Roger Solt, University of Kentucky

1999 - Multiple Choices: Testing Educational Policy

Introductory Note This essay was written three years ago for inclusion in the juvenile crime DRG. Since the state counterplan figures once again to be a primary negative strategy on this topic, it is reprinted here. I have, however, added a brief discussion at the end of the article, relating its contents more specifically to the present topic.

The State Counterplan

The counterplan began to emerge as a negative strategy in the mid-1970s, and the state counterplan was the first such generic position to be developed. As a negative argument it has the benefit of utter simplicity. It claims that while the policy the Affirmative advocates is a good idea, the Affirmative has selected the wrong agent; the states rather than the federal government should enact the plan. Simple as this idea may seem, over the past two decades an elaborate, even labyrinthian, set of theory arguments has developed concerning the legitimacy of this position. Most of the major theory controversies surrounding counterplans in general are implicated in the debate over the state counterplan, and it is a position which is sure to be commonly debated on the upcoming topic.

My purpose in this article is to review the major theoretical and substantive arguments for and against the state counterplan and to offer some tactical tips to those engaged in this debate. (I will, however, only speak briefly to the plan inclusiveness of the state counterplan since this is the subject of a separate article in the previous Debater's Research Guide: Juvenile Crime handbook by Paul Skiermont.) This discussion should have the twofold benefit of directly addressing an important negative strategy and of reviewing basic counterplan theory. Before beginning, however, it is important to be clear on exactly what is at stake in this discussion. The state counterplan, I believe, will be a vital part of the negative arsenal on this topic. This resolution is incredibly expansive, one of the broadest which I've encountered in my twenty-odd years in debate. The negative will not be prepared to effectively contest the specifics of every affirmative case they encounter, but the state counterplan gives them a generic strategy of considerable adapt ability and strength. The state counterplan, like most agent counterplans, is designed to capture the affirmative advantage (because it duplicates the plan's mandates), while avoiding disadvantages linked to federal action. On this topic, there are several powerful negative arguments, including federalism, federal spending, and presidential political popularity, which can serve as net benefits to the counterplan. The position is further strengthened by the fact that secondary education policy is almost exclusively a concern of state and local governments. Though federal politicians may bemoan the poor state of secondary education, they actually have very little to do with it. Thus, the state counterplan seems to be a substantively sound as well as strategically strong position.

If the state counterplan is a powerful tool for the negative, it is a correspondingly threatening argument against the affirmative. If the negative can use its counterplan to solve for all or most of the affirmative advantage, then the debate effectively shifts onto negative ground -their disadvantages to federal action. This obviously negates the affirmative's treasured side advantage, the ability to select the ground for the debate. Further more, the state counterplan poses a difficult target to attack. The Affirmative obviously cannot attack its substantive mandates since they are those of the Affirmative plan as well. There are potential disadvantages to state action, but these tend to have much less impact than the potential disadvantages to federal action, and the negative may be able to dodge such disadvantages based on the way in which it words the counterplan. (For example, they may be able to spike state spending.) Thus, an effective attack on the state counterplan is likely to have to take the form of a theory objection. Here the affirmative might seem to be on relatively strong ground. There is, after all, something odd about the state counterplan. It advocates the virtually simultaneous adoption by all fifty states of a virtually identical policy. This is something that rarely if ever occurs in the political world, leading one to the suspicion that the power of the state counterplan is merely an artificial artifact of fiat. Still, this intuition that there is something rotten at the heart of the state counterplan is more easily felt than it is effectively argued. Really sophisticated theory arguments are a rarity in college, let alone in high school debate. Yet the ability to advance such arguments may well be vital to the affirmative on this topic.

The first theoretical level at which the state counterplan can be attacked is topicality. This is not, I think, either initially or ultimately a very powerful attack, but the affirmative does at least have a couple of potential arguments here. Based on common understanding, the state counterplan is clearly nontopical. The federal government is best understood as the central government located inside the Washington, D.C. beltway. The states are therefore a separate level of government, They are, of course, part of the federal system, but they are not the federal government This conclusion has been contested in two ways. First, it is argued that the states acting together constitute the federal government. Second, it is sometimes argued that the states acting identically and in unison are engaged in what is effectively federal action. To the "states acting together are federal" argument, the negative has an easy response. In the counterplan, the states may be doing the same thing, but they are not acting together. The counterplan is not an interstate compact; it simply embodies the normal legislative process of each state acting separately. As to the "effectively federal" argument, there is still a difference between an effectively federal and an actually federal policy. One is literally undertaken by the federal government, while the other merely has the same effect as federal action. Second, the counterplan may not be "effectively federal" if it gains greater solvency or avoids some disadvantage linked uniquely to federal action. Another way to answer both of these affirmative topicality arguments is to allow for local variation within the state counterplan. This could potentially damage counterplan solvency since each state would not be doing exactly what affirmative solvency authors advocate, but it could also strengthen solvency by allowing for adaptation and experiment. Finally, the negative can also defend the legitimacy of topical counterplans. (The plan is the focus of the debate, so any policy which provides a reason to reject the plan is fair ground for the negative.) Though some judges reject this theory, many find it persuasive. But since the negative can probably win that the state counterplan is nontopical (or at least reasonably non-topical), then a "counterplans can be topical" argument is likely in this context to be no more than a final fallback.

A second theoretical level on which to attack the state counterplan is competitiveness. It is clear that the counterplan is not mutually exclusive with the Affirmative. Even if the plan and counterplan enact identical policies, states and the federal government could do the same thing simultaneously. The basic question of competitiveness, however, is rarely whether the plan and counterplan could be done together but whether they should be that is, are the net benefits of adopting the counterplan alone greater than the net benefits of doing both together. It might be argued in this case that there is no net benefit to federal action duplicating exactly what the states have already done, but this is not necessarily true. All plans are subject to some degree of policy failure to circumvention, underfunding, repeal or simple insufficiency. Thus, the argument is that "redundant' policies are desirable because they assure a higher level of solvency more resources, more enforcement, etc. The Rodney King beating provides an example of beneficial redundancy; when the state courts failed to vindicate his rights, it took a federal remedy to do so. In practice, there is a good deal of redundancy between state and federal action, implying the prima facie persuasiveness of the "do both" permutation. The redundancy is good argument carries at least presumptive weight most of the time, but it is clearly not irrefutable. For example, it can be argued that duplication diffuses responsibility and that therefore either agent acting alone might be better than both acting together. More importantly, though, any risk of a disadvantage to federal action will probably be enough to outweigh the advantage of policy redundancy.

What should be clear from this discussion is that competitiveness is not a silver bullet for the affirn1ative against the state counterplan. Rather, it is the nexus in which the various net benefits of plan and counterplan, separately and in combination, come together for their ultimate policy evaluation. To defend counterplan competitiveness, the affirmative must show that even in light of the counterplan its plan is still a good idea, and this is largely a substantive rather than a theoretical debate. One way in which the afflm1ative can more effectively engage this debate, however, is to look carefully at the uniqueness of disadvantages relative to the counterplan. The federalism disadvantage, for example, may not work as well in combination with the state counterplan as is commonly believed. If the states are all enacting essentially the same policy, then the benefits of state action in terms of local adaptation and experiment or democratic responsiveness seem extremely slim. Even the argument that federal imposition leads to further centralization of power may not matter much if the policy being imposed is one that everyone agrees is a good idea. On the other hand, extending federal authority deeper and deeper into the realm of crime control may be bad in itself"; thus, there may be versions of the federalism disadvantage (or values of federalism) which the state counterplan doesn't compromise. The moral for the negative here is that they need to be careful in selecting their federalism impact to make it consistent with their counterplan. For the affirmative, the lesson is that the counterplan can undercut the negative's own net benefit. A similar argument is possible in terms of the Clinton disadvantage. If, as is commonly argued, the President receives credit or blame for whatever happens in America, then the popularity or unpopularity of the counterplan might well be reflected on Clinton. The recent welfare debate offers an example of the President's ability to coopt state programs. Clinton's endorsement of Wisconsin ' s welfare reform program is said to have undercut the Republicans on this issue. It is reasonable, of course, to think that Clinton will be more strongly implicated in policies for which he is directly responsible, but if, for example, Congress enacted the plan and the states the counterplan, it is not clear that Clinton would receive much more credit or blame for the one than the other.

Since the basic equation of counterplan competitiveness is that the counterplan alone must be better than the plan plus the counterplan, the affirmative should always advance the "do both" permutation. As I've noted earlier, while not a silver bullet, this permutation does capture any unique advantages associated solely with state action and shift the debate back to the question of whether there is a disadvantage to the federal government acting as well. Beyond the traditional "do both" permutation, the affirmative may also attempt to offer various permutations which combine federal enactment with state funding or enforcement or perhaps even state enactment with federal logistical support. For somewhat complex reasons, I believe that these are not legitimate permutations. A commonly accepted standard is that a legitimate permutation combines all of the Affirmative plan with all or part of the counterplan. A permutation which adds a policy element not found in either plan or counterplan functions in effect as an intrinsicness argument against the counterplan' s net benefit and therefore is probably illegitimate. A permutation which eliminates something from the plan is in effect a plan severance argument, another approach debate theorists generally reject. The "do both" permutation is clearly legitimate and there are other kinds of legitimate permutations (those which combine a physical or logical component of the counterplan with all of the plan), but the other permutation examples listed here are probably unsound. If the Affirmative plan as initially advanced involves both federal enactment and implementation, then to have the states either solely enact or implement severs out a portion of the original plan. Plan severance, and severance permutations, make the plan a moving target, undermining both consistent advocacy and in-depth analysis. Thus, these permutations are probably unacceptable. (There might, however, be ways of wording a plan which would make these permutations more legitimate. The plan might, for example, provide for federal implementation unless the states chose voluntarily to implement its provisions. Or the plan might merely be offered as a federal recommendation to the states.)

Another theory issue related to competitiveness is the question of presumption. The status quo is usually said to enjoy presumption in its favor because of a general risk of the unknown. But what happens then in a counterplan round where both teams advocate change? Some say that the negative automatically loses presumption because they have abandoned the status quo or because the counterplan needs to be a reason to reject the affirmative. Others argue that the negative always retains presumption, either because presumption is always against the resolution or because the affirmative always has the primary burden of justifying its plan (since the plan is the central focus of the debate) or because affirmatives win more than negatives so negative presumption offsets side bias. Still another position claims that it is the degree of change which determines presumption. In this case, the state counterplan probably retains presumption because education is currently a state issue, making the counterplan less change than the plan. As exciting as these theory issues may seem in their own right, it is less clear that the question of who has presumption really matters in practical terms. According to most theorists, presumption is simply a tie-breaker, and arguably few if any debates end up as ties. However, I think this conclusion that presumption doesn't matter is a hasty one to draw. Affirmatives are often unable to win an increment of solvency to either plan or permutation over and above the state counterplan. But negatives, almost as often, are unable to win a net risk to a disadvantage. More often than debaters realize, agent counterplan debates do end up as ties, giving presumption arguments value for both sides.

A third major theory argument which can be made against the state counterplan is to indict it for being plan inclusive. (That is, it advocates part of the affirmative plan in this case the specific mandates without the federal agent.) Against counterplans which make only a minor change in the affirmative plan, the inclusiveness objection can be a powerful argument, and based on a kind of slippery slope analysis some judges therefore reject plan inclusive counterplans altogether. Nonetheless, the state counterplan seems on balance to offer a counter-example of why some degree of plan inclusiveness is at least sometimes legitimate. First, the question of state versus federal action is a central issue in the education debate. Second, the states are arguably a more germane actor than is the federal government in secondary education policy. Third, deprived of any agent counterplan option, the negative figures to be at a huge competitive disadvantage on this topic. Fourth, the state counterplan is pretty clearly non-topical. In response to an affirmative claim that the federal government should increase academic achievement in secondary schools, it is a perfectly sensible response to say that the states should do so instead. Even if topical plan inclusive counterplans are illegitimate, non-topical ones are arguably fair game for the negative since they deny a central element of the resolution. Thus, while it is generally a good practice for the affirmative to indict plan inclusiveness whenever it appears, this seems unlikely to be a winning argument for most judges against this particular counterplan. For a fuller discussion of these issues, see Paul Skiermont's article.

None of the above theory arguments seems likely to decisively defeat the state counterplan. This leaves the fourth and basic theoretical objection that the state counterplan relies on an abuse of negative fiat I believe that in theoretical terms this is the most promising line of attack. As noted above, there is an intuitive sense that it is illegitimate to fiat a state behavior (uniform, simultaneous action) which never or almost never occurs. Still, it is difficult to translate this intuition into a sustainable argument, and the theory of negative fiat is, quite frankly, a morass, a swamp filled with exotic species of fiat theory and no theoretical consensus. Nonetheless, since this seems to be the best hope for defeating the state counterplan on theory grounds, we will have to brave these murky waters.

The problem of negative fiat is two-fold. First, most theorists agree there should be some form of negative fiat. Affirmative fiat is simply a shorthand for saying that the plan should be adopted whether or not it actually will be. Negative fiat, reciprocally, is based on a claim that the counterplan should be adopted, regardless of its actual chances of passage. There are at least two persuasive reasons why there should be some negative fiat. First, it is grounded in the logic of policy discourse. Opponents of a policy frequently make counterproposals, and if the purpose of policy debate is to find the best policy, then allowing the judge to endorse a counterplan clearly advances this goal. Second, as a matter of competitive equity, it seems fair that if the affirmative can propose change without showing political practicality, the negative should be able to do so as well. The negative already suffers a severe competitive disadvantage, so eliminating the counterplan from its arsenal would only make debate that much more competitively lopsided.

But if the negative has fiat power, how far does that power extend? Affirmative fiat is limited by the resolution. (Even if one believes that plans can avoid disadvantages by extra-topical means, no one argues that extra-topical provisions can generate a ballot justifying advantage.) But negative power to imagine non-topical alternatives is completely unbounded. If no limits are placed on negative fiat, they could potentially advocate changing the laws of nature (bullets will pass through people without injury), or, only slightly less fancifully, advocate that all juveniles become studious and thus raise their grades. In response to such an objection, one might say that fiat is neither an act of individual choice nor of divine intervention but rather relates to choices made by institutions. But the institutional standard is itself subject to abuse. Private corporations are institutions, but it hardy seems legitimate to respond to a government plan to increase pollution control by saying corporations should voluntarily control their own pollution. Foreign fiat suffers from a similar problem. Against a case which cracks down on Chinese human rights abuses, it seems intuitively illegitimate to argue simply that China should stop abusing human rights. What these last two examples suggest may be the major problem with many counterplans that is, they seem to beg the question implied by the topic. A pollution control topic assumes the existence of a private profit motive to pollute. But the private sector counterplan imagines away the real world context of corporate behavior which the resolution was based upon. And the China counterplan likewise imagines away the geopolitical context which gave rise to the China topic.

It thus seems clear that a somewhat more restrictive idea of negative fiat is needed to avoid flagrant utopianism, unlimited abuse potential, and question begging counterplans which imagine away the necessary context of resolutional discussion. Another reason to limit negative fiat is to preserve the discussion directing function of the topic. We pick a new topic each year in order to discuss different, important, and timely questions. But if the same counterplan (be it anarchy, socialism, 1 world government, or even states) can be nm year after year, then the unique aspects of the topic are neglected in favor of the same tired discussions.

The need to place some limits on negative fiat no longer seems very controversial. But the nature of these limits remains highly contested. I want to briefly describe six theories of how negative fiat should be limited which have particular relevance to this topic. To effectively engage in the debate over negative fiat one needs to be able to defend an appropriate theory (one which justifies one's conclusion regarding the legitimacy or illegitimacy of the state counterplan) and to successfully indict alternative theories.

One theory is that negative fiat is limited by the object of the resolution. So, for example, on the China topic, China is die object of resolutional analysis (as opposed to the subject, or agent, of resolutional analysis). Thus, a counterplan fiat acted through China might be regarded as question-begging and therefore illegitimate, whereas a counterplan acting through Japan or Russia (or any other international institution) would be acceptable. The subject/object distinction has been used in the past to legitimize international counterplans. My suggestion is that it might be used as an argument against the state counterplan. Since the states have primary authority over educational policy, they could be considered to be the object of die resolution fiat is, the source of the problem the resolution is intended to address. If the states are the source of the problem, then it may be illegitimate to fiat a solution through the states.

The subject/object standard does check the worst abuses of international fiat, but as a theory, it possesses a number of problems. First, it is not clear that the distinction fits well into a broader theory of fiat If fiat is seen as the end result of a process of persuasion, then it is unclear why we couldn't try to persuade the object of the resolution to change rather than some less interested third party. And if fiat is simply an act of intellectual endorsement, one could just as easily endorse action by the resolution's object as by anyone else. Second, it isn't clear that (except perhaps grammatically) resolutions have particular objects. One reason to change China policy might be to stop Japanese rearmament; others might be to encourage Indian democracy, check Pakistani proliferation, or foster Russian democracy. Does this make Japan, India, Pakistan, and Russia all objects of the resolution? To say China's behavior provides die context from which die resolution is drawn is overly simplistic. The background context for the resolution at least from a U .S. perspective is the sum of actions by China and the rest of the international community. The subject/object distinction would stop a counterplan to prevent China from exporting weapons of mass destruction, but not a counterplan to prevent all other countries from buying Chinese weapons. The abuse potential still seems great and the standard itself unprincipled. Finally, in terms of domestic topics, the agent and the object are often the same. The federal government has a role, albeit limited, in education policy; thus, it is arguably part of the problem and the subject/object distinction would conceivably stop federal fiat on a federal topic. (Certainly in the case of welfare reform of health care, federal policies are seen as the central source of the problem.) In sum, the subject/object argument has promise as an Affirmative objection to the state counterplan, but it is not without its theoretical difficulties.

A second standard is that fiat should be limited by the institutional nature of the agent So, for example, the private pollution control counterplan might be illegitimate because it violates the profit motive inherent to corporations. Certain international counterplans might be illegitimate because they violate nation-state sovereignty. In terms of the state counterplan, it could be argued that the institutional nature of the states is to act in a decentralized, incremental fashion and that to fiat uniform, simultaneous action by all states violates this institutional essence.

Again, this standard has some plausibility. It does seem to capture something of the intuition about why the state counterplan is illegitimate without imposing a purely political standard for what policies can be fiated. But again, there are also substantial difficulties. First, the idea of an institutional nature is highly abstract, even metaphysical. As an empirical matter, corporations don't always seek to maximize profits, nor do nation-states always act so as to maximize their sovereignty. Second, this standard may fall afoul of the traditional should! would distinction. Maybe corporations shouldn't always maximize profits or nation-states' sovereignty. Maybe the states should sometimes act together in the same way. Third, the states do sometimes enact very similar policies at approximately the same time. A change in the ABA's Uniform Crime Code might, for example, be rapidly adopted by most, if not all, of the states. If fiat assumes normal means, then we would probably not imagine the states to be acting exactly the same way at the same time, but as acting in the same general way at close to the same time, and this could be consistent with their decentralized nature. A third standard for negative fiat is that it should be limited to domestic public actors. In addition to limiting most of the more self-evidently suspect counterplans, this standard is in accord with the notion that policy debate is an adjunct to democratic decision making. If this is the case (and if it is not then it is unclear why we always select issues of American public policy as our topics), then it makes sense to limit flat to agents over whom we as citizens have some democratic influence. Given this standard, the state counterplan is pretty clearly legitimate; the states are as much domestic public actors subject to democratic input as is the federal government

Like all theories of fiat, this one can be criticized. Perhaps we should view ourselves as citizens of the world, not just citizens of specific nations or states. Certainly, the extent of our democratic influence over any government is highly limited. And maybe this standard doesn't go far enough to limit the scope of negative fiat for reasons articulated in defense of other standards.

A fourth theory focuses on policy literature as a check on negative fiat. According to this field context standard, counterplans are only legitimate if they are proposed in the literature. Again. by this standard, the state counterplan is probably acceptable; literature proposing state action to improve achievement in secondary education is obviously abundant

The literature standard for counterplans parallels the field context standard for determining Affirmative topicality, and it is based on a similar insight: for determining questions of germaneness (or relevance to a discussion) the actual policy context as revealed in the surrounding policy literature is the best guide. I find this argument persuasive, but the standard it produces does become blurred at the margins. How specifically does the counterplan have to appear in the literature? Requiring the exact counterplan to have been proposed seems too restrictive, but allowing any counterplan the broadest principle of which can be found in the literature seems too expansive. In practice, this standard tends to accompany other more limited or expansive standards. Certainly, contextual support bolsters the credibility of any counterplan but perhaps it is neither necessary nor sufficient given other concerns.

A fifth standard for fiat focuses on the political feasibility of counterplans. Dallas Perkins' "realm of discourse" standard argues that counterplans should only be permitted if they are as politically practical as the affirmative plan. (Another version of the political practicality standard is David Cheshier's argument that the net impact of both plan and counterplan should be determined by multiplying the gross impact of each times its probability of adoption and then weighing the two.) At fl1"St glance, it seems that the political feasibility standard would be effective as an argument against the state counterplan, and in some cases it probably can be since the state counterplan is extremely unlikely. On the other hand, many of the affirmative plans on this topic are also very improbable, so the argument may have less force than one would initially imagine.

Political practicality as a standard clearly has benefits of stressing policy realism and discouraging utopian counterplans. On the other hand, it has the disadvantage of discouraging thought about basic alternatives. Affirmatives are encouraged to pick very small plans only slightly different from the status quo in order to forestall systemic counterplans. In policy discourse beyond debate, policies aren't discarded from consideration just because there is some more politically popular alternative or at least they shouldn't be. An academic forum such as competitive debate should arguably err on the side of considering less immediately practical political options. Debaters are not practicing politicians seeking reelection (the Clinton disadvantage notwithstanding), so intellectual understanding of a range of alternatives can legitimately receive higher priority. The political practicality standard in its various forms seems to violate the focus on what should be done rather than what will be actually adopted, and, finally, comparative political probabilities of adoption are very difficult to quantify and debate.

A sixth and final standard is that negative fiat should be limited to the agent specified in the resolution. If the judge acts as a decision maker considering a federal policy, then s/he could not simultaneously be a state policymaker evaluating a state alternative. To put it another way, the resolution defines the role of the judge, thereby constraining negative fiat. This standard clearly would disallow the state counterplan, since the agent of this topic is the federal government

The resolutional agent standard has the benefit of offering a relatively clear line. It is also a fairly easy standard to articulate and defend. Its basic problem is that it seems attached to a narrow, literalistic policy making model of debate which is no longer widely shared. Few contemporary debate judges actually think of themselves as simulating the role of an actual policy maker. Rather, the judge is simply him or herself evaluating policy arguments and endorsing what s/he sees as the optimal policy at the end of the round. It is sometimes argued that even within this framework the resolutional agent standard would be justified; in asking if the federal government should do something, we assume the perspective of the federal government even if we don't actually pretend to be the federal government, and from that perspective what other agents should do (as opposed to what they will do) is irrelevant This argument has a certain appeal, but it seems to assume that the main focus of the topic is on the action not the agent. That is, it assumes that the topic is primarily about what the federal government should do, rather than who should do something to strengthen academic achievement. Unfortunately or fortunately, depending on your perspective, there is no reason to think that the resolution is focused more on the what than on the who. Nothing in the structure or logic of the resolution draws that distinction, and it is a premise which seems essential to this standard.

In sum, the state counterplan is probably best attacked using a resolutional agent, an institutional nature, or a subject! object concept of negative fiat It is best defended using the domestic public actor standard in combination with the literature standard. Political feasibility standards of negative fiat are potentially useful to both sides depending on the particular affirmative plan and (to a lesser extent) the exact wording of the counterplan. (Counterplans allowing more state variation are probably more politically likely.) This is not an easy branch of debate theory to master, but it figures to be an extremely useful one on this topic.

In debating the state counterplan, the affirmative should probably raise several theory objections. I believe that the fiat arguments and the indictment of plan inclusiveness are the strongest available, but the affirmative should also indict conditionality if the counterplan is conditional. The topicality objections seem less promising with regard to the state counterplan. For the negative engaged in this theory debate, the best strategy is usually to bury the theory arguments in the negative block. If this happens, the Affirmative should probably pick only its strongest theory indictment to extend into rebuttals. While this focusing is important, it is also essential to thoroughly answer the negative arguments on the position you choose to go for. Less than thorough extension of theory is a recipe for an easy 2NR.

Beyond the pure theory arguments, the Affirmative should at least offer the permutation of doing both plan and counterplan. The negative needs to clearly explain why its disadvantages apply to the permutation but not the counterplan alone and to explain the illegitimacy of any permutations which subtract from the initial affirmative plan.

It is also important, however, that the affirmative be prepared to attack the substance of the counterplan as well as its theory. This can be done in several ways. The first, arguing that the disadvantages apply to the counterplan, has already been discussed. Second, the affirmative needs to compare the solvency of plan (and permutation) to the solvency of the counterplan. Ideally, at least some solvency evidence should indicate why the federal government is superior in this area. Third, the affirmative should run at least one disadvantage to the counterplan. If the counterplan allows state flexibility, then the affirmative may be able to win that it is more likely to be circumvented. Second, the Affirmative may have added solvency because only the federal government can enact the plan in the District of Columbia and the territories. (One negative option here is to grant D.C. and the territories home rule and then to have them do the plan.) The net benefit of acting in D.C. and the territories might seem minimal, but it is at least a small net benefit, and it can perhaps be linked to an international modeling advantage based on the claim that America's national capital is uniquely visible. A third disadvantage (included in the state counterplan section of the DRG) is state spending. Fourth, the affirmative might wish to enter the federalism debate by arguing that the counterplan gives too much power and responsibility to the states and that this damages the federal system by overly downplaying the role of the federal government. Fifth, the Affirmative may wish to initiate the Clinton debate, even if the negative has not They could argue that the plan would make Clinton either more or less popular, with corresponding impacts pertaining to the desirability or undesirability of his agenda. This last option should be used with some discretion because it does, after all, give the negative something for which they usually have to struggle a Clinton link. And once there is a clear Clinton link in the round, the case impacts are likely to be dwarfed by the Clinton impacts. Finally, if the counterplan figures to capture most or all of Affirmative solvency, then the Affirmative may wish to place even more emphasis than usual on turning disadvantages (though once again this does have the effect of shifting the debate more onto negative ground).

My final advice to the Affirmative in terms of debating the state counterplan is the most simple yet potentially the most effective: try to select a plan which avoids the counterplan altogether. This can be attempted in several ways. First, the plan may do something that the states can't do. For example, the states can't abolish federal aspects of the war on drugs, nor can the states do something which the Supreme Court claims is constitutionally impermissible. In sum, cases which have a federal inherency can probably only be adopted at the federal level. Even this strategy, however, may not be totally immune to the state counterplan. Such plans may remove a federal barrier and then set up a federal program. If this is the case, the negative may be able to counterplan with removing the federal barrier and then having the states adopt the program. This, of course, is highly plan inclusive and therefore subject to theoretical indictment, and it will not apply if the affirmative program is exclusively to remove current federal standards or policies; still, it is a negative option which the Affirmative needs to keep in mind when constructing its plan.

A second option is for the affirmative to do its plan only in the District of Columbia and the territories (or more broadly only in the federal judicial system). The initial advantage to this plan is relatively small, but so of course are the disadvantage links. Further, the Affirmative may be able to claim a federal leadership advantage, though the spillover to the states would be subject to the state counterplan.

Finally, the Affirmative might simply encourage the states to adopt a certain policy and provide data relevant to that policy. This approach avoids imposing something on the states and it costs relatively little, though it would probably link to Clinton. Again, the state counterplan is not completely avoided. The negative could argue that the states should act on their own without federal encouragement and that the states could then study program effectiveness through an institutional mechanism of their own device, such as the Council of State Governments. But here the permutation combining federal encouragement and study with state enactment does seem to produce an increment of solvency. There is very good evidence that research and evaluation is the most legitimate role in education for the federal government. It is a role they already play with some apparent success. So, at minimum, the permutation figures to have a net benefit in terms of policy evaluation to weigh against any minimal DA link to a relatively small plan. Furthermore, the permutation might give the Clinton DA a unique twist, since if all the states immediately fell into line behind a Clinton initiative, this action would probably be read as a major political victory for the President.

The state counterplan will remain a tricky argument, but it is one which will be encountered repeatedly on this topic, and the teams which master its subtleties will enjoy a large competitive edge.

Addendum on Education

I noted in the preceding article that the juvenile crime topic was one of the most extensive that I have encountered. The academic achievement topic is probably even broader. And while the federal role in education is somewhat greater than it is in juvenile crime, the state counterplan figures to be an extremely common negative strategy in the year to come.

Since the state counterplan is relatively difficult to debate straight up, affirmatives will clearly try to select cases which avoid the counterplan to the maximum degree possible. One way to do this is to apply the plan only in schools fairly directly within federal jurisdiction. for example, within Washington. D.C. This would produce a small direct advantage, but it might be argued that the states would model a successful D.C. school initiative. The modeling advantage, however, does not escape the state counterplan very effectively; the counterplan can simply have the states duplicate the plan without waiting for the D.C. experiment to model.

Another approach is federal research. There is a good deal of evidence, even from fairly conservative sources, that research is the proper role of the federal government in education and that the federal government is uniquely qualified to undertake such inquiries. Again, it is possible to counterplan with state-based research, but the affirmative can probably win that the research undertaken by the federal government will be at least marginally superior.

Another possible strategy is to repeal or retrench existing federal education policies. This might include consolidating federal aid to education into block grants, abolishing Goals 2000, or even disbanding the Department of Education. These are all things that the federal government alone can do, so the state counterplan would not seem to be directly applicable. This does not, however, completely immunize the affirmative from the state counterplan strategy. The negative could essentially duplicate the effect of the block grants plan by having the states refuse federal money and increase their own revenue sources. Similarly, the states could voluntarily opt out of the Goals 2000 standards process or, more broadly, ignore Department of Education recommendations. None of these are classical "do the affirmative" state counterplans, but they accomplish the same basic objective.

Finally, the affirmative may want to look for areas in which a federal modeling advantage is especially plausible. One example could be the area of bilingualism. A federal policy expanding (or contracting) bilingualism might be a stronger signal to foreign countries than state policies alone, though the uniform fifty state counterplan would also seem to send a pretty strong signal.

As I noted in the main article, the affirmative should always be ready to run a disadvantage against the state counterplan. In this handbook, we have developed the state spending disadvantage in some depth for this purpose. (This disadvantage also links to plans which impose unfunded mandates on the states, but its greatest use is likely to be against state counterplans.) In response to the state spending DA, the negative should think seriously about specifying its funding. No way of funding a policy is free of disadvantages, but this way the negative can at least attempt to control the ground on which the spending debate will occur.

Two of the stronger theory arguments against state counterplans involve indictments of plan inclusiveness and of the negative's theory of fiat. Because the theory debate figures to be so central to the state counterplan, I want to conclude with a few comments on these theory issues.

It is fairly easy to argue that the state counterplan is plan inclusive. It does, after all, duplicate the mandates of the affirmative plan, merely competing with the afflrn1ative at the level of agent There is, however, at least one argument for why the state counterplan is not plan inclusive. When a counterplan duplicates the Affirmative through another federal agent, the same implementation process, enjoying the same enforcement, the same funding, and the same bureaucracy will occur. Enactment at the state level uses a completely different administrative, legislative, and judicial machinery to carry out the counterplan. By involving a totally different set of actors, the state counterplan thus can claim to not be plan inclusive. I am not sure that this argument is ultimately successful. It does prove that the counterplan is less "plan inclusive than a federal agent counterplan would be (and thus probably gives the affirmative more ground for attack), but it still does include all of the affirmative plan's mandates. But there is at least a small set of judges who regard this degree of plan inclusiveness as more acceptable; thus, it is probably an argument worth advancing.

The major recent development in the theory of negative fiat has been advanced by Mike Korcok of Florida State University. Korcok argues that counterplans should be understood in terms of "opportunity costs." This is a term derived from economics which relates to the different ways in which resources can be employed. The opportunity cost of one action is that it may foreclose another, more desirable, approach. An opportunity cost of putting a thousand dollars into the bank is that the money might earn more in a mutual fund. (Of course, it might also lose more.) In terms of public policies, an opportunity cost of adopting one policy is that it precludes the adoption of another, mutually exclusive, policy. Or it might preclude the adoption of the optimal policy, if the counterplan alone is superior to the plan plus the counterplan.

The concept of opportunity costs lends credence to the argument that negative fiat should be limited to the Affirmative agent. Opportunity costs are always evaluated from the standpoint of individual decision makers. Federal enactment might have the opportunity cost of precluding a superior, exclusively state, option. But the preclusion of the state option is not really an opportunity costs unless the states actually will act. What other actors will do rather than what they should do, is the key determinant of my opportunity costs.

The language of opportunity costs is a good way to think about counterplans, but it is not the only way. More importantly, it does not necessarily specify the perspective that the judge as opportunity chooser should adopt. If the judge chooses as the federal government, then s/he does not have the option of enacting state level policies. But the whole debate over negative fiat, for the past twenty years, has precisely been over whether the judge should assume the role of the federal government. Judges need not act as the federal government; they might evaluate the round from the standpoint of an individual citizen or scholar. In approaching a debate in this way, the judge does not imagine him or herself as enacting the best policy but as endorsing the best policy. The opportunity cost metaphor can still be employed within this concept of fiat, but it functions differently. While federal decision makers cannot enact state level policies, individual scholars and citizens can endorse state level action as superior to federal action. And for the scholar or citizen, the opportunity cost of endorsing the federal policy might be that s/he is prevented from endorsing a superior exclusively state policy as the best policy option available.

In sum, the notion of opportunity costs offers a sophisticated language for discussing how counterplans operate, but it doesn't in an of itself resolve the basic question of negative fiat, the perspective from which the judge evaluates the opposing policies with which s/he is presented. Nonetheless, the language of opportunity costs is likely to be increasingly prominent in debates over negative fiat, and it is one with which good theory debaters will need to familiarize themselves.