Tuesday, July 3, 2012

The Policy Debate 2012 Infrastructure Topic - States CP

A Tutorial for Beating the States CP

States CP and Federalism DA
There are a few ideas for Affs that I really like and hopefully they avoid 'T' challenges because I see no point in getting clever with things like pipelines, broadband, and other kinds of questionable "transportation" infrastructure this early in the season.  Developing Affs can be difficult because at some point in the process you need to consider the Negs that will be run and then tweak the Affs to avoid the most obvious Neg responses.  I think, for example, the States Counterplan (CP) and Federalism Disadvantage (DA) will be everywhere and in the past there have been some very strong States CPs.  CPs are tough enough for novices since they tend not to understand them.  The novice 2AC will usually read a boiler-plate response, throw in some generic perms and hope its enough to take out the CP.

Problems With the Counterplan
There are some elements of transportation infrastructure that I think are difficult to manage with a States CP so I think many of the States counterplans will link to surface transportation and in particular roadways (which can include rail).  Affirmative debaters need to understand, that federalism and the general concern of USFG infringement of state's rights has been argued since the Constitution first mandated the construction of "post roads" as a federal responsibility.  Therefore, there is a huge historical precedent in favor of the Affirmative.  States face key challenges which have allowed a continuation of USFG oversight of the national highway system.

From the earliest times when states in the west needed to encourage settlement, funding for roads has been a problem.  The USFG built its post roads and gave land grants to the states so they could finance general-use roads.  Today state funding for transportation infrastructure continues to be a problem mainly because most highway construction is funded by use-fees and federal excise taxes on gasoline.  State CPs will need to fund their plans, so the plan will either require the current revenue stream be turned over to the states, new taxes be levied or private investment be encouraged or, realistically, some combination of the three.

A second key challenge for the states revolves around interstate commerce.  The Constitution gives Congress the power to regulate commerce with foreign nations and between the states.  State CPs will need to argue that oversight of Interstate Commerce does not require control of the Transportation Infrastructure.  But once again, this argument is not a 21st century debate since it has been argued before.  If the interstate highway system serves as an instrument of interstate commerce, USFG oversight may be a Constitutional mandate:

"The applicability of Congress' power to the agents and instruments of commerce is implied in Marshall's opinion in Gibbons v. Ogden, where the waters of the State of New York in their quality as highways of interstate and foreign transportation were held to be governed by the overriding power of Congress. Likewise, the same opinion recognizes that in ''the progress of things,'' new and other instruments of commerce will make their appearance. When the Licensing Act of 1793 was passed, the only craft to which it could apply were sailing vessels, but it and the power by which it was enacted were, Marshall asserted, indifferent to the ''principle'' by which vessels were moved. Its provisions therefore reached steam vessels as well. A little over half a century later the principle embodied in this holding was given its classic expression in the opinion of Chief Justice Waite in the case of the Pensacola Telegraph Co. v. Western Union Telegraph Co., a case closely paralleling Gibbons v. Ogden in other respects also. 
''The powers thus granted are not confined to the instrumentalities of commerce, or the postal service known or in use when the Constitution was adopted, but they keep pace with the progress of the country, and adapt themselves to the new developments of times and circumstances. They extend from the horse with its rider to the stage-coach, from the sailing-vessel to the steamboat, from the coach and the steamboat to the railroad, and from the railroad to the telegraph, as these new agencies are successively brought into use to meet the demands of increasing population and wealth. They were intended for the government of the business to which they relate, at all times and under all circumstances. As they were intrusted to the general government for the good of the nation, it is not only the right, but the duty, of Congress to see to it that intercourse among the States and the transmission of intelligence are not obstructed or unnecessarily encumbered by State legislation.''

(src: http://caselaw.lp.findlaw.com/data/constitution/article01/28.html)

A third challenge for states is the federal requirement to provide for the common defense and so links the interstate highway system to military use and national security requirements.  Indeed, President Eisenhower created a large portion of the interstate highway system as part of the 1956 legislation by proclaiming the interstate highway system served a "national purpose" when the highways were called the "National System of Interstate and Defense Highways".  Besides the obvious uses of highways, the system was to serve as means of transporting military assets across the country and provide access for emergency or evacuation responses.

Another issue known as the donor-donee problem has implications on both sides of the debate.  Under current funding models, each state contributes to the federal Highway Trust Fund based on usage.  Under this formula states with more traffic contribute more than states with less traffic.  The money in the trust fund is then allocated back to the states according to an apportionment formula (each state receives a portion proportional with the amount donated) and the remaining (majority) portion of the funds are allocated to various projects in various states competitively in a sort of "biggest bang for the buck" competition with plenty of political arm-twisting and earmarks thrown in for good measure.  The basis of the dispute arises from some states (donor states, usually southern and midwest) claiming their donations are being used to finance projects of other states (donee states, usually in the northeast corridor).  These arguments usually arise anytime new legislation is proposed to alter how funds are allocated.  It should not be hard to imagine that some states have much more highway tax revenue than others so the federal programs have created a sort of leveling effect despite the occasional flare up of donor-donee disputes.  The deficiency of revenue in some states may mean that if those states self-funded their transportation projects, they may not be able to live up to public expectations which would have a significant political backlash and this fact has deterred some Congressmen from supporting devolution (transferring powers from the USFG to the states) for infrastructure investment.  Recent reports by the government General Accounting Office, claim that all states are donee states now because they are receiving more funds than they put in because the USFG transfers funds into the program from other sources.


The Generic States CP
Let us assume, Aff is running a case where the USFG institutes funding for major upgrades to the transportation infrastructure of highways, perhaps sensors for traffic management or some such. At its most basic, the States CP will claim the solvency of the Aff case by changing the actor from the USFG to the 50 States.  Even if the CP plan calls for all gasoline tax revenue to be returned to the states, funding will be a major problem.  The problems discussed above will kick-in.  Some states will be under-funded.  If the tax is pooled and distributed (who will oversee this?) the donor-donee issue will kick-in.  For this reason, it is almost certain the states will need investment partners and so the additional funding will probably come from private sources.  Indeed, the so-called public-private partnerships (PPP) are kind of in vogue right now and many states have already begun partnering with private concerns to help finance the transportation projects the states desire.  I will tell you, there is evidence - I have a copy - that these partnerships can and do fail.

States CP Solvency
Aff should never overlook solvency when faced with a States CP.  First of all, if you have chosen solvency cards that can be easily covered by the States CP you had better have a strategy for taking out the CP another way.  In my opinion, the best defense is to read solvency cards in the 1AC that make it very difficult for the States to claim they too can solve the same harms.  For example, a system for tracking shipping containers in real-time as they move along highways or rail will be impossible to implement at the State level.  In any case, solvency deficiencies can be Affirmative's biggest opportunity to overcome the CP.  A 50 state (or even multi-state) CP will likely require a huge amount of coordination and cooperation between the states and this would be unprecedented.  Using PPP's to build a new highway toll-gate is one thing (and sometimes it works out) but implementing a multi-state infrastructure upgrade is likely beyond the ability of the states without some kind of federal oversight.

Competitiveness and Net Benefits
Of course all CPs must be competitive (mutually exclusive or net benefit advantage) and generally, the States CP will claim competitiveness by avoiding disadvantages which only the USFG plan triggers.  I mentioned at the start of this discussion, the Federalism DA.  There may be others that will be popular like a Spending/Inflation DA or Politics/Political Capital DA.  With the exception of the federalism DA, similar DAs can be applied to states.  For example, states will spend. Spending takes money out of other programs, harms arise as a result. Or, the Governor exhausts political capital to push through her infrastructure agenda, she is unable to muster support for other needed programs, harms arise as a result.  To answer the Federalism DA, I would first consider that uniqueness and impacts will be empirically denied based on 200+ years of federal funding of transportation infrastructure projects.  As I have said previously, these debates have persisted through the centuries and yet Congress continues to see the merits of USFG oversight despite any concerns about federalism and certainly one may reasonably ask, why have the impacts not already occurred?

Everyone probably knows the USFG is not in the construction business.  They basically administer projects and do so at a very high level with minimal direct involvement.  The hands-on engineering and implementation is always managed by private partners.  This resolution provides another level of abstraction because the USFG must significantly increase its investment not its involvement.  This means it functions as a venture capitalist putting up money and expecting a payback.  Given the fact states are unlikely to fund the transportation infrastructure without partners, there is a really good chance the Aff can Perm: Do both.  The states can set the project priorities and manage them while the USFG can be the financial backer.  Really, this is kind of how it works now but the funding model and partnerships will be changed under the permutation to allow both plans to run concurrently assuming the Aff plan is not severed by the perm.  This is one example of several possible permutations to be considered based on the dynamics of the round, the Aff case, and net benefits being claimed by the Neg.

I suggest (especially novice) debaters familiarize themselves deeply with counterplan theory.  You need to understand that a counterplan is a shift in advocacy from the status quo.  In other words, the Negative is basically acknowledging there is a problem in the status quo that needs solved and this, theoretically at least, is a risky strategy.  Also, since CPs have various kinds of statuses, conditionality and possibly elements of the plan itself, Affirmative debaters should spend time addressing the theory issues.  Even the idea of a 50 state (or multi-state) fiat is a theory issue.  Because of the funding and coordination issues, plan inclusive counterplans are likely and thus a theory topic. In my opinion, theory can be a powerful tool but too many Affirmative teams tend to blow through it in a kind of "throw stuff against the wall and see what sticks" approach that basically communicates little to the judge.  If you are going to argue theory (and I say you should) then argue theory, don't just read it and expect the judge to argue it for you.

Boiler-plate 2AC
Despite the pain counterplans create for the Affirmative, they will not go away and from my point of view, I see them as legitimate Neg arguments. Why SHOULD we do the plan if Neg offers a plan that solves the harms just as well and generates a benefit that is not possible with the Plan?  Novices will face many counterplans during the course of the year.  From my point of view, the boiler-plate attack including the conventional theory arguments must be read.  But there is opportunity when facing the states CP to avoid taking a defensive position and assume an offensive position and directly attack the claimed solvency, run DAs against the CP and turn the links to the CP net benefit if possible and do the impact calculus.  This is pretty standard stuff which is within the skill set of the average novice.  Perms, advanced theory, and arguments of this nature are not always required to take out a Neg argument like the States counterplan but to be sure, some CPs can be very, very tough so there is no substitute for experience in dealing with these.

Lets see what emerges from the camp files, then it should be possible to examine some of the evidence and argument in specific detail.

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