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With a Divided Congress, States Will Likely Take Up the Slack

With Democrats taking over the U.S. House, Congress may grind to a halt. Red and blue states, meanwhile, will go their separate ways on abortion, taxes, education, health and voting rights.

Nancy Pelosi
House Minority Leader Nancy Pelosi on Wednesday said she's confident she'll be elected speaker of the House next year when Democrats take control.
(AP/J. Scott Applewhite)
It's never a bad idea to bet on Congress failing to act. With Democrats taking control of the U.S. House and certain to have contentious relations with President Trump, Congress is going to be doing even less than usual. 

"It's always been a substantial challenge to get anything meaningful through Congress," says Victor Riches, president of the Goldwater Institute, a conservative think tank in Phoenix. "Obviously, that's going to be more difficult now."

For the next two years, the House will hold hearings to investigate Trump, while the Senate will work to confirm his judicial picks. No doubt Trump will issue more executive orders, as President Barack Obama got in the habit of doing once he faced divided government.

But there won't be much substantive legislation crossing Trump's desk. "That will leave a policy vacuum that the states will seek to fill," says Aubrey Jewett, a political scientist at the University of Central Florida.

With conservatives and progressives alike being frustrated by Washington, they'll turn to states to push their favored policy agendas. Each will be able to find plenty of friendly outlets. 

Despite losing a few chambers and governorships on Tuesday, Republicans will have full control of the political branches in 23 states. Democrats picked up "trifectas" in six more, meaning they will hold complete sway over 14 states.

"The vast majority of policy gains will occur at the state level," says Jessie Ulibarri, executive director of the State Innovation Exchange, which provides policy support to progressive legislators.

Blue states will look to pass legislation on issues ranging from minimum wage increases and paid sick leave requirements to free college tuition. "It's exciting to talk about what's happening in Washington, but the reality is that the action has always been at the state level," says Kevin Parker, Democratic whip in the New York Senate, which now has a working majority for the first time in years.

Democrats will certainly look for ways to expand access to health care. After taking the Virginia governorship and winning 15 seats in the state House last year, the Party succeeded in pushing through an expansion of Medicaid.

All seven of the incoming Democratic governors who are succeeding Republicans campaigned on the idea of either expanding Medicaid or preserving expansion programs already in place. Voters in the red states of Idaho, Nebraska and Utah all approved ballot measures to expand Medicaid -- something Maine voters did last year, only to see their efforts blocked by Republicans who have been swept out of power in that state.

"Janet Mills, our governor-elect, has already said that she plans to work on Medicaid expansion," says Jim Melcher, a political scientist at the University of Maine at Farmington. "That's the biggest issue that will wind up driving state-level action."

Conservatives will pursue a different approach. The chances for repealing the Affordable Care Act (ACA) "have all but disappeared" with Democrats taking the U.S. House, says Rea Hederman Jr., vice president of policy at the Buckeye Institute, a free market think tank in Columbus, Ohio. But Republicans in the states will be looking to experiment with work requirements, different delivery models and health savings accounts.

"You have an administration that has opened the doors with waivers," Hederman says. "We'll see if states can offer better solutions than the trench warfare we've seen at the federal level with the ACA debate."

The parties will also take opposite approaches when it comes abortion. "Almost more than anything, protecting and codifying a woman's right to choose is going to be paramount," Parker says.

Republican legislators will continue to enact further restrictions on abortion. Constitutional prohibitions against abortion were approved by voters in Arkansas and West Virginia this week, anticipating that a more conservative U.S. Supreme Court may allow further limits or outright bans. Earlier this year, Iowa enacted a so-called fetal heartbeat law to block most abortions.

"Somebody's going to try to get a case, a chance to repeal Roe v. Wade," says Bill Pound, executive director of the National Conference of State Legislatures.

Conservatives will also pursue issues such as school choice and deregulation, including curbs on occupational licensing requirements. "Particularly in these times, when the economy is in such good shape, there's going to be a lot of opportunity for legitimate tax reform," says Riches, the Goldwater Institute president.

Voting is another issue that has itself become partisan in nature. Republicans have already successfully pressed for voter ID laws in as many states as are likely to pass them, including constitutional amendments approved by voters this week in Arkansas and North Carolina. GOP lawmakers are likely to push for more aggressive laws to clean up voter registration lists, having been given the green light to do so by a favorable U.S. Supreme Court decision last spring regarding an Ohio law.

While Republicans express concern about preventing fraud, Democrats will press to make voting and registration easier -- an idea that proved popular with voters this week in states such as Florida, Maryland and Michigan.

"We're unlikely to see a new Voting Rights Act at the federal level," says Ryan Pougialies, senior policy analyst at Third Way, a centrist Democratic think tank in Washington. "States can pass these reforms to some extent. Automatic voter registration is going to become the norm in states controlled by Democrats."

There are states where the parties will be forced to work together. The new Democratic governors in Kansas, Michigan and Wisconsin all face legislatures controlled by Republicans. In North Carolina and Pennsylvania, Democrats picked up enough seats in the legislatures to break up GOP supermajorities and make vetoes from Democratic Govs. Tom Wolf and Roy Cooper meaningful.

In most states, though, single-party control will be the rule of the day. Only one state -- Minnesota -- came out of the election with a divided legislature. That's the first time there's been only a single divided legislature since 1914.

Does this mean that the federal system is working, with a range of different policies being pursued in different places? Or is it a sign of our fractured politics that states will be heading off in opposite policy directions?

Hederman suggests a wide-open marketplace of ideas is healthy. Conservatives and liberals find venues for their proposed solutions, which they hope will then spread to other states and ultimately force action in Washington. "You're going to see more competition among states," he says. "Instead of tax incentives, they'll be looking at ways to improve education and preparing their workforce."

Scott Pattison, the executive director of the National Governors Association, argues that the specter of partisanship, while real, is not as prevalent at the state level as it's sometimes portrayed. Governors may employ heated rhetoric on the campaign trail or while appearing on national media outlets, but in the end their job is still about managing programs and executing policies. They still share practical ideas on a wide range of issues on a bipartisan basis.

"I'm optimistic, at least in contrast to what you see at the national level," Pattison says. "Because it looks like we'll have continued gridlock in Washington, D.C., there will be lots of examples of positive action by both parties in the states."

State leaders want to show action on issues they're not seeing sufficiently addressed at the federal level, such as the opioid epidemic, Pattison says.

And it still happens, despite the partisan rancor and dysfunction in Washington, that ideas can take root and spread through both Republican and Democratic states on their way into federal law.

The Goldwater Institute, for example, helped promote so-called right to try legislation, allowing terminally ill patients the option of trying medication that haven't been approved by the federal Food and Drug Administration. 

"We started it in a blue state, then a red state, then a purple state," Riches says. "We ultimately passed it in 41 states. After 90 percent of the country had right to try laws, we passed a federal version of the bill just a few months ago. We got bipartisan votes all across the country and a bipartisan vote at the federal level as well."

Few ideas may gain universal traction in quite the same way. But with Democrats dominant in some states and Republicans ruling in others, lots of legislation will be passed at the state level in the coming years, even as Washington dissolves further into disarray.

"For the next two years, Washington, D.C., may be the 'Broadway' of political theater," says Jewett, the University of Central Florida professor, "but states will likely be the main stages for numerous political productions."

Alan Greenblatt is the editor of Governing. He can be found on Twitter at @AlanGreenblatt.
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