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Thursday, March 25, 2004

Federalists In Our Midst?
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Yesterday's ruling in Nixon v. Missouri Municipal League turned on the interpretation of a few words in one section of a particular statute. It is my guess that it won't be long before the first draft of history is re-written so that the case is a reflection on the operation of federalism in telecommunications policy. (Perhaps this is more of a reflection of the amount of time I spend with politicians working in state capitols. To them, almost anything out of Washington D.C. is a matter of federalism.)

It is useful to remember that a champion of federalism is not necessarily the same as a champion of states' prerogatives. Federalism is a particular system for organizing government and its powers. Specifically, it distributes those powers. As outlined in the Declaration of Independence, the Constitution, the Federalist Papers and other documents of the Founding, American federalism distributes powers across three sovereign levels: the individual, the several states, and the national government. If federalism has a bias, it is to the amount of government rather than the locus of its power. The system is designed to limit public activity and to preserve personal autonomy.

Telecommunications regulation has its share of fair-weather federalists. In 1999, the Court wrote in Iowa Utilities Board, "But question in this case is not whether the Federal Government has taken the regulation of local telecommunications competition away from the States. With regard to the matters addressed by the 1996 act, it unquestionably has." Recall that AT&T was the big winner of that case arguing for local competition rules from the national government. The shoe is on the other foot in the unbundling cases. Indeed, the TRO petition at the D.C. Circuit was from USTA, who argued for national rather than state rules to govern unbundling.

This week's decision pitted "local" interests against a state attorney general and the FCC's refusal to preempt a state statute. (Characteristically, the FCC managed to end up on all sides of the issue. The Commission's action went against the Municipal League yet three commissioners wrote in favor of policies that favor municipal entry into the marketplace.)

Federalism is not the same as support of state or local power over national authority. Nor are federalists hypocritical to sometimes argue for state authority while other times arguing for authority to reside in Washington, D.C. True federalism requires prudential distribution of authority and responsibilities. While preemption questions are near always difficult and invariably contested, today's ruling is a welcome addition to the canon. It gives strength to the idea of a national communications policy, a policy that is sorely needed.

An earlier post on federalism is at this blogsite.

posted by @ 11:33 AM | General

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