Playing Hardball
This article appears as part of a special issue of The American Prospect magazine on state policy divergence and aggression. Subscribe here.
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-to-be 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.”
The best way to force Republicans to re-evaluate their asymmetric interstate aggression is to remove the asymmetry.
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.
The hallmark example of interstate aggression in recent years is Texas moving undocumented migrants to blue-state cities. AP Photo
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 red-state 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 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 low- and 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 legislative 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.
The most aggressive strategy blue states can deploy is making their states great places to live.
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 269-269 Harris-Trump tie, allowing likely Republican majorities among U.S. House delegations to elect Trump president.
Democrats ultimately hit on a counter-hardball 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 winner-take-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 mid-20th-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. Blue-staters 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 red-state 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 blue-state 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.
Arkadi Gerney and Sarah Knight are strategists whose work focuses on the intersection of law, politics, policy, and democracy.
The American Prospect is devoted to promoting informed discussion on public policy from a progressive perspective. In print and online, the Prospect brings a narrative, journalistic approach to complex issues, addressing the policy alternatives and the politics necessary to create good legislation. We help to dispel myths, challenge conventional wisdom, and expand the dialogue.
Founded by Robert Kuttner, Paul Starr, and Robert Reich, read the original 1989 prospectus for the magazine.
To learn more about our history, check out this 2015 piece by Starr and Kuttner, reflecting on 25 years of politics and change.
American Prospect, Inc., is a 501(c)(3) nonprofit corporation headquartered in Washington, D.C.
You can support our mission with a subscription or a tax-deductible donation.