Recent polls show that a majority of Americans still believe that state and local governments have their best interests at heart. But lawyers and political scientists regularly warn that money exercises too much control at nearly every level of government decision-making. Under increasing pressure from wealthy corporations and individual activists, many states and local governments are refusing federal aid. Providing huge incentive packages for controversial development projects. Evicting family members from their homes. Get ahead of grassroots efforts to build your workforce. Encourage the misuse of firearms. and gerrymandering electoral maps to maximize partisan gains.
Although this is not a comprehensive list, it does indicate that “state capture,” or informal control of public policy decisions by private interests, is widespread. Because state capture involves de facto minority rule, it poses a particular threat to the fundamental premises of national democracy, such as popular sovereignty, majoritarianism, and the rule of law. However, state capture is very difficult to regulate because it does not involve the kind of exchange of quid pro quos traditionally associated with political corruption.
But in a recent law review article, I argue that state constitutions provide powerful tools to challenge usurpations of state and local agencies. State capture is not new. Going back to the 19th century, we find that reformers added a variety of substantive and procedural safeguards to virtually every state constitution, with the idea of establishing the people and the courts as bulwarks against private influence. Although little used today, these provisions encourage litigants to challenge special interest laws and empower state courts to respond with more scrutiny than a toothless rationale review.
From “single subject” and “original purpose” requirements to “gift” prohibitions, these widely shared state constitutional provisions generally work by limiting legislative power. To highlight two particularly important examples, 46 state constitutions include explicit “public purpose” requirements, and 34 state constitutions prohibit or limit the enactment of “special” or “local” laws. Each of these provisions prohibits the state from providing public assistance to private enterprises and from singling out particular individuals or groups for special benefits or burdens unless there is a legitimate public purpose.
Today, litigants at the state and local level still commonly challenge a wide range of public actions based on these provisions. The problem, however, is that so far all but a few state courts have not given this decision much effect. Instead, the majority chose to enforce them using highly respectful principles modeled primarily on the federal equal protection doctrine. In effect, that means that state courts will uphold most facet-neutral laws as long as they can imagine some public purpose that they can be said to serve.
This general tendency for state judiciaries to “align” with federal courts is, of course, well-documented, and not all scholars agree that it is necessarily a bad thing. But in an era marked by extreme democratic uncertainty and corporate monopoly power, it’s worth asking whether state courts should actually be doing more. Indeed, the problem posed by rampant state capture is that not only does it lead to controversial policy decisions, but it also tends to raise barriers to entry, thereby making it more difficult for mass countermobilization of any kind to get off the ground. This raises important questions for (smaller) Democrats who oppose a more powerful state judiciary. If not state courts, then who?
Still, even if state courts were prepared to take a stronger stance on special interest law, it is not always clear what that approach would mean. Fortunately, state constitutional case law suggests some compelling possibilities. One example is a case from 2010. Tarken vs. Gordonthe Arizona Supreme Court ruled that a municipality’s agreement to pay a private company nearly $100 million to develop a commercial hub within a master-planned area violated the Arizona Constitution’s Gift Clause. Noting that this provision was originally added to the Arizona Constitution to prevent public spending for private benefit, the court reasoned that the benefits to the community were not sufficiently direct to uphold the agreement.
from turkishwe find that one way for state courts to take a stronger stance against special interest laws may be to apply a “bite” review, which scholars commonly refer to as rational basis review. But increased oversight is not the only tool available to state courts today, as a 1981 Maryland Court of Appeals decision shows, for example. City Services Company v. Governor. Turning again to state constitutional history, the court determined that to give proper effect to the Maryland Constitution’s prohibition on special legislation, it was necessary to abandon rational basis considerations in favor of a multifactor approach in which no single factor is dispositive. The court held that six factors must be considered to determine whether a challenged statute constitutes special legislation. First, whether the law was “actually intended to confer benefits or burdens on members of a particular class rather than the class as a whole.” Second, “whether a specific individual or entity is identified in the law.” Third, the expected distribution of its benefits and burdens. Fourth, “whether a particular individual or corporation sought and received special benefits from the legislature, or whether other similar individuals or corporations were discriminated against by the law.” Fifth, whether the “public need and public interest underlying the enactment” are satisfied by the general law. And finally, whether the enactment of the law was “arbitrary and without any reasonable basis.”
For some people, this is the case turkish and city services A highly respectful review stands out as the exception that proves the norm. For others, however, they may serve as a starting point for constructing state constitutional arguments to better grasp emerging challenges to state and local democracy.
If so, there’s a lot to do. For academics, such work might include educating the public about the state’s constitutional rights, compiling a repository of legal tools, and drawing attention to existing anti-capture case law. Litigants, on the other hand, can continue to challenge statutes that they suspect of capture and ensure that courts understand that they have the power to take a hard look at these laws. And perhaps most importantly, state judges might consider trying to do what states like Arizona and Maryland have done within their jurisdictions, which is actually giving doctrinal effect to their own constitutional provisions.
All of this definitely takes courage and time. But with democracy at stake, business as usual may not be enough.
Lucien Ferguson is an assistant professor of law at Chicago-Kent Law School and the Illinois Institute of Technology.
Recommended quote: Lucian Ferguson “State capture” and the role of state courtsSᴛᴀᴛᴇ Cᴏᴜʀᴛ Rᴇᴘᴏʀᴛ (June 4, 2026), https://statecourtreport.org/our-work/analysis-opinion/state-capture-and-role-state-courts
