“California Democrats like to imagine that they run all of America, and thank heavens they don’t. The progressive imperialists are now trying to regulate digital commerce nationwide under Sacramento rules, and the good news is that the Justice Department is pushing back to protect the free flow of information and the Constitution’s separation of powers,” writes The Wall Street Journal Editorial Board. American civics courses discuss the constitutional Separation of Powers principle and the principle of States’ Rights. California’s legislature took steps to re-instate net neutrality for California consumers; however, the Federal Communications Commission (FCC) reversed this policy last year. Regardless of your opinion on the benefits or lack thereof of net neutrality, it is evident that such a law seems in conflict with Congress’ ability to regulate interstate commerce. The article continues, “The 1996 Telecommunications Act grants the FCC authority over all ‘interstate and foreign communication.’ The internet by definition is interstate communication.” The Constitution’s Commerce Clause says that Congress shall have exclusive power to regulate interstate commerce.
Activist states like California seek to establish their role as the first mover in many areas of public policy. Many times, these states will enact legislation in order to attract corporate and federal attention to a given issue. David Shepardson at Reuters writes, “five industry groups representing major internet providers and cable companies filed suit on Thursday seeking to block a Vermont law barring companies that do not abide by net neutrality rules from receiving state contracts…Other states, including New York, New Jersey, Rhode Island, Montana, and Hawaii, have adopted similar rules to bar state contracts from companies not complying with net neutrality protections.” In addition, California passed Assembly Bill 375 (A.B. 375), a consumer data privacy law that requires American companies to grant consumers more control over their personal data. California’s law is the first of its kind in the United States and it has prompted debate over the burdensome requirements imposed on businesses, as well as the government’s role in regulating personal data. The extraordinary cost of A.B. 375 is sufficient for the federal government to intervene, as such a regulatory scheme requires American companies, which have data on California consumers, to develop controls that in-effect covers their entire American business.
Progressive states like California and New York often find issue with the lack of national attention to various issues. When economically dominant states pass unique legislation, corporations and federal regulators scrutinize the effects of such legislation. These states may indirectly influence regulators to lobby for a federal standard, which is typically less progressive given the nature of national politics. In the specific case of California’s Net Neutrality law, the legislature demonstrated its inability to accept that the federal government disagreed with its policy position. One may refer to this as scorn for the American voter; however, this is likely more indicative of the looming debate over this policy. California may have its wishes fulfilled should the Congress vote on federal Net Neutrality legislation.
California has been an easy target of conservative and libertarian political activists during the Trump Administration. However, there is value in a state, especially one with the world’s 5th largest economy, bringing national attention to any given issue. After all, states are “laboratories of democracy” to quote the late Supreme Court Justice, Louis Brandeis. “No one pretends that democracy is perfect or all-wise. Indeed, it has been said that democracy is the worst form of government except all those other forms that have been tried,” said Winston Churchill.
Political activists, mainly liberals from large, urban centers, have begun discussing the undemocratic nature of the United States Senate. Ironically, they found no fault in this system while their ideologues controlled the federal government. They fail to acknowledge the role of states like California or New York in dictating public policy. While these states may be under-represented in the Senate, their role in setting the tone for federal public policy is unparalleled. Progressive activists often ignore the reality that the news media, largely centralized in populous, urban centers, plays a vital role in dictating public opinion. On the surface, progressive imperialists’ claim may hold water, but the reality is far less convincing given further scrutiny.
America was established on the principles of our Constitution and a restrained federal government. States must continue to be “laboratories of democracy” and should experiment, when necessary, with innovative public policy; however, states shall not interfere with Congress’ ability to regulate interstate commerce. Senator Ben Sasse said, “[We] badly need to restore the proper duties and balance of power to our constitutional system.” Progressive states like California and New York will continue to regulate, but they must do so without subduing the will of the American people.
Mitch Nemeth holds a Master in the Study of Law from the University of Georgia School of Law. His work has been featured at the Foundation for Economic Education, University of Georgia’s The Arch Conservative, Merion West, and The Red & Black.