011, lawmakers have steadily expanded eligibility to more affluent Hoosiers. According to recent analyses of the program, which is projected to cost the state $600 billion this year, vouchers in Indiana now subsidize predominantly wealthy, white suburban families whose kids never attended public schools. Meanwhile, the percentage of lowincome students receiving vouchers has been steadily decreasing.

The ability of private schools to hike tuition as a result of state support is also likely to deepen the divide between rich and poor students. A study published by researchers at Brown and Princeton Universities found that after Iowa adopted a voucher program, tuition at private schools rose by nearly 25 percent. Across the border in Nebraska, where lawmakers have tried but so far failed to enact a similar program, no such tuition hikes occurred. Vouchers, conclude the researchers, act as tuition subsidies for families who can afford private schools, incentivizing such schools to charge more while pricing out families who can’t afford it.

One of the arguments voucher proponents have long made is that funding parents directly will end up saving taxpayers

money, since the amount of the voucher is typically less and sometimes far less than what states spend to educate a child. Yet that logic only holds if students are leaving the public schools. Because these programs have ended up subsidizing parents whose kids already attend private school, they represent enormous new budget items.

As ProPublica documented recently, Arizona’s voucher program has precipitated a “budget meltdown” to the tune of nearly $1.5 billion this year. While the rising tide of red ink will inevitably lead to slashed spending on the state’s public schools, the cost of paying for private school tuition is now crowding out spending on all sorts of state services and projects, including investment in vital water infrastructure. Arizona’s budget woes are exacerbated by the fact that there’s less money coming in thanks to a flat tax that delivers huge benefits to the wealthy.

“States that have passed significant tax cuts, dramatically expanded private school vouchers, or done both should be alarmed by how quickly Arizona found itself in a deep fiscal hole,” warned the Center on Budget and Policy Priorities recently. On that list of states: Iowa, West Virginia, Ohio, North Carolina, and Arkansas. Faced with shrinking revenues and costly new voucher programs, these states will soon be forced to enact major spending

The explosion of so-called universal school vouchers is likely to have a far more profound impact than culture-war hot buttons.

cuts, setting off a battle for increasingly scarce resources.

Voucher proponents appear to have gamed that out as well. The looming budget showdowns will pit affluent parents, who will be loath to give up their new entitle -

ment, against the majority of families whose children still attend public schools. It isn’t hard to predict the outcome.

Culture War as Smoke Screen

“To get universal school choice, you really

need to operate from a premise of universal public school distrust,” proclaimed conservative provocateur Christopher Rufo in a 2022 speech. To a remarkable extent, that sentiment now animates Republican education policy. Some 18 states have banned the discussion of so-called divisive concepts, threatening teachers with punishment and schools and districts with fines, while giving parents the right to sue if their kids encounter banned topics in the classroom. But the anti- CRT furor signaled just the start of the GOP’s embrace of the school culture wars. Over the past two years, red states have cycled through a fixation on pornography in libraries, social and emotional learning—a Trojan horse for Marxism, claim its critics—and anything having to do with gender.

What is increasingly apparent, though, is that these successive panics have merely been smoke screens for enacting school vouchers. “It is time for the school choice movement to embrace the culture war,” wrote Heritage Foundation research scholar Jay Greene in an influential 2022 paper. His boss Kevin Roberts, the architect of Project 2025, was making a similar argument, albeit in more apocalyptic terms, by urging red states to go to war against “a movement willing to cover up sexual assaults, mutilate vulnerable children, and celebrate racism.” Such arguments would provide the playbook for voucher expansion in one state after another, as right-wing groups fanned the flames of the culture wars while holding up vouchers as an alternative for “anti-woke” parents.

Incendiary rhetoric about indoctrination also plays another key role in the school privatization campaign. In his new book The Privateers: How Billionaires Created a Culture War and Sold School Vouchers, education scholar Josh Cowen argues that voucher advocates have embraced the role of culture warriors in part to obscure the disastrous academic results of previous voucher experiments. In Louisiana, for example, where Gov. Jeff Landry is leading a crusade to fuse church and state, research found steep academic declines for students who participated in the state’s voucher program, largely because they ended up attending low-quality religious schools.

In Texas, Gov. Greg Abbott has spent the better part of two years making ever more outlandish claims about the state’s schools as he seeks to enact a controversial

A 2017 protest of Arizona’s education savings accounts (ESAs). The program has led to a $1.5 billion state budget shortfall this year.

voucher scheme. By the spring of 2023, he was warning of “an extraordinary movement to expand transgenderism in schools in the state of Texas.” Public school teachers, Abbott insisted, were “using their positions to try to cultivate and groom these young kids” into being transgender.

That was precisely the sort of rhetoric that convinced Courtney Gore to run for school board in deep-red Granbury, Texas. Elected as a Republican in what had previously been a nonpartisan contest, Gore pledged to root out indoctrination in the local schools. Today, Gore views herself as having been a pawn in a larger scheme to sow distrust and chaos in order to “degrade trust in our public education system.” Says Gore: “The ultimate goal is to try to get vouchers passed.”

A Deepening Divide

At a rally this summer, Donald Trump touched on the topic of school spending. “We

spend more per pupil than any other country in the world, and we’re at the bottom of every list,” he told a crowd in Philadelphia.

Cut spending in half, Trump insisted, and the result will be “much better education.”

Unsurprisingly, Trump’s claim is wildly at odds with research on the connection between school spending and student achievement. That more spending, particularly on schools attended by the poorest students, leads to improved academic performance and graduate rates is now so well established that even former naysayers have conceded the point. The evidence regarding the damage done by slashing school spending is also considerable. Deep spending cuts result not in a system that looks like Norway, as Trump opined to the faithful, but in stunted academic and life outcomes for kids.

Twelve years ago, Kansas attempted a radical experiment in tax cutting. Under

then-Gov. Sam Brownback, lawmakers slashed taxes on the state’s top earners and reduced the tax rate on some business profits to zero. As one think tank put it, “Kansas Tax Cuts Among Deepest State Tax Cuts Ever Enacted.” The cuts did not bring the promised “trickle-down” economic renaissance. As revenues plunged, lawmakers were forced to make deep cuts to spending, particularly for public schools. By 2016, Kansas had tumbled to near the bottom of state spending on public elementary and high schools.

The drop in educational attainment among students was just as dramatic. As school funds dried up, resulting in teacher layoffs and program cuts, the number of students who dropped out before earning a high school diploma rose dramatically, while the percentage of high schoolers going to college plunged. Jonathan Metzl, a scholar and medical doctor, who chron-

Former Kansas Gov. Sam Brownback (R) cut public school spending so heavily that the state supreme court found the underfunding unconstitutional.

Red states are growing steadily less educated, while education levels in blue states continue to rise.

icled the impact of Kansas’s tax-cutting experiment in Dying of Whiteness, argues that young people in the state “became cannon fodder in the fight to redistribute wealth upward.” Just four years of school budget cuts was enough to narrow the possibilities for a generation of young Kansans. It got so extreme that the state supreme court found the underfunding of schools unconstitutional.

Today, a growing list of states seems poised to replicate the Kansas disaster, as the combination of shrinking state coffers and enormous new voucher programs forces deep cuts to spending on public education. The result will be a deepening, and seemingly intentional, decline in educational attainment in red states.

“We are in the first extended period of diverging educational attainment in U.S. history,” warns Mike Hicks, an economist at Indiana’s Ball State University and the author of The Country Economist newsletter on Substack. Red states are growing steadily less educated, the result of disinvestment from public education, while education levels in blue states continue to rise. That divide is also, of course, partisan. Notes Hicks: “The 15 states that have seen the biggest relative drop in educational attainment are all solidly Republican states—and poor. Indiana ranks 10th on this list. The top 15 states are all solidly Democratic—and affluent.”

Now, as red states race to enact sweeping school privatization schemes, that divide is likely to become a chasm. The same states that dominate the “least educated” rankings, a list that includes West Virginia, Arkansas, Louisiana, and Oklahoma, have also adopted universal school voucher programs. Texas, which comes in at number 41, is poised to join them in the coming months after big-money school choice donors, including hedge fund billionaire Jeff Yass, poured money into state races in a largely successful effort to eliminate voucher opponents within the GOP.

For their part, red-state policy elites seemed determined to hasten the process of driving educational attainment levels down. In addition to vouchers and tax cuts, these same states have also rolled back restrictions on child labor, allowing teens to work longer hours and in more dangerous occupations. Pitched as a way to help teens “develop their skills in the workforce,” as the governor of Iowa put it, such laws will also have the effect of nudging more kids out of school and into work.

What Happens in Red States Won’t Stay in Red States

So far, the explosion of voucher programs has been largely confined to the states that, as one education pundit observed, make up the “old Confederacy.” That’s unlikely to remain the case for long. The American Legislative Exchange Council recently unveiled a new Education Freedom Alliance, with the aim of getting universal vouchers enacted in 25 states by 2025. Led by two right-wing business organizations, the Job Creators Network and the Committee to Unleash Prosperity, the ALEC effort seeks to expand vouchers in red states where they’ve previously encountered resistance—Texas, Tennessee, and Nebraska— as well as in purple states like Pennsylvania and New Hampshire.

Project 2025 goes much further. The education section of the conservative blueprint for a second Trump administration, created by the Heritage Foundation, lays out a plan for restructuring federal education funding so that it flows directly to parents to use outside of public schools, essentially replicating the Arizona model. Among its proposals: turning Title I, which supports high-poverty and rural schools, into a “no strings attached” block grant to states, while encouraging states to distrib -

ute funds to parents in the form of education savings accounts.

Should its architects prove successful, Project 2025 would have dire implications for the nation’s public schools. A recent Center for American Progress analysis predicted that eliminating Title I funding would result in the loss of 180,000 teacher positions and negatively affect the academic outcomes of some 2.8 million students.

But cutting funding to schools and steering taxpayer dollars to institutions that are allowed to discriminate remain deeply unpopular positions. That’s why Americans have consistently rejected private school vouchers when they’ve been placed on the ballot, a result that is likely to be repeated when voters have a chance to weigh in on voucher measures in Nebraska and Kentucky this November.

The imposition of the red-state vision for school privatization and more entrenched inequality is likely to come not through Congress or via voters, but through the courts. Last year, encouraged by a string of Supreme Court rulings that have opened the door to public funding of religious schools, Oklahoma attempted to open what would have been the nation’s first taxpayer-supported religious charter school. The virtual school was to be operated by the state’s Catholic Archdiocese, which would teach Catholic doctrine and require students and staff to attend mass; its employees were to be classified as “ministers,” exempting them from labor law protections.

This summer, Oklahoma’s highest court prevented the school from opening, arguing that the state could not fund the school without violating the prohibition against government-established religion in both the state and federal constitutions. The case is now headed to the U.S. Supreme Court. According to a recent Politico investigation, conservative legal activists are determined to use the Oklahoma school as a means of undermining the entire separation of church and state.

Blue states, which ban both discrimination and the use of public monies for religious education, may soon find themselves with no choice but to fund both. n

Jennifer C. Berkshire is the host of the education podcast Have You Heard and the author, with Jack Schneider, of The Education Wars: A Citizen’s Guide and Defense Manual.

The Political Violence Spilling Out of Red States

Red America is imposing its vision on the rest of the country through intimidation, and in some cases even more.

By Jon D. Michaels and David L. Noll

In December 2020, Rusty Bowers’s modest suburban home in the Phoenix suburbs became the site of virulent MAGA protests. Bowers, the Republican Speaker of Arizona’s House of Representatives, had come under intense pressure from Donald Trump and his lieutenants to call a special session of the Arizona legislature to investigate supposed fraud in the election that Trump had just lost. When Bowers refused Trump’s entreaties, his legislative colleagues went after him on Twitter.

Before long, his home address had been posted across right-wing social media networks. “Trump trains” of pickup trucks, waving MAGA flags and blaring their horns, descended on Bowers’s home, where his 42-year-old daughter, Kacey, was convalescing in the final stages of a battle with

liver failure. An armed gunman confronted one of Bowers’s neighbors. A video billboard baselessly and scurrilously accusing him of being a pedophile was parked outside his home. Bowers went on to receive the nation’s second-highest civilian award for his defense of democracy, before losing his next primary race to a challenger who claimed the devil stole the 2020 election.

The vigilantes and their enablers in government weren’t done. In a May 2022 presentation from True the Vote, a front group for election deniers, state Sen. Kelly Townsend parroted a conspiracy theory that Democratic operatives were using Arizona’s early-voting drop boxes to deposit thousands of illegal ballots. “I have been so pleased to hear of all of you vigilantes out there that want to camp out at these drop boxes,” Townsend told her

audience. “So do it. We put the word out today that if you’re going to come and be like a mule and stuff ballot boxes this time, you’re going to get caught.”

Arizona has used early voting for decades; its ballot drop boxes, located at courthouses and government centers, allow voters to exercise their constitutional rights in a secure and convenient fashion. But when early voting began, voters were shocked to find masked, heavily armed men patrolling the drop boxes. Although the vigilantes concealed their identities, reporting from ProPublica revealed that they included members of the AP3 militia, a group whose popularity surged as federal prosecutors went after other militias more centrally implicated in the January 6th insurrection.

The vigilantes’ presence cast a chill over Arizonans’ exercise of the franchise. An untold number of voters walked or drove away rather than subject themselves to being surveilled by vigilantes carrying long guns and recording equipment. After one voter tried to drop off her ballot, she was followed by a group of individuals, triggering a federal civil rights investigation.

The MAGA Movement’s Revival of State-Sponsored Vigilantism

The vigilante attacks on Arizona’s elections came as a shock. Yet public, private, and in many cases public and private voter suppression has been a regular feature of America’s elections for most of the nation’s history. Long into the 19th century, states restricted the franchise to white men whose good character was established by owning property where they voted. After the Civil War, when constitutional amendments guaranteed voting rights to Black men, states and private actors primarily in (but not limited to) the South devised an

array of voter suppression schemes, both blunt and subtle, to ensure that the formal right to vote was little more than an empty promise for anyone but white Democrats.

As social media users pointed out when images of the Arizona drop box vigilantes went viral, the Ku Klux Klan used the same techniques, similarly animated by a purported need to protect the “integrity” of the vote, to manipulate elections during Reconstruction. The Klansmen’s efforts may have formally violated the law. But little in the way of punishment was forthcoming. State officials not only tolerated but often encouraged the violent enforcement of white supremacy.

State-supported vigilantism remained a central feature of American political life throughout the long decades of Jim Crow. Only after the civil rights movement gained momentum did the tide turn. But to the surprise and horror of practically everyone who understood state-supported vigilantism to be gone for good, the ignoble practice is now making a roaring comeback. Equal-

ly inspired and chastened by the chaos of January 6, 2021, MAGA strategists recalled that for private violence and intimidation to work well, it would have to be normalized, and even legalized.

To carry out this plan, MAGA lawmakers backed by a loose network of lawyers, darkmoney groups, and right-wing advocacy shops like the Alliance Defending Freedom and Russell Vought’s Center for Renewing America have repurposed Jim Crow–era strategies to advance the dual objectives of prosecuting today’s Christian nationalist culture wars and entrenching MAGA political power.

In our forthcoming book Vigilante Nation: How State-Sponsored Terror Threatens Our Democracy, we term the first of these strategies dissenter vigilantism. By reconfiguring what used to be a right to opt out, lone dissenters are given the de facto right to impose their policy views on their communities.

The second strategy, courthouse vigilantism , encourages MAGA foot soldiers to

Armed vigilantes in Arizona patrolled drop boxes throughout the state during the 2022 elections.

Red state–supported vigilantes are specifically aiming to intrude into blue states and impose MAGA values.

surveil members of their communities and bring legal proceedings to punish deviations from MAGA orthodoxy, even if those deviations take place outside their jurisdictions. Pioneered in Texas’s infamous antiabortion bounty hunter law, it has become a key mechanism for policing the gender of high school athletes and pushing LGBTQ+ families out of public life.

The next strategy, street vigilantism , involves the use of violence and threats of violence to control who exercises rights and how. Through immunities from criminal prosecution, an exorbitant conception of “self-defense” that allows for the use of deadly force when heavily armed vigilantes feel “threatened,” kid-glove exercises of prosecutorial discretion, and Trumpian uses of the pardon power, MAGA politicians telegraph that violence against their political enemies is welcome and will not be punished.

Lastly, electoral vigilantism involves the use of dissenter, courthouse, and street vigilantism to take and hold political power. In locales like Shasta County, California, and Clallam County, Washington, it has propelled right-wing government takeovers, creating a vicious circle in which vigilantebacked officials further empower the foot soldiers who put them in office, all in the hope of creating a Jim Crow–style lock on political power. But this is not preordained; in Shasta County, frustration with the incompetence and maladministration of the militia-backed officials has enabled some of the community’s old-school conservatives to regain their footing. Control of county

government is now closely divided between MAGA die-hards and their opponents.

Copycats, Spillovers, and Intrusions

The most immediate effects of the right’s revival of legal vigilantism have been in MAGA-dominated states such as Florida, Texas, and Tennessee. Recent reporting shows that vigilante-targeted teachers and students are being forced to conceal their identities; denial of access to reproductive care and gender-affirming care has led to arduous, expensive, and sometimes dangerous trips to secure services out of state; and lifelong Republicans have been hounded from office and public life more broadly for faithfully executing their duties. Local governments controlled by vigilantes have thrown out voting machines and wasted millions of dollars pursuing MAGA conspiracy theories, while liberal towns and cities, notably in Texas and Florida, have seen their authority to govern themselves handed over to vigilantes operating with a license from the state.

As political scientists have documented, however, state and local governments today play a particularly prominent role in national political battles, serving as laboratories for policies copied by other states and, perhaps soon, by the federal government. A glance at Project 2025 reveals how much inspiration the drafters of the de facto manifesto of a second Trump presidency have seemingly drawn from the likes of Ron DeSantis, Greg Abbott, and Glenn Youngkin.

But state-supported vigilantism isn’t simply about cementing right-wing control in MAGA jurisdictions and prototyping policy for the Heritage Foundation. Red state–supported vigilantes are specifically aiming to intrude into blue states and Washington, D.C., and impose MAGA values.

Like much of the vigilante playbook, the prototype for these incursions is the handiwork of Donald Trump. In 2020, in the early days of the COVID -19 pandemic, Trump issued a Twitter call to “LIBERATE MICHIGAN,” where lawmakers were considering whether to challenge an emergency declaration issued by Democratic Gov. Gretchen Whitmer restricting public gatherings.

Trump’s tweet animated far-right extremists, some of whom understood the president to be calling for the “boogaloo,” an armed uprising that’s a fixture of anti-government conspiracy theorists. In a preview of the January 6th insurrection, caravans soon descended on Lansing to protest at the

governor’s residence. Not long after, armed protesters flooded the state Capitol building. From high in their perch, they looked on as legislators attempted to conduct the state’s business. A viral photograph captured an agitator screaming in the face of masked State Police officers. One of that man’s confederates explained his presence as follows: “The message here that I had: Violence will happen and it will happen in two weeks when people literally don’t have any food … You’re gonna rub people the wrong way. There will be violence. People are dying from the side effects of all this legislative action.”

Following Trump’s lead, MAGA organizers have mustered posses to “protect” communities from Black Lives Matter protests. The most notorious such gathering took place in Kenosha, Wisconsin, where Kyle Rittenhouse (who traveled from Illinois upon learning about the rally on social media) shot and killed two BLM protesters and injured a third. MAGA leaders have organized pro-Trump caravans in California, Florida, Michigan, New York, North Carolina, and Texas, where in 2020 they attempted to run a Biden campaign bus off I-35 between Austin and San Antonio. They’ve summoned mobs to combat supposed ballot-stuffing and dispute unfavorable election returns, as in Arizona. The national news media inevitably covers these incursions, and right-wing commentators applaud them. As one caravan headed to Lansing during the pandemic, Fox News host Laura Ingraham tweeted it was “time to get your freedom back.”

In today’s America, there is no such thing as purely local vigilantism. The toxic combination of social media, national news, and cross-state activist networks—all of whom take their cues from Mar-a-Lago— makes every local attack a part of a national political battle.

As if targeting women, LGBTQ+ people, and racial minorities doesn’t do enough work to silence their voices, bully them out of civic spaces, and maybe even compel them to relocate to safer (often bluer) states, rightwing partisans are intimidating voters and election officials, and destabilizing democracy in the process. In the wake of violent threats, doxing incidents, and harassment campaigns led by both townspeople and elected officials, scores of nonpartisan election administrators and supervisors have stepped down from their posts.

In a May 2024 survey by the Brennan Center at NYU School of Law, 38 percent of local election officials reported experiencing threats, harassment, or abuse. Fifty-four percent of officials said they were concerned for the safety of their colleagues and staff, and 28 percent reported being concerned about their family or loved ones being threatened or harassed. After pro-Trump mobs descended on polling sites and tabulation centers in 2020 and 2022, Arizona has taken extraordinary measures to secure them in the upcoming presidential election. In Maricopa County, uncounted ballots are kept in “cages” made of chain-link fencing, CCTV cameras record ballot-counting rooms and the exterior of the tabulation center, and a SWAT team is stationed at the main building where officials tabulate votes.

The harms from being forced to operate in this fortress-like environment are not limited to nonpartisan election officials. For decades, the sites of American democracy have been open to public view and often participation, allowing voters, volunteers, and party officials to observe where votes were counted and how they were tabulated. Now, MAGA strategists have begun to realize that those sites present soft targets for vigilante attacks. County and state officials’ understandable inclination to harden them has, lamentably, altered what once was an open, inviting process into one that, out of necessity, is more closed and policed. That, ironically, will further validate the vigilantes’ conspiratorial beliefs, as the tabulation of votes becomes a function conducted by “deep state” bureaucrats insulated from public oversight.

Interrupting Vigilantes’ Interstate Pipeline

Already, some numbers of Americans are seeking to leave vigilante-enabling jurisdictions, principally to obtain access to medical services. But the same MAGA lawyers and activists who deployed vigilantes to stamp out access to legal abortions in Texas (and surveil high schools to prevent transgender children from competing in women’s sports) are now targeting interstate travel. Under the guise of regulating “abortion trafficking,” Texas cities have enacted local ordinances that unleash vigilantes against individuals who use public highways to secure out-of-state abortions. Taking a page from Texas, Idaho has endeavored to make it a crime to help a minor cross state lines to seek

an abortion or obtain abortion medication. Still, blue states are not powerless to stop vigilantism affecting those seeking refuge. They also have the power to combat redstate vigilantism and the violence, cruelty, and democracy-distorting effects those practices have had on the nation as a whole.

A first step is to provide greater protections for those seeking sanctuary. Individuals forced to flee states because they have been targeted on the basis of their identity, because their kids are going to schools where teachers can’t teach Black history or let students use bathrooms that match their gender identities, or because they have a bona fide need for medical care that has been outlawed in the jurisdictions they are fleeing should receive relocation assistance and housing support. The principal argument for providing such supports is moral: Blue states owe duties to fellow Americans denied basic rights by the hollowing out of federal protections and red-state authoritarianism. But like most refugees, red-state refugees are likely to be an economic boon to the places they flee to over the long term. By making themselves inhospitable to those who do not conform to the edicts of white Christian nationalism, red states are depriving themselves of a valuable source of human capital.

The next order of business is protection against vigilantes for those within bluestate borders. The 2017 Unite the Right rally in Charlottesville, Virginia, offers an object lesson in what not to do. Reflecting on how right-wing militias were able to dominate the storied college town, then-Gov. Terry McAuliffe commented: “You saw the militia walking down the street, you would have thought they were an army … [They] had better equipment than our state police had.” To be sure, open-carry laws complicate efforts to counter Charlottesville-type gatherings. But even if states are precluded from disarming protesters by open-carry rules, many have little-used laws that ban private militias and empower state police to break up mobs. In moments when violence is likely to spike, blue-state attorneys general should set up specialized units to monitor and respond to organized threats to the civil rights of state residents.

Blue states also need to do more to protect the privacy of the short-term visitors who’ve come in search of health care and related medical services. Laws in Connecticut and Massachusetts prevent local courts from providing information or assistance to

Blue states owe duties to fellow Americans denied basic rights by red-state authoritarianism.

vigilantes using courts to go after individuals who cross state lines to secure reproductive or gender-affirming care. The coverage of such laws varies from state to state, however, and many jurisdictions have yet to adopt them. They should be enacted anywhere where MAGA lawmakers don’t control the state legislature.

Reconstruction Revisited?

Of course, blue-state pushback is simply one line of defense. Only the federal government has the authority to override state law under the Constitution’s Supremacy Clause and the resources and manpower to ensure that the targets of today’s vigilantism are protected. But, in part because of the MAGA stalwarts in Congress and on the federal bench, the U.S. government has been unable to lead the charge, even with a Democrat in the White House.

It is noteworthy that some of our most venerable civil rights statutes were enacted to address forms of state-backed vigilantism that closely parallel the legalized thuggery states are encouraging today. The Enforcement Acts of 1870 and 1871 granted federal protection to Black Southerners and their allies whom the Klan targeted in campaigns of racist terror. Section 6 of the 1870 act made it unlawful for two or more persons to conspire to “intimidate any citizen with intent to prevent or hinder his free exercise and enjoyment of any right or privilege granted or secured to him by the Constitution or laws of the United States.” Recognizing that state courts would nullify their federal protections, the acts

The Enforcement Acts of 1870 and 1871 granted federal protection against Ku Klux Klan attacks. They could be resurrected to prevent modern vigilantism.

expanded the federal courts’ jurisdiction to provide a fair forum in which to vindicate federally protected rights. Enforcement proceedings could be initiated not only by the Department of Justice (which Congress created in 1870 in part to better protect Reconstruction) but also by individuals whom vigilantes attacked.

To its shame, the Supreme Court has constricted the acts’ scope to a shadow of what the Reconstruction Congress originally intended. Moreover, the Court’s erasure of long-standing rights to bodily autonomy (and the vulnerability of a federally protected right to marry to future Supreme Court meddling) leaves gaps in the acts’ coverage. With no federally guaranteed rights to protect, the acts’ tools are a dead letter. Fixing those gaps should be a priority for Vice President Harris’s 100day legislative agenda if she pulls off a win in November.

But even in their current, hobbled form, the enforcement acts can be powerful tools against vigilante violence. Following the Unite the Right rally, the Enforcement Acts served as the backbone for a civil case

in which a jury levied millions of dollars of damages against the rally’s organizers. Although the jury ultimately found the defendants liable under state law, the case highlights the power of litigation brought under the acts, including in cases brought by government litigators. The defendants acknowledged during trial that a verdict would bankrupt them, significantly weakening their ability to coordinate future Charlottesvilles.

This month, a case using Section 2 of the third Enforcement Act heads to trial in Texas federal court, against the organizers of the Trump train that attempted to force a Biden campaign bus off the highway in Texas. Rejecting the defendants’ bid to avoid trial, Judge Robert Pitman wrote: “Although the methods of political intimidation may change over time and require adapting the [Enforcement] Act to new contexts, the conduct alleged here requires no such adaption; the Defendants’ alleged conduct is similar to a type of political violence that the Klan engaged in at the time of the Act’s enactment.” Judge Pitman cited a chilling 1877 case, United States v. Butler, in

which conspirators captured two Black men traveling on a public road and forced them “to get down on their knees, and … swear that they would vote the Democratic ticket.” Bringing more such cases would require the DOJ to recognize the vigilante threat emanating from red America for what it is, not to mention substantial investments of investigators and lawyers. Given the department’s plodding response to the January 6th insurrection, and Trump judges’ success in derailing Trump prosecutions, one might question whether the department has the gumption for this. But the Democratic Party is under new leadership. If Vice President Harris prevails in November, she has the opportunity to appoint new enforcement officials who can respond to MAGA vigilantism with the urgency it demands. n

David Noll is a professor of law at Rutgers. Jon Michaels is a professor of law at UCLA. Their book on the MAGA right’s revival of legal vigilantism, Vigilante Nation: How State-Sponsored Terror Threatens Our Democracy, will be published this October by Simon & Schuster.

America’s Judicial Divisions

Every major policy issue is now also a courtroom battle, decided in increasingly partisan settings. And there’s no end in sight.

By Hassan Ali Kanu

Mark Lee Dickson, one of the most quietly influential figures in America’s anti-abortion movement, gives off a slight air of resignation these days when he talks about the decades-long campaign to ban abortion nationwide.

Dickson has been on the front lines of the country’s so-called culture war over abortion, and the political fights and legal battles too, for years. Despite many recent wins, including the crowning achievement

of overturning Roe v. Wade in 2022, he is apparently beginning to grow frustrated with the ideological—or perhaps jurisdictional—limits of the movement he has helped lead.

In June, lawmakers in Amarillo, a staunchly conservative, deep-red city in the deep-red Texas Panhandle, rejected a proposal for a so-called “abortion travel ban,” one of the pieces of model legislation that Dickson, who uses the less euphemistic “abortion trafficking ban,” has advocated for. The law would have teamed up with an

existing state statute that allows Texans to sue people for “aiding and abetting” abortion. In Amarillo, it would have aimed to ban the use of city roads and highways to seek an out-of-state abortion.

“For that to be happening in a conservative city, with conservative leadership, it is quite concerning,” Dickson tells me. Even Republican presidential candidate Donald Trump has capitulated, once again, on reproductive health care, announcing in August that he is in favor of in vitro fertilization. The procedure that helps families

conceive also destroys some unused embryos, which hardcore anti-abortion activists equate with taking a life. “It does concern me that we’re seeing some in the Republican Party step away from a strong position on protecting the life of the unborn at conception,” Dickson says.

But the other distinct feeling you get when speaking with Dickson about his cause is a steely, unshaken resolve. After all, in his view, banning abortion altogether is about morality and saving lives, quite literally and simply.

“This is a battle we’re going to continue to fight at every level of government. It’s not something we’ll give up on,” Dickson said. “We’ve seen victories in some places, like Texas, Oklahoma, Arkansas, but other places that are controlled by liberal Democrats … we have to do something about that.”

The abortion battlegrounds have shifted in recent years, especially since Roe v. Wade was overturned. The Supreme Court’s conservative justices described their Dobbs v. Jackson Women’s

Health ruling, which revoked reproductive health care rights, as a decision to “return the issue of abortion to the people,” and, alternatively, to “their elected representatives” and “to the States.” Former President Trump has also made it a standard talking point to say that he appointed justices who rightfully returned the matter to the states. Yet, although the fight is often initiated by officials and the states, it is now squarely in the hands of the courts , and it’s being decided by politically appointed judges with lifetime tenure, rather than

sorted out through public debate and legislative processes.

That doesn’t apply only to the abortion issue. The same is true about many of our current and most heated political disagreements, including debates over minority civil rights, religious rights, gun safety, government aid, and more.

Red and blue states have been pulling further and further apart on policy as a general matter, enacting radically divergent laws and regulations. Republicancontrolled states are generally making it as difficult as possible for their citizens to vote, for example—the most basic issue of democratic governance—while Democraticled states are working to do the opposite. That kind of massive discordance in the laws between states gives enough cause for

concern, in and of itself. Yet we’re also seeing red states in particular relying on the courts more and more to reach beyond their borders to constrain or coerce citizens of other states, and make policy nationally.

That rising and aggressive trend is a result of the stunning successes that the conservative legal movement has achieved in its long-running mission to stack the federal courts with nakedly partisan conservative judges, driven by Republicans’ eager willingness to break the norms and rules of judicial appointment as well as legal decision-making, especially since former President Trump’s administration. Those dynamics have ushered in an era of unprecedented legal gamesmanship and policy chaos that is straining the coherence of our federal system, and is slowly but sure -

ly pushing the judiciary and the country toward a constitutional crisis.

The state of Texas is exemplary in this respect. As of last March, Texas alone had filed at least 29 federal court challenges seeking to block or change national policies implemented by the Biden administration during his term. In 2020, the state filed a lawsuit seeking to challenge and throw out the ballots of all voters in Michigan, Wisconsin, Pennsylvania, and Georgia—states that Biden won—on the basis of Trump’s lie that there had been fraud in the elections. It is already foreseeable that there might be interstate legal battles over whether people can be extradited and prosecuted in one state for “aiding and abetting” an abortion, even if the procedure took place in another state where it’s legal. Texas, again, currently

Right-wing activists have sought rulings in conservative courts that would ban abortion medications nationwide.

Red states in particular rely on courts more and more to constrain or coerce citizens of other states, and make policy nationally.

has a law on the books that hypothetically allows a Wisconsinite to sue a Californian for abetting a Texan’s abortion, as The New York Times put it in 2021. Similarly, we could see “clawback” lawsuits, or dueling litigation for damages in different states, for helping someone get gender-affirming care or for interfering with that care.

Americans generally have the right to sue for race discrimination under the Voting Rights Act—but not in Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota, or South Dakota. A coalition of Republican officials have successfully sued to revoke those rights from the residents of those states, even though officials in Minnesota, at least, were opposed. To put it differently, Minnesotans didn’t vote on the matter, nor did their elected officials in the statehouse or in Congress take any actions, but a coalition of attorneys general in neighboring states have nonetheless imposed these anti-voting policies on them.

Similarly, the EPA can no longer enforce certain key civil rights protections in Louisiana, where “Cancer Alley” is located, and at least 23 other red states petitioned the agency in April “to demand” that it cease enforcement within their borders too. That means that question will almost inevitably end up in the courts, and will touch states

that might be in favor of federal government action to prevent environmental harms and discrimination.

Besides the interstate aggression, we’re even beginning to see these dynamics pit court against court.

This past May, judges within the U.S. Court of Appeals for the Fifth Circuit, the strikingly partisan court that covers Louisiana, Mississippi, and Texas, were effectively engaged in unprecedented litigation against co-equal federal courts in Washington, D.C., over the right to hear a high-stakes case about limits on the late fees credit card companies can charge—even though the rule was written in D.C., most of the organizations that sued were based in D.C., and most of the lawyers on the case were also based in D.C.

We’re near enough to the brink of this coming crisis that the government is beginning to act.

The Justice Department and its newly established Reproductive Rights Task Force stepped into a lawsuit challenging Alabama’s abortion travel ban in August, and laid out the matter plainly. The federal government was intervening, the DOJ said, because it has an obligation to defend “sovereign interests of the United States, including preserving the proper functioning of the federal system and ensuring that one State does not improperly intrude into the affairs of other States.”

That’s a task that will grow increasingly difficult, and there are no easy answers in sight.

The rise of interstate aggression in the courts can be attributed to a number of complex factors. But one of the simplest contributors is partisan polarization and an increasingly hostile approach to politics, mostly on the Republican side.

The legal scholar Katherine Florey observed in a 2023 paper on the “new landscape of state extraterritoriality” that historically, concerns about states potentially extending the reach of their policymaking power revolved around economic protectionism and other actions to favor a state’s own citizens. That would include laws mandating prices for products that are no higher than in other states, or a law giving in-state claimants advantages when seeking insurance payouts.

But concerns today tend to revolve around state laws that convey no financial benefit on their residents, but instead

express, safeguard, or seek to advance deeply held values, Florey wrote. Those kinds of acts are more likely to result in further clashes and conflict, simply because advocates are often motivated by moral values and political beliefs that cannot tolerate people choosing different policies—whether democratically, via their own local ballot, or through traveling to another state.

One salient example Florey uses is the history of no-fault divorce. States adopted very different rules on divorce, and people gradually began seeking divorces in more liberal jurisdictions to get the result they preferred. That prompted thorny questions about legal reciprocity and the status of the marriage when those people entered a more conservative state.

“There was just a lot of legal chaos for decades, and it didn’t really end until nofault divorce became popular and adopted by all 50 states,” Florey told me.

Dickson addressed this issue bluntly when I asked how he and his allies should respond to the fact that most Americans, including in red states, seem to prefer broader access to abortion than under most Republican-backed proposals, and certainly broader than under the kind of no-exemption policy Dickson himself favors. Half of all Republican women voters think abortion should be legal in all or most cases, with a larger share—56 percent—among Republican women voters aged 18-49, according to a July poll by the Kaiser Family Foundation. His answer reveals an unwillingness to allow those who don’t share his values to live according to their own.

“We can’t have anti-abortion states and abortion access states,” Dickson replies. “That wouldn’t be a problem if unborn children were not human beings, but unborn children are human.”

In Amarillo, Dickson and his allies’ efforts went much further than the nowfailed lobbying effort to get an “abortion trafficking” ban enacted. His attorney and partner Jonathan Mitchell, a former Texas solicitor general, urged the mayor to enact the ordinance explicitly so that they could get into federal court, in order to obtain a ruling that would have banned the abortion medication mifepristone nationwide. Mitchell believed that passing the local ordinance would give the city a right to intervene in a still-pending lawsuit over the availability of the drug. When those efforts also failed, Dickson pivoted to a campaign

to put the question of an abortion travel ban on the ballot; Amarillo residents will vote directly on the question this coming November. Voters may very well agree with their city council, and reject the proposed ordinance. But that won’t settle the matter for people like Dickson and many other anti-abortion advocates.

Our era of interstate aggression is also a result of conservatives’ willingness to exploit structural and procedural vulnerabilities in the judiciary, and to break norms and rules, starting in the appointment process.

Even though the president appoints and the U.S. Senate confirms federal judges for both blue and red states, Republicans’ unduly partisan approach has led to a similarly partisan judiciary.

Historically, under the blue-slip process, Judiciary Committee chairs wouldn’t move federal court nominees unless both homestate senators gave their approval, giving them a powerful veto tool. They made their decision by sending a blue slip of paper to the chair.

The process isn’t required by the Constitution, but it has become customary, a self-imposed rule or norm. But Republican senators abandoned that practice for appeals court judges during the Trump administration, and Trump went on to nominate a spate of unusually extreme, unqualified, and partisan judges, causing a swing to the extreme right on the appeals courts, even in blue states.

Generally speaking, contemporary Democratic administrations consult with the American Bar Association, which rates candidates based largely on legal experience, before making judicial nominations. Republicans, on the other hand, do not, and generally leave vetting to the partisan, rightwing Federalist Society. During his four years in office, Trump nominated more people rated “not qualified” than any other president since the ABA began collecting data in 1989, while the last Democratic nominee to be rated “not qualified” was selected in 1994, under President Bill Clinton, according to an analysis by Ballotpedia.

At one point, three of Trump’s nominees withdrew in just ten days, including a ghost hunter who failed to disclose blog posts supporting the early Ku Klux Klan, and a lawyer who was unable to answer a single question about basic lawyering during

his confirmation hearing. To put it plainly, Trump repeatedly nominated and the Senate repeatedly confirmed nominees during his term whose names would have never reached anywhere near the Oval Office in previous administrations, even under other Republican presidents.

Democrats also did away with the blue slip for appeals courts under Biden, but they have not filled red-state appeals court seats with the same disregard for home-state interests—or basic qualifications. Republicans have confirmed 17 appellate judges over the objection of a home-state senator, while Democrats have confirmed three over objection, CNN reported in August. And district court judges continue to be held to the blue-slip standard.

What this means is that plaintiffs can judge-shop, or handpick preferred judges in high-stakes cases.

Federal court districts are created by federal law, but the allocation of cases within those districts is up to the judges who sit on those courts, much like questions of discipline and other aspects of judicial governance. Ultimately, the buck stops at the Judicial Conference, the Supreme Court, and with Chief Justice John Roberts.

Some larger states subdivide their districts into divisions by geography, to make travel to the courthouse more convenient. As a general matter, case assignment is randomized via a lottery system, but there are 35 divisions around the country that have just one or two judges—concentrated in Texas in particular—and the rules make it easy to essentially handpick a preferred judge in those divisions.

In the post-Trump era, those judges are increasingly likely to abuse the normal rules of legal decision-making, especially the “universal injunction” remedy—the power to bar the federal government from enforcing a policy or law against the parties that brought the lawsuit, as well as all other people and entities. Together, those dynamics have created opportunities not only to judge-shop, but to effectively engage in results-shopping as well, enabling judges in a few conservative states to engage in national policymaking.

Coalitions of Republican states have used strategic litigation in red states to successfully frustrate or block a litany of national policies that their elected officials oppose, including discharging student loan debt for millions of Americans, and much of Presi-

Trump nominated more people rated “not qualified” than any other president since the ABA began collecting data in 1989.

dent Joe Biden’s immigration agenda. In just the past few months, Republican-led states filed lawsuits to block Biden’s second student debt relief plan, a new executive order that enlists federal agencies in helping Americans register to vote, a new Department of Labor rule requiring investment advisers to act in the best interest of their clients, and a new program giving legal protections to undocumented spouses and children of U.S. citizens, just to name a few.

Fourteen of Texas’s 29 challenges to Biden administration policies were filed in jurisdictions where the assignment to a specific judge is guaranteed, including six in the single-judge division of Amarillo—even though there’s a federal courthouse in Austin about a five-minute drive from Attorney General Ken Paxton’s office.

Those six cases were guaranteed to be heard by Judge Matthew Kacsmaryk, a former anti-abortion activist and ultraconservative Trump appointee whose rulings in major cases unfailingly enact conservative policies.

In fact, lawyers in Paxton’s office have effectively admitted on the record that they are repeat customers of particular divisions because they want their cases heard by Trump appointees like Kacsmaryk and Judge Drew Tipton of the Southern District

Conservative judge Matthew Kacsmaryk is the only federal district court judge in Amarillo, Texas, hearing all cases right-wing plaintiffs file there.

of Texas, Corpus Christi Division (where there are four judges).

The same goes for a business trade group representing hedge funds and private equity firms, which has literally set up shop in Texas to avail itself of those districts’ friendly judges. (That trade group recently won a case weakening the Securities and Exchange Commission’s ability to regulate hedge funds.)

Some of those courts have been criticized by litigants and commentators for taking up cases even when the connection to Texas is dubious at best. In response, the Northern District of Texas—which includes Amarillo’s single-judge division and is likely the most partisan district in the country— announced in June that it would delay all orders to transfer cases out of the Fifth Circuit’s jurisdiction, unless agreed to by all parties in the case.

If you take this one level up, where the

rulings from Judges Kacsmaryk, Tipton, and other Texas jurists are heard, you get to the ultraconservative Fifth Circuit.

Of the 17 active judgeships on the Fifth Circuit, 12 were appointed by Republican presidents, and the other five from Democrats were mostly appointed under the old blue-slip rules.

Since 2017, approximately 63 percent of all U.S. Chamber of Commerce lawsuits challenging federal regulations have been filed at the Fifth Circuit. Republican-led states often intervene in those cases on behalf of corporations and against federal regulation.

The federal agencies have taken losses in 22 out of 26 such cases since July, after the Supreme Court transferred much of the agencies’ regulatory power over to the courts. And Republican-appointed judges decided virtually all of those rulings against agencies, according to an analysis in Sep -

tember by Bloomberg Law. Most of those decisions, the analysis stated, “are in cases involving Republican-led states, conservative advocacy organizations, or business groups that sought friendly forums to challenge Biden administration rules.”

The asymmetry is important here: Judge-shopping and results-shopping is a distinctly Republican phenomenon. Democratic and Republican attorneys general and other plaintiffs have long engaged in what can be described as forum-shopping: directing federal litigation to a particular district to create higher odds of getting either Democratic or Republican appointees assigned to the case. But only conservatives are regularly steering their cases to single-judge divisions outside of the attorney general’s home courthouse , as the legal scholar Stephen Vladeck has pointed out, and to particular judges whose priors, biases, and values are well known.

Interstate aggression is further compounded by judges’ willingness to abuse procedural rules and norms of decision-making.

Nationwide injunctions, which had not been used by judges until the 1960s, are becoming more common, and they are more commonly used for partisan ends, according to analysis in April by the Harvard Law Review.

Between 2001 and 2016, slightly more than half of nationwide injunctions against Bush- and Obama-era policies came from judges appointed by the opposite party from the administration whose actions were blocked. During Trump’s presidency, those numbers shot up to 92 percent; and every single nationwide injunction blocking President Biden’s policies has been issued by a Republican-appointed judge, often in the Fifth Circuit.

The Harvard Law analysis pointed out that the spike in the “use of nationwide injunctions during the Trump Administration could reflect judicial responsiveness to the unprecedented degree to which President Trump tested the limits of presidential power.”

What’s been happening in the courts since Trump’s election and his flurry of judicial appointments, though, is more concerning. Despite some complexity, the most important factor here seems to be that there are simply many more judges in the post-Trump era who are willing to break procedural rules and norms, and engage in unprincipled legal reasoning in order to enact conservative policy goals, starting at the very top.

To that end, and by virtue of their position as the heads of the federal judiciary, the Supreme Court’s conservative justices are perhaps the worst offenders.

As a general matter, the Supreme Court invited a flood of foreseeable litigation when it opened the door to a patchwork of anti-abortion statutes in Dobbs, including red-state laws like in Texas that seek to exert power extraterritorially.

The same goes for the Court’s decision in New York State Rifle & Pistol Association v. Bruen , which delivered a historic expansion of individual rights to guns, and spurred numerous lawsuits by Republican states to block federal gun regulations, including cases that inevitably make it easier to circumvent gun control laws in blue states.

More importantly, the Court’s Republican-appointed majority has grown increasingly partisan, and now routinely defies its own procedural rules and the basic, fundamental principles of legal reasoning, especially in cases with national political implications.

The Supreme Court’s Republican majority, led by Chief Justice John Roberts, has grown increasingly partisan.

Finding solutions to this impending judicial crisis might require looking outside the courts.

Legal scholars William Baude and Stephen Vladeck have popularized the concept of the “shadow docket,” and laid out how the Court increasingly relies on its emergency procedures to decide questions of national importance, from capital punishment to immigration and census administration—almost always along partisan lines and almost never during an actual emergency situation.

Research has since shown that the Court’s abuse of those procedures has served partisan aims. The Trump administration asked the Court for emergency relief an unprecedented 41 times, and received it in an equally unprecedented 28 cases, for example. By contrast, there were just eight such requests, and four wins, during all 16 years of the Bush and Obama administrations, according to research by Vladeck. All of the liberal justices and even conservative Chief Justice John Roberts have criticized their colleagues for these practices.

The Court is also agreeing to hear cases via a procedure that bypasses courts of appeals and takes up cases directly from the lower district courts more often than ever before, according to new research published in March by Vladeck. The Court did not take up even one case via the “certiorari before judgment” process between August 2004 and February 2019. But it granted at least 21 petitions for accelerated appeals since then, according to Vladeck’s research. And the justices more regularly decide the substantive merits of a case when

they’re actually supposed to be considering only preliminary, procedural matters. Just one ruling relied on those truncated processes during the Court’s 2017 and 2018 October terms, but there were six in 2020 and eight in 2021, according to Vladeck. Virtually all of them came in the biggest and most politically consequential cases, including Republican challenges to student loan forgiveness and the Biden administration’s immigration policies, an affirmative action case, and a case challenging racial gerrymandering in Alabama.

Finally, a striking number of the Court’s recent rulings have left myriad avenues for legal gamesmanship. The court has made a mockery of stare decisis , the bedrock legal principle that judges generally have to abide by long-standing precedents, in Dobbs, in Bruen , and in Loper Bright Enterprises v. Raimondo, which shifted power to interpret regulations from agencies to the courts. And the justices have invented out of whole cloth a number of interpretive rules that offer no real guidance to lowercourt judges, and seem to only increase the judiciary’s—and ultimately the Supreme Court’s—discretion and power.

In short, the Supreme Court’s current conservative majority has set an awful example for the lower courts. In his March paper, Vladeck observed that “the more that the Court acts in defiance of the formal constraints” on its processes and decision-making, “the more that its behavior encourages, if not affirmatively invites, similar behavior by courts of appeals when faced with similar postures … In a world in which the justices were more aggressively enforcing the appropriate standards and norms of appellate review, it would be a lot easier to demand the same from their colleagues below.”

Today, conservative litigants seeking to overturn Democratic policies can take a familiar path, from a district court in Texas, to the Fifth Circuit, to the Supreme Court, and know that they will almost certainly be heard by judges who share their partisan zeal at every step of the way. That gives red-state officials and their allies the ability to enact their values as national policy, without ever winning a national majority of the popular vote, and without ever holding Congress or the presidency.

By now, there has been near-universal condemnation of judge-shopping and support for randomized case

assignment, including from members of Congress, the American Bar Association, and even some of the Supreme Court justices themselves.

The Judicial Conference in March issued advisory guidelines encouraging random assignment, though they weren’t binding. And Democrats have introduced legislation to require randomized assignment.

Yet the loudest voices against that commonsense reform are the primary offenders: judges in the Fifth Circuit, and some of the congressional Republicans who advocated for their confirmation, including Sen. Mitch McConnell (R-KY), a central architect of Republicans’ judicial takeover. The Northern District of Texas has already rejected the suggested case assignment reforms.

Legislative fixes run into the problem of a deeply polarized, generally nonfunctional Congress, as well as the fact that the Supreme Court itself—which deserves significant blame here—will still have power to review congressional legislation and executive action, including moves to govern the Supreme Court.

Indeed, finding solutions to this impending judicial crisis might require looking entirely outside of the courts.

In her research, Florey has found that some long-festering conflicts between state laws have simply remained unresolved, and continue to cause (minor) friction between the states. She told me that the current degree of division among Americans leaves her unsure whether court reform could even address the problems of interstate aggression.

“Really, the only fundamental way out that I see is not law itself, but a greater national consensus,” Florey said. “Sometimes, these legal clashes are resolved by everyone moving in one direction, although it seems hard at the moment to foresee that happening in the area of abortion.”

As it happens, Americans appear to be pulling further apart even on the once-settled issue of no-fault divorce. Conservative lawmakers in states like Oklahoma, Texas, and Louisiana are calling for an end to nofault divorce, and even Republican vicepresidential candidate JD Vance has spoken out against it.

It’s unclear whether a majority of Americans are still in favor of no-fault divorce. At any rate, we can be certain that the issue will ultimately be decided in court. n

Falling ClimateInto Disaster

Red and blue states look past each other on issues like carbon emissions, power generation.

By Gabrielle Gurley

The energy sector has largely avoided the vicious public rancor that defines high-profile issues, from immigration to reproductive rights. But the collective action warranted by this planetary catastrophe has been slow to materialize across all 50 states. In most cases, Americans know what to do—decarbonize, harness renewables, deliver advanced infrastructure upgrades, and much more.

But these responses aren’t happening fast enough. As the parting of the ways between red and blue lawmakers on energy policies intensifies, the resulting intrastate disputes compromise goals that affect the entire country, endanger the lives of millions of people, and provide the incredible scenes of Republican lawmakers publicly celebrating the arrival of federal dollars for state climate and energy projects, while doubling

down on trying to undo the very laws that make their press conferences and groundbreakings possible.

The resistance to curbing carbon dioxide emissions through a national cap-and-trade program is still mired in partisan arm wrestling over whether the planet is actually in peril or the fossil fuel companies are. And unfortunately for the planet and its inhabitants, the greenhouse gases from fossil fuels burned in Oklahoma or Wyoming don’t stay in Oklahoma and Wyoming: They affect all Americans, and all citizens of the world.

Federal inaction on greenhouse gas emissions has convinced a collection of mostly blue states—Maine, New Hampshire, Vermont, Massachusetts, Rhode Island, Connecticut, New York, New Jersey, Pennsylvania, Delaware, and Maryland—to achieve CO2 emission reduc-

tions in the electric power sector through the Regional Greenhouse Gas Initiative (RGGI). Launched in 2009, it is one of the most successful climate programs in American history.

RGGI is a mandatory cap-and-trade program for fossil fuel power plants. Participating states price power-sector emissions to compel utilities to come up with strategies to lower their emissions and keep them under a regional cap. States in the program have decreased emissions by nearly 50 percent (compared to 22 percent in nonregulated states), and have used the revenues from the allowances to fund a variety of clean-energy, resilience, and energy efficiency programs, among others.

While Eastern states were signing up to join RGGI, a bipartisan group of Midwest governors launched the Midwestern Greenhouse Gas Reduction Accord in 2007, which they

envisioned as the first step toward a regional cap-and-trade program. It dissolved three years later, due, in part, to the first gasp of right-wing reactionism, the Tea Party movement. Republican attorneys general have also developed a coordinated strategy designed to undermine progress in other areas, such as taking aim at environmentally friendly corporate environmental, social, and governance (ESG) programs (Robert Kuttner analyzes the ESG battle in this special issue). But Republican politicians in purple states along the East Coast have turned to other strategies to thwart RGGI’s expansion.

In their public messaging, opponents argue that the program constitutes an illegal tax. It’s a gambit that RGGI opponents have tried before. A 2013 challenge to New York’s participation in RGGI , Thrun v. Cuomo, rested partially on an illegal tax argument. Former New Jersey Gov. Chris Christie, a

Republican, had made the same claim in 2011, when he plucked New Jersey out of the pact. The state rejoined RGGI under Gov. Phil Murphy, a Democrat, nine years later.

Pennsylvania is technically a member of RGGI, though its participation has been paused pending the outcome of litigation over former Democratic Gov. Tom Wolf’s 2020 decision to join by executive order. The state’s Commonwealth Court determined that participation in RGGI was, in part, an unconstitutional usurpation of the General Assembly’s authority to tax.

Gov. Josh Shapiro, Wolf’s Democratic successor, convened an RGGI Working Group of environmental, consumer, industry, and labor stakeholders to pore over Pennsylvania’s energy policies. “While we didn’t reach perfect consensus,” says Jackson Morris, who directs state power-sector policy at the Natural Resources Defense

Council and was a co-chair of the working group, “we did reach consensus that if we’re going to reduce emissions from the power sector in Pennsylvania, that a capand-invest structure is the best way to do it.”

Shapiro has appealed the lower-court ruling to the state supreme court. But even if Pennsylvania prevails, Shapiro, a once and future presidential aspirant, has already hedged his bets with his own proposal, the Pennsylvania Climate Emissions Reduction Act (PACER), which would pull the state out of RGGI

Shapiro may hope to appeal to local Republicans with his state-centric plan. But Republicans in the legislature, who control the state Senate by six seats—and the legislature may remain closely divided after November—aren’t buying the governor’s reasoning. They insist that a cap-and-trade program is still a tax that would endan -

ger the state’s coal-fueled power plants and raise costs for ratepayers. If the Pennsylvania Supreme Court rules in favor of the environmental groups, Pennsylvania returns to RGGI. But whether Pennsylvania stays in or bows out is anybody’s guess.

In 2020, the Virginia General Assembly voted to join RGGI. “RGGI gives you those guardrails and that certainty to just make sure your power sector stays on track, and it raises hundreds of millions of dollars to benefit your residents of your state,” says Morris. “It’s not as if Virginia has a huge fossil fuel industry at this point, either.”

But when Republican Glenn Youngkin moved into the governor’s mansion a year later, he maneuvered to pull Virginia out. By 2023, he succeeded. In May, state lawmakers failed to agree on returning to the program and sacrificed it in order to pass the state budget. Environmental groups filed a lawsuit, which is now before the Virginia state supreme court; it hinges on whether the governor had the ultimate authority to withdraw from the program.

“As it’s been designed, [RGGI] is flexible enough to allow states to enter and exit as situations changed in those jurisdictions,” says Phelps Turner, a senior attorney with the Conservation Law Foundation Maine. “Obviously, it’s not ideal to have states entering and exiting on a regular basis, but there’s flexibility—the program can continue with or without any individual state.”

But after Virginia exited RGGI, it didn’t take long for the damage to appear. Emissions jumped and the revenues from the sale of allowances evaporated, sending state flood resilience programs in places like coastal Hampton Roads and residential energy efficiency plans for low-income ratepayers off to search for new funding. Another benefit lost: keeping down emissions from Northern Virginia’s data center market, the world’s largest, as it expands. “To stay on track to carbon neutrality,” attorney Ivy Main, a local environmental advocate, wrote in a Virginia Mercury opinion column, one option is having “data centers pay their own way, both literally and carbon-wise.”

If Republicans in Pennsylvania and Virginia have succeeded in slowing down progress on greenhouse gas emission reductions, North Carolina Republicans, who have a supermajority in both chambers of the state legislature, have blocked it. In 2023, state lawmakers voted to prohibit state agencies and the governor from mandating that pub -

ERCOT transmission lines in Sugar Land, Texas

lic utilities join cap-and-trade frameworks or participate in frameworks that require expenditures on carbon allowances.

Two blue states have shown more interstate climate leadership, and it’s no surprise that the heavy hitter is California, the second-highest carbon-producing state in the country. In 2011, California launched the Western Climate Initiative, a multi-sector cap-and-trade program and the fourth-largest globally, along with Quebec. In March, Washington state announced its interest in joining the framework, which goes beyond fossil fuel power plants to include industrial plants and fuel distributors.

However, like Pennsylvania and Virginia, Washington’s participation is a question mark. This time, the deciders are voters, courtesy of a ballot question funded by Brian Heywood, a conservative hedge fund manager (who has funded five other November ballot questions). The referendum would repeal legislation that required Washington to investigate links with other cap-and-trade programs like California’s. Heywood calls cap-and-trade programs “a regressive tax.”

While the RGGI states and California have taken major steps to reduce their carbon footprint, Texas is the runaway leader in carbon emis-

sions—and the biggest source of emissions is the Electric Reliability Council of Texas (ERCOT), the Texas electric grid. But cutting carbon emissions in the Texas power sector has taken a back seat to ensuring that the power actually stays on.

Many Texans steer clear of linking weather extremes to climate change, but just about everyone has views on extreme weather and ERCOT. “Now we’re talking about surviving floods and preparing ourselves for worse droughts, and we’re talking about people’s family members and neighbors that died in freezes,” says Rep. Greg Casar (D-TX). “So, it’s much less theoretical now.”

The severe 2021 winter storm that knocked out power for nearly three weeks killed 210 people, and led to as many as 700 indirect deaths. The summer of 2023 was second only to 2011 as the hottest summer on record: The threat of rolling blackouts did not materialize, but the system teetered close enough to the edge on September 6 when ERCOT officials declared an energy emergency.

Texas is an extreme outlier, even among red states: Every other state in the Lower 48, whether red or blue, obtains electricity through the two major power grids, the Eastern and Western Interconnections. But Texas has its own grid. For decades, ERCOT has walled itself off from the rest of the country to evade Federal Energy Regu-

latory Commission (FERC) regulations that apply to interstate electricity transmission. So when electricity demand spikes on the grid, which covers 75 percent of the state’s land and 90 percent of its electric load, ERCOT can’t access enough emergency power from grids in neighboring regions. What has made the situation worse for the average Texan is that El Paso, sections of East Texas, and most of the Panhandle, which have connections to electric grids beyond the state’s borders, have power during ERCOT blackouts.

Texas has made tremendous progress in diversifying its electricity resources beyond oil and natural gas. The state is the largest wind producer in the country and the second-largest in solar, and it plans to build 35 more gigawatts of clean energy over the next 18 months, exceeding the total of the next nine states—combined. Systems that incorporate renewable energy into their generation strategies between regions provide consumers with access to energy at lower costs. But even though Texas has an abundance of renewable energy, only about 30 percent of its power comes from clean sources, compared to 50 percent in California. Canary Media estimates that Texas’s grid emits more carbon than the national average. ERCOT can implement changes, such as laying new transmission lines, faster than it could if FERC were involved, according to Doug Lewin, a state energy consultant who publishes The Texas Energy and Power Newsletter. But linking to the national grid could also help Texas export power, par -

ticularly clean power, to other states. “That would be economically important for the state, and it could help us meet our climate goals nationwide,” says Casar, who has introduced a long-odds proposal to connect Texas.

As the climate crisis forces the country to come to terms with its archaic electric grid, some 30 million people in Texas have been left out of proposals like the BIG WIRES Act, which puts FERC at the core of interregional transmission plans that would modernize capacity for regional power transfers. “If you have a Texas-shaped doughnut hole in your national strategy, that’s going to be a problem,” says Casar, who as an Austin city councilor spent time during the 2021 crisis handing out blankets to residents. When the freshman lawmaker got to Capitol Hill, he expected to find a bill that would address the ERCOT problem. It didn’t exist.

Casar introduced his Connect the Grid Act bill in February. The bill would mandate connecting ERCOT with regional transmission organizations, bring Texas under FERC’s jurisdiction, and study interconnections with Mexico. An MIT evaluation of the legislation concluded that ERCOT would see increases in its annual costs (through investments in wind), but also increases in revenues as a clean-energy exporter, and reductions in emissions. Most importantly, as high as 80 percent of households could avoid outages in a 2021-type storm. “Clearly, they are giving up reliability for not interconnecting,” says MIT ’s Christopher Knittel, one of the authors of the study.

ERCOT with up to 3,000 megawatts of power through a transmission line from the Texas border through northern Louisiana and Mississippi to connect with the southeastern grid run by the Midcontinent Independent System Operator (MISO), which serves 15 central states and Manitoba. The project, which got a dispensation from FERC that did not compromise ERCOT ’s status, did raise the hackles of the energy behemoth Entergy, which serves the two states. Louisiana has approved the project, but Mississippi lawmakers have taken up the Entergy refrain that the connection would increase prices for state consumers.

Texas isn’t doing nothing. For example, the Texas Commission on Environmental Quality has created a greenhouse gas inventory and reduction plan. But the turn to natural gas is a worrisome development, as is the state’s interest in moving federal emissions dollars to highway construction. The blue-state moves are significant, to be sure, but one red state’s countermoves are serious obstacles to real progress.

Red-state rhetoric and obstructionism runs hot when it comes to “illegal taxes” and keeping the feds out of red-state business. But when federal money is on the table, it’s all puppies and kittens. Republican states lined up for the Infrastructure Investment and Jobs Act’s about $65 billion in cleanenergy and power funds: Seven of the top ten beneficiaries were red states, with Wyoming first and Texas second in the queue.

Red-state obstructionism runs hot until there’s federal money on the table: Then it’s all puppies and kittens.

ERCOT does rely on small interconnections, two with the Eastern grid and two with Mexico. But the more powerful connections that would improve reliability would lead to FERC oversight. In 1976, one power utility in West Texas tripped that wire and connected to Oklahoma in the early-morning hours, an episode known as the Midnight Connection. When other utilities found out, they ordered their plants to disconnect. After the public utilities commission shut it down, a state court backed them up. Would Texas lawmakers give in after new crises? “If you’re talking about complete integration, like east-west [interconnections] and ERCOT, where there is no more ERCOT market, it’s all mixed together and now everything’s FERC jurisdiction?” says Lewin. “There’s pretty widespread opposition to that.”

ERCOT needs some backup. The Southern Spirit Transmission project would provide

Not a single Republican voted for the Inflation Reduction Act, the largest climate and energy package in American history. Republican congressional districts, however, reeled in about $107 billion for 201 projects. South Carolina took home the largest redstate award, $14.5 billion for 27 projects creating nearly14,000 jobs. Taken together, the IIJA and the IRA are the starkest examples of willful indifference to the climate crisis and its ramifications for electricity consumption. Republicans aren’t done yet: They have voted more than 50 times to repeal the IRA in part or in its entirety.

Red states appear determined to revel in these dark arts of divide-and-conquer politics—at least until the climate crisis intensifies to the point of such intense and cascading natural or human-generated catastrophes, or both, that red-state lawmakers will have little choice but to bow to public demands for constructive action to simply survive. n

The Truth About the Parties and Labor

You need only look at the state level to understand who supports workers and who doesn’t.

By Sharon Block

and

Benjamin Sachs

One of the more surprising themes to emerge in this election cycle is the question—sometimes asked earnestly, other times in biting disbelief—of whether the Republican Party is becoming pro-union. A representative New York Times headline asks, “Can the G.O.P. Really Become the Party of Workers?” answering that “A new generation of Republicans is learning to love labor ”

The Republican National Convention invited Teamsters President Sean O’Brien to speak at the first night, and he praised vice-presidential nominee Sen. JD Vance (R-OH) for walking a United Auto Workers (UAW) picket line.

Sen. Josh Hawley (R-MO)—he of the famed raised fist on January 6, 2021—also joined UAW picketers and went on to pen an opinion piece in Compact magazine in which he called for “bipartisan labor law reform.” His complaints were not unlike what you’d hear from many readers of The American Prospect, lamenting that “thou-

sands of Americans have voted to unionize in elections but can never get a contract done, often due to corporate tricks. How can we let that stand?” Hawley concludes that “unions are a vital piece of the fabric of a nation that depends on working people.”

There are many ways to figure out whether Republicans are serious about welcoming unions, and much of the evidence for “no” has been pointed out already. A few weeks after the Republican convention, its presidential nominee Donald Trump praised Elon Musk’s decision to fire striking workers. Not a single Republican senator supports the PRO Act, a law that would actually do what Hawley says he wants. In a short time in the Senate, Vance has established a record of opposition to pro-labor NLRB nominees, and voted with his fellow Republicans to kill the Board’s critical rule on joint employment. The list goes on and on.

But there’s another important window into what the GOP believes about workers and the

labor movement: what’s been going on at the state level over the last year. Just as Vance, Hawley, Sen. Marco Rubio (R-FL), and a handful of other Republicans in Washington have been talking about supporting unions, GOP leaders at the state level have been deploying their governing power to try and kill them. This may strike some readers as odd. After all, labor policy is supposed to be the exclusive province of the federal government. But in practice, this is decreasingly true. In fact, both red and blue states are pushing the boundaries of federal labor preemption law—which says that questions of union organizing and collective bargaining are off-limits to state governments—and enacting policies that either hinder or facilitate unionization, depending on the party doing the enacting. States also have the discretion to set labor policy for their own public-sector employees, and have taken the initiative there as well. So contemporary developments in state labor policy provide

a great way to figure out where the two parties actually stand on the union question. And it’s pretty clear that they stand in the same position the parties traditionally have: with Democrats supportive of unions and Republicans opposed to them.

Let’s start with the red states. While Hawley and Vance bragged about visiting the UAW picket line, six GOP governors engaged in a vigorous campaign to thwart the UAW ’s organizing drive among automakers across the South, with a mix of propaganda and actual legislation. On the propaganda front, the six governors—Kay Ivey (AL), Brian Kemp (GA), Tate Reeves (MS), Henry McMaster (SC), Bill Lee (TN), and Greg Abbott (TX)—drafted an open letter that could have come from the National Right to Work Committee.

It opens with a warning, professing concern “about the unionization campaign driven by misinformation and scare tactics that the UAW has brought into our states. As Governors, we have a responsibility to our constituents to speak up when we see special interests looking to come into our state and threaten our jobs and the values we live by.” And it closes with a very clear statement of the GOP governors’ position on unions: “We want to keep good paying jobs and continue to grow the American auto manufacturing sector here. A successful unionization drive will stop this growth in its tracks, to the detriment of American workers.”

The attack didn’t stop with tough talk. Three GOP trifecta states—Alabama, Georgia, and Tennessee—enacted legislation directly aimed at undermining the UAW and workers’ ability to organize unions. Under the new

laws, all modeled on a bill shopped by the notorious right-wing policy shop known as the American Legislative Exchange Council (ALEC), any corporation that wants to receive economic incentive funds from the state must agree not to respect the results of a card check, whereby a majority of workers at an employer sign cards in favor of unionizing. In simple terms, these laws dictate that any firm wanting state economic development money must waive their federal labor law right to recognize a union based on cards signed by its workers.

Since card checks are the most effective way for workers to organize today, this bill takes a swipe at many unions considering organizing in the South. But the bills are of special relevance to autoworkers. Why?

Because the collective-bargaining agreements the UAW won with the Big Three, following last year’s historic strikes, commit those automakers to respect the results of card checks at their electric-vehicle and battery plants. These laws aim to prevent just that, since many of those plants are in the South, like Ford’s proposed BlueOval plant slated for Tennessee. (We should note that in September, a GM battery plant in Spring Hill, Tennessee, recognized UAW representation after a majority of employees signed cards. That battery plant’s money from the state of Tennessee wasn’t at risk, because it was granted before the passage of HB 1342, and is therefore grandfathered in.)

It’s not just the autoworkers who have been targeted by the GOP. Public-sector workers and their unions remain the recipients of particular GOP hostility. In Florida, for example, the state legislature recently enacted a “double whammy” set of laws that aims to make it difficult if not impossible for unions to function. One law requires decertification of public-sector unions that can’t certify they are collecting dues from 60 percent of membership-eligible workers, while the other law makes it illegal for those unions to collect dues through payroll deductions from those same workers. Florida lawmakers thus set up a hurdle for unions that they then made it exceedingly difficult to clear. The result? Sixty-three thousand Florida workers had their unions decertified in the last year, accounting for an 11 percent decline in union density in the state.

Republicans in Iowa tried to go even further then Florida, by requiring decertification of public-sector unions if the employer failed to submit a list of the employees covered by an expiring collective-bargaining

agreement. Had this law not been blocked by union opposition, it would have given employers an obvious mechanism for eliminating employees’ right to unionize.

The story in blue states has been quite different. Governors and legislatures are enacting new policies to expand organizing rights and foster empowerment for workers. Take Minnesota as one leading example. In 2023, the Minnesota legislature passed and Gov. Tim Walz (currently the Democratic vice-presidential nominee) signed a bill that included the following slew of worker rightsenhancing and power-building measures:

Banning captive-audience meetings: Employers can no longer mandate that their employees be subject to meetings or presentations about the employer’s views on unionization (or religion or politics). This removes one of the most widely used and effective unionbusting tools from the employer toolbox.

Expanding bargaining subjects for teachers: Public school teachers can negotiate over staff-to-student ratios, effectively making staffing levels a mandatory subject of bargaining.

Worker voice mechanisms in setting labor standards: This creates several new channels for worker voice, on topics ranging from wages to safety to productivity monitoring. For example, wages and benefits for workers in the nursing home sector will now be set by the Nursing Home Workforce Standards Board, which includes representatives of both workers and the industry. As part of a broad effort to protect workers from ergonomic injuries in high-risk industries like meatpacking, warehousing, and health care, employers in those sectors will have to come up with programs to reduce those kinds of injuries. These ergonomic programs must be developed by committees that include workers and union representatives.

Providing information to warehouse workers: Companies that operate warehouse distribution centers like Amazon must share important information about conditions in their workplaces, like how they track productivity and set productivity quotas for workers. This data then can be used to support organizing campaigns, and it also can uncover potential safety hazards that can be brought to state or federal regulators.

Mandating paid sick days for privatesector workers : Full-time employees in Minnesota are now eligible for at least six paid sick and safe days, a change that will

The outlook for workers is in many ways determined by whether a Democrat or Republican sits in their governor’s mansions.

empower workers by decreasing their precarity. Workers who feel less precarious in their jobs are more likely to advocate for themselves and their co-workers.

While the Minnesota legislation is noteworthy for its breadth, other blue states have adopted many of these individual pro-worker legislative strategies. For example, California has launched the Fast Food Council, which like the Minnesota Nursing Home Workforce Standards Board, will set wage and benefit minimum standards across a whole industry in the state. (New York had already increased fast-food worker salaries in 2021, through a state wage board.) California also enacted protections for warehouse workers that include a requirement that employers provide information to workers about productivity tracking and quotas. And eight states in addition to Minnesota now ban captive-audience meetings: New York, Connecticut, Maine, Vermont, Oregon, Washington, Wisconsin, and Illinois.

Another active area of state and local action is the establishment of collective-bargaining rights (or other channels of worker voice) for workers excluded from the protections of the NLRB. For example, 12 states, two cities, and Washington, D.C., have enacted Domestic Workers Bills of Rights. In Seattle, the legislation included a Domestic Workers Standards Board, a tripartite mechanism that gave these workers a seat at the table in determining wages and benefits for the sector.

Because federal lawmaking is stuck in gridlock, it can be easy for politicians to posture without being responsible for any real policy. By looking at states and cities, we can

see more clearly when and how the parties actually govern. When it comes to unions and workers, the divide is stark: Red states are going one way and blue states the other.

This brief survey also helps shed light on whether there is an internal policy divide within the two parties. Are Republicans holding federal office more pro-labor than their counterparts in the statehouse? Or are state and local Democratic leaders getting out ahead of the federal ticket? The answer is again pretty clear. No Republican senator from Alabama, Georgia, Tennessee, or Florida—or from anywhere else, for that matter—came out against the anti-labor bills that passed recently in those states. Neither has Donald Trump nor JD Vance. But Kamala Harris showed her view about the innovations moving through blue-state legislatures by choosing the governor of Minnesota to be the vice-presidential nominee. So long as states remain under partisan control, the outlook for workers is in many ways determined by whether a Democrat or a Republican sits in their governor’s mansions. But there are opportunities for Democrats to win some measure of improved conditions in red states. Since 1998, 24 initiatives to increase the minimum wage have been placed on state ballots. All 24 were victories, including in such unlikely locations as Florida, Ohio, Montana, Missouri, South Dakota, Nebraska, Arkansas, and Alaska. (Purple states like Nevada and Arizona have passed minimum-wage measures as well.) This winning streak has provided tangible benefits for low-wage workers, if not full union membership. In Missouri in 2018, voters even repealed the state’s “right to work” law, making it easier for workers to organize. (Ohio voters rejected legislation that would have limited public-employee collective bargaining in 2011.)

In the 26 states that still allow for some kind of citizen-initiated ballot measures, then, growing public support for unions can manifest on Election Day, even in states whose leadership is primarily anti-union. Without taking advantage of this opportunity, red-state workers are likely to fall even further behind. n

Sharon Block is a Professor of Practice and executive director of the Center for Labor and a Just Economy at Harvard Law School. Benjamin Sachs is the Kestnbaum Professor of Labor and Industry at Harvard Law School and faculty director of the Center for Labor and a Just Economy.

IDEAS, POLITICS &POWER

Now more than ever, the support of readers like you is critical to the Prospect ’s mission to cover what’s at stake. Your tax deductible donations literally keep the Prospect team on the job. Check out all the other benefits online today, because we really can’t do this without you.

Leveraging the PowerMoney

Progressive

state and city officials are pushing back against

the right’s war on ‘woke capitalism.’ They could be doing even more with trillions of dollars in pension funds.

By Robert Kuttner

Public pension funds hold about $5.85 trillion in assets to finance worker retirement. These amount to America’s largest pools of public capital. They are subject to a variety of federal fiduciary rules under the IRS as well as state laws. The prime duty of pension fund trustees is to serve current and future pensioners by optimizing the rate of return, consistent with prudence. However, as long as they do not depart from that investment imperative, they have wide latitude to serve other social goals.

Among those are conditioning pension

fund investments on good labor practices; affirmatively investing in housing and other social goods; and serving broader goals often known as ESG, which stands for environmental, social, and governance. Several state and local pension funds, like the California retirement funds for public employees (CalPERS) and teachers (Cal STRS), have long used ESG criteria in directing their investments. Cal PERS ’s latest labor standards, which apply to its entire portfolio, include freedom of association and the right to collectively bargain; a ban on forced labor, child labor, and discrimination; and provisions on a safe, healthy work environment.

Progressive city and state treasurers also sometimes intervene in proxy fights over labor or ESG policies, or use their investments as direct leverage over company practices. In addition to pension funds, states raise serious money in the bond market, which also gives them potential influence over the practices of financial firms. The municipal bond market contains $4.1 trillion in outstanding loans.

Blue states and cities hold much more public capital, yet the most aggressive actions in corporate governance lately have been taken by red states. This literally leaves money on the table that could

be used to pursue broad public goals and resist red-state efforts to intimidate corporations. This money power is among the most high-impact strategies available to counter conservative aggression at the state level.

Conservative intellectuals and rightwing officials in states such as Texas and Florida have declared war on what they call “woke capitalism.” They are demanding that public pension plans in their states and cities boycott corporations that subscribe to ESG principles (as feeble as many are), as well as pressuring large financial firms that hold pension investments or underwrite bonds to disavow ESG. A major co-conspirator in this effort is the oil and gas industry, which stands to lose as corporations and financial companies commit to zero-carbon targets.

Texas’s far-right attorney general Ken Paxton has been on a crusade to leverage Texas bond placements to undermine the climate commitments of financial companies. Last November, Paxton sent a letter to all bond counsel, warning that under Texas law, Barclays, a member of the Net Zero Alliance, which seeks to align financial investments with eliminating greenhouse gas emissions, could be classified as a “fossil fuel boycotter.” In January, Paxton followed up with a letter declaring that Barclays would no longer be allowed to participate in Texas bond markets.

Paxton’s actions are partly ideological and partly aimed at defending Texas oil and gas interests from green-energy incursions, based on a 2021 law known as SB 13, which bars Texas from investing in or contracting with businesses that, in the state’s view, “boycott” the oil and gas industry. Paxton’s

close ally, Texas Comptroller Glenn Hegar, maintains a blacklist of 16 financial companies and more than 350 investment funds whose ESG policies he believes impermissibly target fossil fuel–based energy. These include some of the largest financial companies, such as BlackRock. In March, the Texas Permanent School Fund said it would yank $8.5 billion of assets under management from BlackRock.

While most large financial companies have not caved in to this pressure, a few have. In August 2023, in response to legal threats by the Texas attorney general, S&P Global Ratings announced it would no longer publish new ESG credit indicators or update outstanding ESG credit indicators.

Attorneys general in Democratic states have begun pushing back on this, with some assistance from the Biden administration. In 2022, the U.S. Department of Labor

issued a rule explicitly permitting the use of ESG criteria in pension investments it oversees as long as they were financially prudent. The action overturned a 2020 Trump administration rule intended to discourage such investments.

This enraged the right. In response, Republican legislators and state officials mounted a pressure campaign to repeal the rule. Bills were introduced in Congress, with titles like the “Roll Back ESG to Increase Retirement Earnings Act.” In January 2023, Paxton and other Republican AGs sued the Biden administration, demanding that the Labor Department rule be revoked.

The lawsuit failed, but is on appeal. Paxton’s strategy is more about intimidating pension funds and financial companies that hold public assets. Democratic AGs, led by Keith Ellison of Minnesota, fought back. Last December, Ellison and 17 other AGs sent a 27-page legal brief to congressional members and leaders laying out both the legal and financial case for ESG criteria in pension fund investments, adding that slowing climate change improves overall economic performance and that “a com -

pany’s exposure to climate change risks is often a material factor under a long-term investment horizon.”

Beyond this tit for tat, what are blue states and cities doing proactively?

Among the most creative is New York City, whose five public employee pension funds are together the nation’s thirdlargest pool of state pension fund capital, after Cal PERS and Cal STRS . New York City has become even more creative since Brad Lander, a Working Families Party–endorsed former city councilman, was elected comptroller in 2021.

In New York, the comptroller has a great deal of influence over pension fund investment allocations. Some of this takes the form of affirmative investments. Often it involves pressuring or negotiating with companies in which the city pension funds invest, either as direct investments or through financial companies.

Earlier this year, it came to Lander’s attention that the one large non-union hotel on the Las Vegas strip, the Venetian/Palazzo, previously owned by the notorious Shel-

don Adelson, had been sold after Adelson’s death to Apollo, a private equity company. As it happened, New York pension funds had money invested in Apollo.

“They wanted us to put in another billion dollars,” Lander told me. So he began negotiations with Apollo to end the union busting. The result was a card-check neutrality commitment, made in June 2023.

The hotel’s more than 4,000 workers voted union and are now proud members of Nevada’s powerful Culinary Workers Union, Local 226 of UNITE HERE, as well as Bartenders Union Local 165. In late August, they ratified the Venetian’s first-ever union contract, making the entire Las Vegas Strip 100 percent union.

Key New York unions, such as the United Federation of Teachers, two SEIU locals, and AFSCME, encouraged Lander’s tough stance, as did the AFL- CIO. This victory was something of a fortuitous one-off, but it reflects the ongoing commitment of Lander and the New York City pension funds to look for points of leverage that go well beyond boilerplate ESG commitments.

Another such area is housing. Not only do

The Venetian/Palazzo hotel in Las Vegas was unionized thanks to pressure from New York pension funds.

city pension funds invest directly in affordable housing, but Lander and his colleagues have developed Responsible Property Management Standards for landlords, which took effect this past July, and set permissible criteria for evictions and rent increases.

In a charming turnabout, a prime target of these standards is a Texas state fund that invests in housing. As a Brooklyn city council member, Lander began hearing about steep rent hikes that some of his constituents faced after their buildings were bought by a private equity company. The source of some of the capital was the same Texas Permanent School Fund that has been pressuring financial companies to drop ESG. The School Fund is the Texas version of a sovereign wealth fund backed by oil and gas revenues.

After Lander became comptroller, a local housing activist reminded him of private equity abuses by landlords, so Lander decided to act. According to The Wall Street Journal , the new standards are the first time that a public pension fund in the U.S. has adopted tenant protection rules for private equity investments in housing.

The standards specify that annual rent increases are limited to 5 percent plus inflation. Landlords must send a 30-day preeviction notice to renters who fall behind on payments, giving time to work out a resolution. Landlords must also disclose eviction rates, reasons for tenant exits, and average time to resolve maintenance requests. And in a reversal of the efforts by Texas and other red states to export their

rules to blue states, Lander’s tenant protection standards apply to all of a company’s real estate nationwide, if they want any investment from New York City’s $85 billion Employees’ Retirement System.

Since 2017, the NYC Teachers’ Retirement System, one of the city’s five public pension plans, has had a Responsible Contractor Policy. To qualify for preferred investment by the system’s funds, a contractor must be neutral in labor disputes, pay for worker safety training, be supportive of minorityand women-owned businesses, and meet other labor and social objectives.

As comptroller, Lander has also created a comprehensive dashboard of New York labor law violators, and works with other city and state agencies to mount concerted campaigns against offenders. These include some local employers, as well as national ones like Uber, Lyft, Amazon, and Gucci, all of which have been forced to pay fines or restitution.

At the state level, a key leader using pension fund investments to improve business practices has been the Illinois treasurer, Michael Frerichs. With Illinois pension funds also invested in Apollo, Frerichs worked closely with Lander to force a fair vote on unionization of the Venetian Hotel. Frerichs has also been aggressive in using pension fund holdings to challenge corporations that lag on climate commitments, like the Southern Company, the largest wholesale utility provider in the Southeast.

One large corporation Frerichs was happy to name was Starbucks. He, Lander, and other progressives engaged in a proxy battle to induce Starbucks to change its anti-union labor policies. Citing his fiduciary role, Frerichs said, “If you have antiworker policies, you have higher turnover costs and reputational damage.” In the proxy fight, owners of 52 percent of Starbucks shares voted to direct the Starbucks board to commission an independent outside report on the company’s labor policies. Starbucks has recently been working with the hundreds of stores that have unionized on a master template contract.

Both Frerichs and Lander have worked closely with a group called For the Long Term, which serves progressive state and city financial officials in 19 states to develop and coordinate pension fund strategies on climate and social objectives. Dave Wallack, the group’s executive director, told me, “The right wing is eager to cast this as a red states–blue states fight, but it’s really red states versus the rest of the world. When you look at the whole world and the growing commitment to climate and social goals, it’s a small amount of capital versus a massive amount of capital.”

OOne vexing challenge for socially engaged pensions funds is what to do about private equity.

Frerichs has used or threatened proxy rights to press management to bring more people of color and women onto corporate boards, through a project called the Midwest Investors Diversity Initiative, which has the backing of several other municipal and state financial officials in the region. I could not persuade him to give me names of specific companies—he cites ongoing confidential conversations—but he reports that thanks to this pressure, 55 large corporations diversified their boards, adding 114 people of color and women. Many previously had none.

“The goal is not just diversity for its own sake,” Frerichs told me, invoking his responsibilities as a fiduciary. “If a corporate board has only white males, that’s not good for the business. They are more prone to groupthink. They are more likely to miss opportunities.”

ne vexing challenge to socially engaged pension funds is what do to about private equity. Despite the occasional successes in changing private equity behavior for the better, as in the case of the Venetian Hotel or Lander’s policy boycotting bad-actor private equity landlords, the larger issue is whether pension funds should be investing in private equity at all.

Remarkably, about half of all private equity money comes from public pension funds. These funds are deferred worker wages.

Though some private equity firms are worse than others, the dominant private equity business model is to borrow money to acquire operating companies, load up the company’s balance sheet with that debt, extract windfall profits up front, and then ruthlessly slash costs in order to somehow make the numbers work. Though the story told by private equity is that this increases company efficiency, which is true in some cases, too often the costs that are slashed are worker jobs and wages, as well as worker retirement funds.

Private equity is often extractive in other

ways, doing sale-leaseback deals to take out windfall profits and then sticking the operating company with costly rental obligations. When all this extraction drives the company into the ground, the private equity owner often abuses the Chapter 11 bankruptcy process. As the Prospect has documented, this business model has been particularly devastating for retail and for private equity–owned nursing homes and other health facilities.

But this anti-worker strategy has succeeded in giving private equity firms a rate of return that averaged as much as four percentage points over a conventional portfolio of stocks and bonds in the period between 2000 and 2020. Since 2022, however, the index of private equity investments has lagged the S&P index. Though pension fund trustees are all too aware of the anti-worker abuses of private equity, the extra yield that some private equity funds still provide is too great a temptation.

This is compounded by the underfunding of many state and municipal pension funds and the need to compensate with high yield. The effort to have public pension funds boycott private equity has gone nowhere, and the one-off successful pressures on particular private equity firms that occasionally offer targets of opportunity, such as the Venetian Hotel, are less than comprehensive.

An excellent July 2024 report by the American Federation of Teachers, whose 1.8 million members’ pension funds hold assets totaling over $3 trillion, criticized private equity abuses and provided details on the labor practices of the ten largest PE companies, all of which have pension fund investors. In each case, the AFT and other unions or pension fund trustees attempted to engage with the companies to gain commitments to reverse anti-worker practices, such as mass layoffs, the use of child labor, and union busting.

Several of the largest private equity firms, including KKR , Carlyle, and Warburg Pincus, declined to even respond to the AFT. Others made general commitments. In a handful of other cases, real progress was made. For instance, Blackstone owns Packers Sanitation Services, Inc. (PSSI), a contract cleaning company for food processing plants. PSSI was hit by multiple complaints and fines in eight states for child labor violations. The pressure on Blackstone resulted in a card-check neutrality agreement; some 1,200 PSSI workers now have union con -

tracts as members of the United Food and Commercial Workers.

Though victories like this are impressive and well worth pursuing, it would be remarkable if a sector whose core business model is extractive can be transformed by engagement with one company at a time.

Many progressive officials responsible for pension fund investing contend that some private equity firms are better than others. They argue that the good ones acquire failing companies, bring in new management, execute turnarounds, and even sometimes put in new capital rather than being purely extractive.

Brad Lander was more candid. “I’m not going to tell you there is good private equity,” he said. “We don’t want to be investing in PE companies whose model is anti-worker, but there are also very serious problems with publicly traded companies. We try to engage with both.”

Another problem with private equity

is lock-in. With most PE investments, the trade-off is the potential of higher yield against the fact that money can’t be withdrawn for a period of time, often years, without a loss.

New York’s pension funds are invested in the Platinum Fund IV. One of the fund’s operating companies is a scandal-ridden prison telephone operation called Securus that gets contracts for inmate calls and then overcharges them. Securus charges as much as $8.25 for a 15-minute call. But Securus has been going broke, in part because Platinum loaded up the company with over a billion dollars in debt to pay for the costs of acquiring it, and in part because of a campaign against it by prison reform groups. Securus is now close to bankruptcy. Lander told me, “We can’t easily get our money out. We’ve told Platinum that unless you commit to reform of Securus, we won’t invest anymore.”

New York City Comptroller Brad Lander has used his influence with powerful pension funds to deliver wins for workers and renters.

As a longtime admirer of Lander, I can’t resist observing that a better strategy might be to avoid extractive PE companies in the first place. Indeed, you have to wonder why nobody in the progressive pension fund universe has created a comprehensive list of private equity companies considered suitable for investments and those considered extractive.

Jim Baker, executive director of the Private Equity Stakeholder Project, told me, “Pension funds, university endowments, foundations, insurance companies, and others that invest in private equity should halt new investments to private equity firms that repeatedly harm workers, patients, communities and the planet.” Last June, CalPERS began moving in that direction by issuing a list of PE firms that it was avoiding because of their labor practices.

How about a general list of the 100 worst private equity companies? A boycott strategy against extractive PE might be more effective than one-by-one constructive engagement.

Damon Silvers, former policy director at the AFL- CIO and one of the founders of labor’s Capital Stewardship program, told me, “I have known some very talented private equity managers who have contributed real value to the firms they invest in. But taken as a whole, the model tilts toward value destruction from an economic perspective because of unsustainable return targets, high leverage, and relatively short portfolio holding periods combined with

unjustifiable regulatory and tax subsidies.”

Silvers, who made clear that he is speaking just for himself, added that investors in private equity need to take a close look at which funds “are really generating value, or are playing a game of smash and grab. At this point, it is pretty easy to make a list of those funds that have adopted labor standards, or are meeting the disclosure requirements in the SEC’s private fund rule, and those that aren’t.”

The pension fund vogue for private equity investments may yet fall of its own weight, because as the PE industry has grown exponentially to about $14.7 trillion, the opportunities for extra-normal yields have narrowed. Some fans of private equity attribute this weakening to the prevailing high interest rates, which make PE’s strategy of using heavy borrowing more costly. But with PE so large, even with lower prevailing interest rates, it becomes harder to believe that PE will keep beating the market averages except via extraction.

If they were to think further outside the box, how much more might blue state and city AGs, treasurers, and comptrollers do? One challenge is that people like Ken Paxton, who is on an intimidation crusade, are more willing to break the law, while blue-state officials take their fiduciary responsibilities seriously.

There could be more targeted pushback that takes the struggle deep into red-state territory, like the case of Brad Lander conditioning investments in the Texas Permanent School Fund on decent landlord behavior. The virtue of this approach is that it covers not just investments in New York but nationwide. Going further, pension funds could be a force for discouraging private equity and other corporate landlords from investing in single-family housing entirely.

Pension funds could similarly invest in utilities, water resources, or clean-energy projects in red states, and force those entities to conform to better standards. An example of how this could work can be seen in how Oregon and Washington utilities that own the transmission wires between coal plants in Montana and the West Coast have forced a transition to wind power to meet their states’ climate goals. Pensions could also make investment decisions that burrow into red-state territory and require changes that meet both fiduciary and social goals at once.

As one close observer of this tug-of-war told me, a lot of blue-state action is devoted to promoting ESG. While climate goals are crucially important, ESG has become so mainstream that it’s almost too easy. Some of it is just greenwashing. That helps explain why the intimidation by Paxton and others has reversed few commitments by the largest financial companies.

Just as important as the E in ESG —for environment—is the S. Pension funds could be much more proactive in advancing social standards, especially labor standards. And as some of the leaders in the field, such as Illinois’s Frerichs, have recognized, equally important is the G, for corporate governance.

When Ronnie Chatterji ran for state treasurer of North Carolina in 2020, one of his ideas was to use the various forms of public capital that he supervised for state economic development. The Prospect profiled him in that campaign. Chatterji, who went on to be in charge of implementation of the CHIPS and Science Act under Biden, lost that election, but the idea is worth taking seriously.

Given the various fiduciary rules for pension fund investments, however, there are limits to how much they can invest directly in possibly risky direct investments. But they have a lot more latitude in conditioning their financial investments on the behavior of those they invest in. Then it is the private company that bears the risk.

Thanks to the Biden industrial policies under the CHIPS and Science Act and the Inflation Reduction Act, a lot of new factories are being built and jobs being created. At a time of a national shortage of affordable housing, one question is where those workers are going to live, especially when jobs in a large facility are concentrated in areas where housing is already scarce. Pension funds might invest in construction of targeted housing, or they might invest in companies that agree to develop such housing.

Nearly $6 billion in public workers’ deferred wages is a massive amount of money. It’s great that some pension fund trustees are being creative in how that money is invested for good, and how it can be used to deter bad anti-social and anti-worker corporate policies. The right’s crusade against woke capitalism is, unintentionally, a wake-up call. The blue states are more generous with public pensions, and they have a lot more money. They could be even more creative. n

Playing Hardball

Rebalancing conflicts over state policy will require that blue states wield power differently.

By Arkadi Gerney and Sarah Knight

No matter who wins the presidential election a few weeks from today, the great divides between Red and Blue America will likely persist. The centers of gravity for resistance to President Biden’s administration—and more broadly to the culture, worldview, and power centers of Blue America—are not found under the golden chandeliers of Mar-a-Lago, or behind the door of the ever-rotating House Speaker’s office in Washington. Rather, the beating heart of that resistance can be found inside the state capitols that are unilaterally controlled by Republicans. And those state government leaders, the engines that propel policy division and political conflict, aren’t going anywhere.

As political scientist Jacob Grumbach describes, concentrated partisan power, which has built up over the past 30 years and is approaching an apex, means that the states, once hailed by Justice Louis Brandeis as laboratories of democracy, are increasingly turning into laboratories for partisan advantage. And this has stirred the latent potential for rising interstate

aggression and conflict, with states governed by Republicans in particular adopting policies and practices expressly designed to impose their power and policy preferences on unwilling citizens, officials, businesses, and states beyond their borders.

To be fair, blue states have also used policy to drive national standards. For decades, conservatives have fretted that California’s emissions and environmental standards stand in for the nation, since it may be too expensive to make one product to meet California’s strict requirements and another for Nebraska’s. Yet our review of state actions in recent years suggests that red states are more determined on this front, and more effective from the perspective of achieving their objectives.

In our view, effective responses to the increasingly ambitious red-state aggression hinge on two critical objectives. The first is to win (or at least not lose) the policy battles around which these conflicts are arising, vindicating the power of blue-state voters to determine their own destinies. The second is to contain the conflicts between states sufficiently to avoid a conflagration. You could say that these objectives draw from two doctrines,

one from recent legal theory and practice, and one from common negotiating strategy: constitutional hardball and deterrence

In the face of red-state aggression, we think it’s time for blue states to embrace their governing majorities as affirmative sources of power—and began to exercise those powers more fully, more effectively, and with greater coordination.

Large-scale instances of interstate aggression are obviously not without precedent in American history. The decades before the Civil War saw rising efforts by slaveholding states to force free states to return what the people of soon-tobe Confederate states saw as their property, and comply with pro-slavery requirements that violated the laws of states like Maine and Ohio. Free states not only refused to follow these laws, but attempted to use their power within the federalist system to refuse admission to new slaveholding states. In the decade before the descent into civil war, legislative aggression and legal gamesmanship often evolved into militia violence and clashes among rival armed mobs. Today’s

provocations—if less frequently violent so far—recall that era, reflecting a new and dangerous level of modern hostility.

In a 2017 essay, conservative academic Angelo M. Codevilla compared the deep divisions among “countrymen who increasingly regard each other as enemies” to the fundamentally different worldviews that characterized mid-century conflicts between the U.S. and the Soviet Union. Believing that “so many on all sides have withdrawn consent from one another,” and despairing that “it is difficult to imagine how the trust and sympathy necessary for good government might ever return,” Codevilla used an indelible phrase to describe this era: “the cold civil war.” And, he warned, “statesmanship’s first task is to prevent it from turning hot.”

While we disagree with much of the ideology and purported facts that underpin Codevilla’s threat assessment, the description of a cold war rings true. Of course, we don’t share the conservative movement’s ambition to starve the federal government until it could be “drowned in a bathtub.”

So it is perhaps unsurprising that Democrats have only haltingly and half-heartedly embraced what we would describe as progressive federalism: the exercise of power at the state level to make tangible progress, shape national policies, and counter ideological advances from the right.

Progressives tend to favor national projects, pouring our energy into securing rights, freedoms, power, and a decent life for all Americans. Strategies that rely on expanding state

power may feel antithetical to our core project and values. But, returning to the fundamentals of American government, we need to be realistic about the political environment and constitutional structures that constrain us, and open to exploring all available options.

In 2004, Mark Tushnet’s landmark essay described constitutional hardball as “consist[ing] of political claims and practices—legislative and executive initiatives—that are without much question within the bounds of existing constitutional doctrine and practice but that are nonetheless in some tension with existing pre-constitutional understandings.” At the federal level, constitutional hardball can be seen in changes to Senate rules on nominations (as practiced by Democrats in 2013

and Republicans in 2017); the penalization of political opponents, like the targeted Republican policy that limited state and local tax deductions, which disproportionately affected blue states and cities as part of the 2017 Trump tax cuts; or the use of tools like impeachment in unprecedented circumstances, such as recent Republican efforts to remove Homeland Security Secretary Alejandro Mayorkas.

At the state level, constitutional hardball looks like aggressive partisan gerrymandering, or legislative efforts to overturn reforms enacted by ballot measures that represent the direct will of the voters. Just as they have been heavier users of interstate aggression, Republicans have been far more sustained in their employment of constitutional hardball at all levels—a condition that has been described as asymmetric hardball.

We view a deterrence strategy as the key to getting out of this cycle. The best way to force Republicans to re-evaluate their commitment to asymmetric interstate aggression is to remove the asymmetry. As legal scholar Jack Balkin argues, “When your opponents engage in constitutional hardball in order to get their way, the correct response is not to wring your hands and urge them to play fair by the old rules … Rather, the correct response to constitutional hardball of this sort is to engage in constitutional hardball of your own, in order to make the other side come to the bargaining table and agree to a new set of understandings about how the game of politics is to be played.” Other scholars have made the same point: If you want to end constitutional hardball, you have to get on the field.

So if Republicans are in fact engaged in a game of asymmetric hardball, how should blue-state Democrats respond? Given our twin objectives, we believe blue states should engage in a bold and coordinated counteraggression strategy. This unfamiliar and perhaps unwelcome territory is likely not only our best path to protecting, defending, and advancing rights and shared policy agendas, but also essential to avoiding the greatest systemic risks to American democracy associated with asymmetric, unchecked, and rising redstate aggression.

Effective governance in blue states—and, critically, across closely divided states as well—has to take seriously the threats and opportunities that stem from the great

chasms in policy across states, as well as the potential for state laws, judicial decisions, and executive actions to affect conditions outside a state’s boundaries. As blue-state leaders consider their options, they have a lot of tools available to them:

Leveraging economic, cultural, and people power. The 17 blue trifecta states represent 47 percent of U.S. GDP, versus just 37 percent for 23 red trifecta states. Blue states should leverage economic power to shift business behavior in the direction of their favored policies, and toward investment in the companies, industries, and products that will benefit a climate transition, raise standards for workers, and promote a healthy middle class. The blue trifectas control roughly twice the pension fund assets of red trifectas; they should coordinate and deploy that investment power more effectively and intentionally.

For example, blue states can use pension funds to make investments in solar and wind operations, not only in their own states but also in states like Texas, expanding the political power of renewable-energy providers. Taxing out-of-state residents for legal marijuana purchases, to use another example, could not only spur citizen demand in states where cannabis remains prohibited to institute their own legalization regimes, but fund critical blue-state programs in the meantime.

Exploring policies that are better and more humane than migrant busing, but that create similar political opportunities and impose similar political costs within red states. The hallmark example of interstate aggression in recent years is the migrant busing strategy that Texas Gov. Greg Abbott initiated in 2022, which has physically moved nearly 120,000 undocumented migrants to cities in blue states. Successful countermeasures need to be good politics within blue states and divisive among Republicans in red states; they need to create immediate effects in those red states, and those effects need to be tangible in ways that change residents’ minds and create windows of political opportunity.

That might include blue-state efforts to bulk-purchase or manufacture low-cost insulin, not only for California residents, but also for Idahoans who can’t otherwise afford essential medicines, and who may begin to wonder why their own red state isn’t investing in their health and well-being. There could be a doubling down on existing efforts

to establish mobile mifepristone clinics that dispense abortion care medications at or near borders with states that prohibit it. Another option could be blue states making up for persistent shortages of teachers or health care professionals by recruiting in red states, where restrictive rules on teaching or abortion bans create frustration and despair within those professions.

Forging compacts and alliances that create efficiencies of scale and comparative purchasing advantages. State procurement alliances sprang up around COVID, enabling groups of states to buy PPE at lower cost and avoid cutthroat competition with each other. Similar advantages might be realized if blue states banded together to procure voting equipment and educational materials, or if they established mutual aid agreements and more portable licensure requirements. States have also engaged in agreements around climate action and reproductive freedom. We could add other creative compacts, like agreements that use pooled funding to address regional housing shortages—as has been initiated in some regions—or ones that make things like voter registration or occupational licensing and accreditation transferable across borders. It could take the form of concerted efforts by blue states to provide free or low-cost training to medical and nursing school students whose red-state schools no longer offer training in the full array of

The best way to force Republicans to re-evaluate their asymmetric interstate aggression is to remove the asymmetry.

pregnancy, miscarriage, and abortion care, with the expectation that some would stay and lend their talents to blue states. On the more aggressive side, goods that arrive in blue states could be assessed additional fees if they come from right-to-work states, on the grounds that they would have to be inspected further for quality and safety.

Engaging in a “race to the top” that raises standards in blue and red states alike. Minnesota’s “North Star Promise” program provides free college tuition for some lowand moderate-income students who are Minnesota residents. Because Minnesota and North Dakota compete to attract the region’s top students, the program had the effect of forcing North Dakota to meet Minnesota’s standards. Similar programs might work in other regions—particularly where the promise of tuition breaks could overlap with the chance to attend college in a state where abortion is safe and legal.

After what we’ve seen in Springfield, Ohio, where Haitian immigrants who were filling jobs and helping the community thrive were demonized by the top of the Republican presidential ticket and harassed, a blue-state program that encourages communities to take in skilled foreign workers might be another “race to the top” strategy. Rural counties that voted for Joe

Biden in 2020 had above-average in-migration population increases, and this strategy could help incentivize more of it.

We’re beginning to see evidence of blue-state leaders using hardball and deterrence strategies successfully to contain aggression in some contexts. For instance, after getting rolled by Republicans in the 2000 and 2010 redistricting cycles, Democrats entered the 2020 cycle with a more ambitious and aggressive approach. After a 2019 Supreme Court decision effectively blessing partisan gerrymandering as a constitutional practice, key Democrats abandoned quixotic appeals for fair districts and began to fight fire with fire. Eric Holder’s National Democratic Redistricting Committee and others worked to shift the balance of power, drawing maps that consolidated power in Democratic trifecta states. As one headline summarized: “The House Map’s Republican Bias Will Plummet in 2022— Because of Gerrymandering.”

Meanwhile, Democrats’ willingness to take the gloves off made compromises possible that would not have been viable in the absence of credible counterthreats. In Wisconsin, for example, Janet Protasiewicz’s 2023 state supreme court victory signaled a real possibility that the state court would redraw the extreme Republican gerrymander of leg-

The hallmark example of interstate aggression in recent years is Texas moving undocumented migrants to blue-state cities.

islative districts. The court did strike down the existing legislative districts as unconstitutional, and intimated that it would draw the maps themselves if the legislature didn’t respond. Democrats wielded that threat to force the Republican-controlled legislature (itself the product of extreme gerrymandering) to compromise on a less gerrymandered redistricting map that gives Democrats a real chance to win a majority.

We also see versions of hardball and deterrence in late-stage efforts to game the Electoral College before November. Throughout this year, Nebraska’s Republican governor and legislature floated the prospect of a special session to reconsider the state’s allocation of electoral votes. While most states use a winner-take-all approach to allocate electors, for more than three decades Nebraska has used a “split” system, where the statewide winner gets two electoral votes and the winner of each of three congressional districts gets one electoral vote. While Nebraska’s statewide vote has gone to Republicans by large majorities for many cycles, Democrats are competitive in the state’s Second District (which Barack Obama won in 2008 and Joe Biden won in 2020). If enacted, the change could have been decisive: A 270-268 Harris-win electoral map, which is very possible in a couple of scenarios depending on who wins the swing states, could shift to a

The most aggressive strategy blue states can deploy is making their states great places to live.

269-269 Harris-Trump tie, allowing likely Republican majorities among U.S. House delegations to elect Trump president.

Democrats ultimately hit on a counterhardball deterrence strategy to check the Nebraska Republican power play. Maine also allocates electoral votes with a split system. There, Trump won the electoral vote from Maine’s Second Congressional District in 2016 and 2020, but Democrats have a trifecta and the statewide vote advantage. In late April, Maine’s Democratic House majority leader Maureen Terry announced that Maine would advance its own winnertake-all law if Nebraska moved forward, a move that would effectively cancel any potential electoral advantage.

At this writing, Maine’s counteraggression appears to have successfully deterred and delayed Nebraska. Nebraska Republicans attempted a last-minute late-September play to change Electoral College apportionment during a window where Maine could not respond (Maine’s constitution imposes a 90-day waiting period for a law to become effective absent a two-thirds majority vote—a supermajority Maine Democrats do not have). But the key Nebraska Republican holdout cited the very last-minute nature as a principal reason for his opposition. So it appears neither state will change its electoral vote allocation before the election. Deterrence worked.

While these are encouraging signs of life from blue-state leaders, hardball, deterrence, and counteraggression are far from their default

or dominant political strategies. Divided Democrats in New York state, for example, agreed to a weak redistricting compromise earlier this year that left several potential competitive and blue-leaning House districts on the table. And some of Maine’s Democratic leaders were notably AWOL when Terry fired her warning shot at Nebraska.

Some of the reluctance to vigorously pursue blue-state counteraggression strategies reflects a nostalgia for national solutions. That impulse is somewhat understandable: It would be better if Congress or the courts established national rules. Indeed, the mid20th-century era of lesser partisan policy divergence across the states coincided with a strong federal government. But the combination of the distorted Electoral College system, Senate malapportionment, and the conservative capture of federal courts make that an extremely unlikely bet in the coming decades. Under these circumstances, hoping for some federal deus ex machina to save us from interstate conflict seems not just optimistic, but unrealistic.

Let’s consider the best-case scenario. It’s possible that Election Day will create a federal trifecta for President-elect Harris. If it does, relying on federal mechanisms to resolve conflicts among the states is still a weaker bet than coordinating state power, for three reasons. First, the Biden administration has been remarkably muted in response to recent episodes of red-state aggression around abortion, migrants, and the growing set of state-level decisions barring companies from diversity, equity, and inclusion (DEI) programs or investment decisions that incorporate environmental, social, and governance (ESG) goals. Occasional interventions, like the Justice Department contesting Alabama’s authority to criminally prosecute abortion travelers, are overshadowed by the far more numerous times the federal government did nothing at all.

Second, to the extent that federal authority is relevant to resolving (or accelerating) conflicts between states, that authority rests principally in the federal courts, a branch that’s likely to be stuck in a conservative vise grip for decades to come. Recent Supreme Court cases overturning long-established “Chevron” deference to federal rulemaking will likely only accelerate state policy divergence and interstate aggression.

Finally, the federal government’s structure is beholden to the biases of large,

low-population states, even as the U.S. population becomes more concentrated in blue urban areas. This could be the reason that the Senate flips to Republicans this year, even as more voters support Democratic Senate candidates, and Democratic senators represent a considerably higher percentage of the population. As the redistricting and Electoral College allocation fights portend, there is no path to durable federal power without the creative, ambitious exercise of state power.

Ultimately, the most aggressive strategy blue states can deploy is making their states incredibly dynamic economies that are also great places to live. By many measures, this is already the case. Bluestaters live, on average, significantly longer, healthier lives, with a 7.1-year gap in life expectancy between Hawaii (81.8 years) and Mississippi (74.7).

But blue-state leaders don’t have a monopoly on good ideas, and we don’t think that across-the-board progressive policy maximalism is the answer to redstate aggression. The winning strategy also has to address some serious problems that have emerged in blue states around the cost of living in general and high housing costs in particular (see sidebar). Successful bluestate counteraggression cannot be decoupled from developing and implementing highly effective policies that make more Americans want to live in Blue America.

The strategy of coordinated, calibrated counteraggression we propose should not be misunderstood as a license for knee-jerk extremism or escalating cruelty. We certainly aim to understand Ron DeSantis’s playbook and Greg Abbott’s tactics in order to comprehend what makes them politically powerful. But successful counteraggression demands something more and better than simple political plagiarism. Our approach must be appropriately differentiated by our values. An effective blue-state response does not involve herding vulnerable people onto buses and driving them a thousand miles to leave them on cold city streets. Instead, we’ll need to imagine how to use all the power of blue states—creatively, boldly, aggressively—not only to help people who live within them, but to begin to use that leverage to reset the national balance of power. n

Arkadi Gerney and Sarah Knight are strategists whose work focuses on the intersection of law, politics, policy, and democracy.

Housing Blues

Blue states are the hot spots for the country’s housing affordability crisis.

In 2030, political power may shift to the South. Based on the Census Bureau’s population estimates, early projections show California losing four congressional seats and New York three, while Texas would gain four seats and Florida three.

Over the past two decades, the South grew at a much faster rate than the Northeast. Even though Republican states have been criticized for abortion bans, neglected public education systems, and weak social welfare policies, this growth largely comes from domestic migration. Many Americans are packing up and leaving blue states for red ones to beat soaring housing costs.

A record number of Americans cannot afford their rents, homelessness has reached historic levels, and rural locales and smaller communities outside major metro areas can be expensive as well. Home affordability is a national crisis, and blue states and blue cities have been especially hard-hit. Longtime residents can’t find homes in their price ranges, and the high prices put off potential newcomers. To attract people and claw back political power, blue states must fix their housing policies.

The reasons for migration fall into three categories: housing, jobs, and family. While employment rates have returned to pre-pandemic levels across the U.S., housing prices have continued to increase in most areas. A National Association of Realtors economist found an inverse relationship between the number of jobs created in a state and its net domestic migration in 2022. (Texas and Florida, however, both have high job creation rates and increasing numbers of new transplants.) People also continue to flee blue states with high median property values, even when those states boast healthy numbers of new job openings.

California has experienced population losses across nearly all demographic and socioeconomic groups, including college graduates, a group that typically flocks to blue states. And, since 2014, 700,000 Californians have attributed their departures to the state’s exorbitant housing prices. Texas is the top destination for Golden State transplants.

“The people who are moving out of California just recently were, by and large, people at the lower and moderate incomes,”

explains Eric McGhee, a senior fellow at the Public Policy Institute of California (PPIC), “and that really gives you a signal that they’re having trouble affording living in California.”

In PPIC ’s recent statewide survey, 53 percent of the people polled said housing costs are a financial strain. When people leave California for a new state, about half of them buy a house—only a third of the new arrivals do so.

According to the Albany-based Fiscal Policy Institute (FPI), over a third of the households leaving New York do so to find affordable housing. Families with young children are especially likely to move. And, while Republicans have criticized blue states’ high tax rates, the average family that departs saves 15 times more on housing than on taxes in their new state.

“We do think that it’s indicative of a pretty

research analyst at Harvard’s Joint Center for Housing Studies.

Fresh approaches have met with mixed success. Last year, New York Gov. Kathy Hochul (D) proposed a slew of housing proposals, including housing construction mandates. However, state lawmakers and local leaders torpedoed the plan. This year, the governor advanced a more conservative approach, trading in mandates for tax incentives and zoning reforms. A New York State Assembly member has also proposed a new state housing authority to create social housing—publicly controlled, affordable housing that is available to all.

California abolished single-family-only zoning in 2021, but in April a Los Angeles County Superior Court judge ruled the plan unconstitutional, arguing that it unfairly imposed on

serious policy failure that so many young and working-class families can’t afford to make it in New York,” says Andrew Perry, an FPI senior policy analyst. An FPI analysis found that while Florida, the top destination for those leaving New York, permitted an average of 6.9 new housing units for every 1,000 residents from 2014 to 2023, New York permitted only 2.1 new units. Over that same period, peer states such as New Jersey and California added only slightly more housing, permitting 3.3 and 2.7 new units, respectively.

Blue states and cities have historically had “more of a taste for regulation,” which has “stymied development over the past 50 years,” explains Riordan Frost, a senior

local authority. California Attorney General Rob Bonta has appealed the ruling.

In August, Massachusetts authorized billions to facilitate the construction or restoration of 65,000 housing units, direct $2.2 billion to public housing, and establish a permanent fund to spur the development of mixed-income, multifamily housing.

Blue states must also ensure that new— and smaller—single-family homes and multifamily units come in at price points that the middle class can afford. Bold policies that confront these housing crises head-on could stanch the political hemorrhaging and give blue-state residents the option to stay in the places they’ve called home.—Rachael Dziaba

Keith Ellison: Seeing Red

Minnesota’s attorney general on how to fight back against conservative aggression at the state level

Minnesota has four states on its borders; all of them have Republican legislatures, and all but one a Republican governing trifecta. It feels state policy divergence and aggression right on its doorstep. But Minnesota has also been a blue oasis among that sea of red, passing progressive policies and using its leverage to resist the conservative momentum. As state attorney general, Keith Ellison is at the forefront of that pushback. The former six-term congressmember talked about his strategies for countering the right’s ambitions at the state level.

TAP: In December 2023, you took the lead to organize a letter signed by other Democratic state attorneys general to push back against a campaign by right-wing state officials aimed at intimidating states and financial companies that embraced ESG criteria in their investments. What other actions can you take against these far-right campaigns?

Keith Ellison: We reacted to another completely offensive action by right-wing AGs who are trying to get the EPA to abandon activities to protect communities of color against environmental injustices. They term this “racial engineering.” This is led by Florida’s attorney general, Ashley Moody. She got 22 other Republican AGs to go on her letter. She doesn’t want the EPA to use civil rights laws to investigate actions and policies that resolve environmental harm to Black people or other minorities.

We wrote to the EPA as well. We said, you must be doing this. It’s your legal responsibility to enforce the law, to protect communities from additional pollution burdens.

Going beyond these dueling letters, is there some way you can take the fight to the other side?

That’s exactly what we need to be doing. My colleagues in the Democratic Attorneys General Association are looking to ways to do just that. This is really about returning America to a period before the Supreme Court decision of Brown v. Board of Education in 1954, and before the great civil rights acts of the 1960s. They want to

tear down all that we have built. We need to go on the offensive.

When you were in Congress, you saw the partisan gridlock. Do you think that explains why the far right is using the states to try to make headway with right-wing policies?

I think they are trying to roll back policies of equal justice on all fronts. And not just the federal government and the states—school boards, too. They have a comprehensive strategy to return America to pre-1954 on all fronts.

In Minnesota, you border a lot of red states with extreme policies. Is being an island of blue an asset? Or is it more of a challenge? It’s a tremendous asset. Because Minnesota is the envy of every single state around it. They all wish they could be Minnesota. I’m not just being provincial. Not only is

If they don’t want women to be able to be CEOs or to succeed in the professions, we are looking for talent, and talent comes in all kinds of packages.

So I think it gives us an advantage, because what they’re essentially doing is shutting their doors on people who can help their state. And that means that we’re going to benefit. I guarantee you, if they keep this up, Minnesota will be known as the place that is freer, fairer, and more prosperous.

People like Ken Paxton, the Texas attorney general, are trying to export their policies to more progressive states. Paxton wants to track down and punish women who travel out of state to get abortions, and he wants other states to cooperate with Texas, as in the Fugitive Slave Act. How can Minnesota resist that?

Paxton has two constititional problems.

our economy bigger. Not only is there more economic opportunity here, but you can live your life and have more freedom. You can participate in a better school. You can have more housing options. A lot of things are just flat-out better. If the Dakotas and Iowa don’t want the LGBTQ community, fine. Come here, open a business here.

One is the freedom to travel. The other is the provision on the Minnesota Constitution guaranteeing women the right to choose. So if he tries to get records on someone who arguably travels to Minnesota and tries to get Minnesota to cooperate, we will block that and I will be in a Texas court. —Prospect Staff

TAP NEEDS CHAMPIONS

Join the Prospect Legacy Society

The American Prospect needs champions who believe in an optimistic future for America and the world, and in TAP’s mission to connect progressive policy with viable majority politics.

You can provide enduring financial support in the form of bequests, stock donations, retirement account distributions and other instruments, many with immediate tax benefits.

Is this right for you? To learn more about ways to share your wealth with The American Prospect, check out Prospect.org/LegacySociety

Your support will help us make a difference long into the future

LISTEN! LEFT ANCHOR

Join managing editor Ryan Cooper and Alexi the Greek for grounded, novel, and irreverent perspectives on current events and political theory. Access free episodes and excerpts at Prospect.org/podcasts

Support the Prospect with a POWER level membership for access to ALL episodes Prospect.org/membership

The pessimist complains about the wind; the optimist expects it to change; the realist adjusts the sails.

—WILLIAM ARTHUR WARD