Federalism

Eliot Spitzer, Federalist

New York's next governor is more (and less) dangerous than you think

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Everything you need to know about Eliot Spitzer's future you can learn from two clicks on Amazon.com. New York State's attorney general is the subject of a comprehensive new biography, Spoiling for a Fight, by The Washington Post's white-collar crime reporter Brooke A. Masters. And Rudy Giuliani, that other New Yorker of wide forehead and wider renown, has won the hardcover treatment from Wayne Barrett and Dan Collins in a tome artfully titled Grand Illusion. Check out their Amazon pages and you'll find that the Rudy book is a modest success, ranked around #1,500, while the Spitzer book staggers along in the low 6,000s. (The numbers shift frequently, but Grand Illusion remains in the lead.)

Masters' book isn't struggling because of the writing (actually pretty thrilling) or the marketing (smart and aggressive). Barrett and Collins' Rudy bio actually poses a challenge to America's Mayor; there's time to convince skeptical Republicans, who'll be caucusing in Iowa 17 short months from now, that he doesn't have the stuff to be president. Rudy nemeses like Sally Regenhard, the mother of a firefighter killed on 9/11, can say they'll "swift boat" Rudy and send reporters scrambling for their laptops.

But no book, no bad press, nothing short of an asteroid can knock out Eliot Spitzer right now. The horror of Wall Street has brushed off a year of political attacks like Glenn Manning swatting away mosquitos. Ten months ago Spitzer had a 60-14 point lead over Republican John Faso. Today he has a 65-17 point lead. When Long Island politician Tom Suozzi entered the Democratic primary against Spitzer, bolstered by millions of bucks from Spitzer foes like Home Depot founder Ken Langone, he trailed Spitzer 69-14. Five months and $5 million later, he trails him 72-13. The attorney general's opponents, who only last year dreamed about kneecapping him (Masters quotes a bullish Langone: "He had his Pearl Harbor. Now it's my turn."), have retreated to a bunker somewhere south of Houston St, sweating bullets and planning challenges to Governor Spitzer in 2010.

Spoiling for a Fight, a critical exposé that provides plenty of detail about the candidate's failures and overzealousness, won't amount to a pebble in Spitzer's sprint to higher office. But it does something more important: It gets deep inside the head of the most successful lawyer/politician of the last decade. The first revelation is that, yes, Spitzer is as messianic as his worst foes dreamed. On summers off from college, he worked for Ralph Nader (of course) and then as a day laborer in various blighted corners of the Other America. Spitzer's mother tells Masters that the budding lawyer would try "so hard to talk to the young men and induce them to go to school or learn some trade, and it didn't take." The image of this young son of a real estate mogul, shaking the shovels out of his friends hands and spreading the gospel of SATs, is as terrifying as any subpoena.

Masters has a major breakthrough when she pins down Spitzer's philosophy of government. As a law student, Spitzer encountered the Federalist Society and found them racist and "economically impractical." But as the 80s and 90s rolled on and the federal government devolved more and more power to the states, Spitzer hauled out his Singer to craft a silk purse out of the sow's ear.

At a 1999 meeting, early in Spitzer's first term, Masters reports that the attorney general was using "federalism" as the rationale for more aggressive prosecution. "If the U.S. Constitution really did reserve power to the states, Spitzer told his staff, there should be lots of new issues for the office to take on." The attorney general appeared at a 1999 Federalist Society forum to rub their faces in his rationale: "Looking over the legal landscape of the past few years, there has been this tremendous redistribution of legal power away from Washington, away from the Federal Government, away from Washington, D.C., back to the states. And who better than state Attorney Generals to step into the void to ensure that the rule of law is enforced?"

The companies targeted by Spitzer—tobacco giants at first, then Wall Street firms—were stunned by Spitzer's view of the Constitution. But no one was more stunned than federalist lawyers. "Federalism was designed to restrain the state," explains Hans Bader, a consul at the Competitive Enterprise Institute. "The Founders believed in horizontal federalism, not just vertical federalism, and they frowned on the idea of making nationwide settlements in state after state. If a court was to do what Spitzer does, or state legislature was to do it, they would be violating the interstate Commerce Clause."

But Spitzer didn't stay up nights worrying about the U.S. Constitution's Commerce Clause. He was too busy reaping the dividends of political superstardom and, as the governor's race approached, promising he could reform government with the same aplomb. In her conversations with Spitzer, Masters divulges that he's a devotee of Theodore Roosevelt and the early 20th Century progressives, who rolled up their sleeves to regulate business practices and quickly upgraded their efforts into statist politics. (A prime example: Upton Sinclair, who wrote The Jungle in 1906 and 28 years later was running a quasi-socialist campaign for governor of California.)

Spitzer's public promises—like a debate pledge to bring universal health care to New York—have carried on his idea that states can be turned into Petri dishes for liberal politics. Masters cites the Supreme Court Justice Louis Brandeis as Spitzer's inspiration: "It is one of the happy incidents of the federal system that a single courageous State may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country," the justice wrote in his dissent in New State Ice Co. vs. Liebmann (1932).

It's a powerful statement, but read it again. That "without risk to the rest of the country" nicety assumes an awful lot about the effects of an activist government on its people. As does Spitzer. The greatest irony Master teases out about the attorney general's career is how his ballyhooed battles for "the common man" or "the people who play by the rules" rarely redound to the benefit of those Norman Rockwell characters. In practice, Spitzer's settlements have stepped up burdens on consumers and scared small investment firms out of the racket. Newsday columnist Raymond J. Keating summed it up in one phrase: "Spitzerism leads to more regulation and higher costs."

Some New Yorkers know this; most of them don't, or don't care. There's literally no chance that the millions of voters who've followed Spitzer this far will reject him at the polls in ten weeks. But this election will probably signal the end of Spitzer's rock star period. New York's sclerotic state government is unlikely to make the boldest reforms Spitzer jaws about. The groups that will do the most to elect him—unions, liberals, minority voters—will blanch at the compounds Spitzer wants to mix in the New York laboratory. New York Daily News political reporter Ben Smith points out that Spitzer has "backed state financing for parochial schools and 'roving' wiretaps for police… [and] calls the New York Civil Liberties Union's resistance to the wiretap law 'somewhat ludicrous.'"

But even when Governor Spitzer is beset by troubles at his Albany desk, his influence will hardly dim. The "Spitzerism" that Masters and Raymond J. Keating speculate about has spread into every attorney general's office and Democratic club in the country. The idea of state prosecutors as caped avengers and states as laboratories for liberalism have crawled out of the grave and into the political mainstream. No matter what happens to their most successful advocate, Spitzer's innovations aren't going to be stopped by borders or setbacks. Not even by very convincing books.

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