WILL Press Release | WILL Launches New Project on Federalism

Center for Competitive Federalism aims to restore shared governance between States, Washington, DC

July 11, 2016 – Milwaukee, WI – The Wisconsin Institute for Law & Liberty announced today the creation of the Center for Competitive Federalism (CCF). The CCF will engage in strategic litigation and public education to advance the “competitive” federalism established by the Constitution – a system in which the authority of both the states and federal government is carefully delineated and circumscribed and which is informed by the need to protect the liberty of persons and not the prerogatives of government.

Mario Loyola, WILL senior sellow, is the Director of CCF. He served in the Pentagon as a special assistant to the undersecretary of defense for policy, and on Capitol Hill as counsel for foreign and defense affairs to the U.S. Senate Republican Policy Committee, and a senior advisor for Senator Ben Sasse of Nebraska. Loyola is a contributing editor at National Review and was a senior fellow at the Texas Public Policy Foundation, where he was director of federalism and constitutional studies.

Jake Curtis is associate counsel and federal litigator at WILL. Prior to Joining WILL, Jake served as State Senator Duey Stroebel’s Policy Director and as a litigation and government affairs associate at one of Wisconsin’s largest business law firms and a small firm specializing in municipal labor and employment matters.  He previously served as an Ozaukee County Supervisor as well as a special appointed Assistant District Attorney in Milwaukee County.

CCF is also releasing its first report, Wisconsin not Washington, that examines how the relationship between the federal government in Washington has hamstrung Wisconsin policy innovation through the use of federal dollars and has contributed to a steady rate of growth in state government spending and regulation.

The report outlines multiple policy prescriptions for unleashing the creativity of policymaking and controlling the growth in state government spending:

  • Commission on Competitiveness. One overarching proposal would be to have a commission on competiveness recommend legislative and regulatory reforms to make Wisconsin more competitive again. The council could issue recommendations on workforce training and education, infrastructure, manufacturing, high technology, and ease of starting up and operating a small business.
  • Coercive Federal Funds Report. Make the definition of “coercion” in federal funding programs that was articulated in NFIB v. Sebelius (2012) an operational element of state policy. The state should review agency requests for funding, and identify those that involve federal funds with “coercive conditions” attached. State legislators and voters alike could then start each budget cycle with full awareness of which sources of funding in the state budget are instruments of federal manipulation.
  • Summit and declaration of states. One way to deal with the dangers of “cooperative federalism” is to reach agreement with other states on how they will handle conditional federal funds and conditional regulation. A short declaration of principles, in which a large number of state governors and legislators commit to refusing conditional federal offers of money and/or regulatory “permission” under certain circumstances, would have a high likelihood of causing a sea change in how Congress structures its fiscal and regulatory programs viz-a-viz the states. Those states whose elected officials are at odds with federal impositions must start acting as a block. No one state is in a position to defy the federal takeover of state policies. Only by working together will they be able to stand up to Washington, and force Congressional delegations of both parties to protect their states from the grossly disparate treatment implicit in federal threats.
  • Separation of Feds and States. Prohibit state regulatory agencies, and political subdivisions of the state, from cooperating with federal regulators with respect to certain programs deemed coercive. One example would be to prohibit state and local officials from participating in any new federal scheme to limit Second Amendment rights through state police officers.

Rick Esenberg, President and General Counsel at WILL noted, “There is a direct, causal relationship between the growth of federal spending and the growth in state spending. The result is an overtaxed economy and stifled policy innovation. The CCF’s new report outlines how to combat and pushback to preserve states’ rights.”
The CCF is based at WILL in Milwaukee and the scope of its activities will be national. It will seek the best opportunities for meaningful litigation and will direct its educational efforts at think tanks and litigation centers throughout the country.

Mario Loyola, WILL Senior Fellow and Director of the CCF said, “Wisconsin has a proud tradition of policy innovation – from school choice to the reforms of Act 10. We seek to explore that history, expand on that progressive tradition, and where appropriate pushback on the federal government through litigation and assert more control over Wisconsin by Wisconsinites – not bureaucrats 1000 miles away in Washington.”

The report can be downloaded here.


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