This month, Virginia became the 18th state to join the National Popular Vote Interstate Compact (NPVIC). This provoked an agitated response because, if the agreement ever goes live, it will deliver all the state’s Electoral College votes to the presidential candidate who wins the most votes nationwide, rather than the person Virginia voters selected.
With a war to cover, the news cycle moved on. While the country breezes past the question of whether states can compact away the Electoral College, the same loophole is being used to build compacts arguably more invasive.
A network of professional licensing agreements that would govern not just how Americans vote, but how they work, what they’re taught, and what ideological commitments they must demonstrate to keep their careers. In states where professional compacts have been enacted, there’s no need to ask for further consent.
The Constitution’s framers must have eyed compacts with suspicion, because they limited state authority to enter such agreements without congressional approval unless they were being actively invaded. Looking at the NPVIC, their concerns were justified. The Supreme Court relaxed those restrictions to facilitate states solving shared problems, such as coordinating water supplies or managing forest fires. But the risks remain.
The NPVIC isn’t an agreement to solve a shared problem. It is a mechanism for accomplishing, via compact, what Article V reserves for the amendment process. And professional licensing compacts are exploiting that same loophole to achieve a quiet revolution in governance.
Private Rules with the Force of Law
Professional licensure compacts achieve the worst of their outcomes by distributing rulemaking authority to private industry bodies through required exams or accreditation. This is how privately crafted codes of ethics or educational standards now bind practitioners on a national level with the force of law. Should one of these private bodies require professionals to understand the pervasive impact of white supremacy, or affirm gender identity, that sticks.
There is no pathway to adjust these compacts through elections or legal accountability. This is rule without consent, delivered through one’s licensed career.
The details of how these compacts function are a significant part of the problem. The American social contract is based on consent, but these compacts destroy it on three levels.
First, they’re run by unelected industry insiders. Second, they hand rulemaking to professional associations and private bodies. Third, they give those private bodies’ codes and standards the weight of law. The result is a parallel government structure that sidesteps the Constitution to govern practitioner behavior.
Non-Governmental Control of Counseling
Take the newly activated counseling compact, currently enacted in 38 states, which creates a commission populated by delegates chosen from and by the member states’ licensing boards. The model legislation creating the compact requires practitioners to pass “a nationally recognized exam approved by the Commission.”
The only available national exams are administered by the National Board for Certified Counselors (NBCC), a private credentialing 501(c)(6). The NBCC decides the exam’s content and enforces its own code of ethics and conduct standards. States voted for the compact, but they didn’t vote on the NBCC’s code.
The up-and-coming Social Work Licensure Compact, enacted in 30 states, follows the same path, as do an increasing list of other professionally licensed groups. The National Center for Interstate Compacts (NCIC), a subdivision of the Council of State Governments (CSG), facilitated many of these new state agreements.
Both the Social Work Compact and the Dentist and Dental Hygienist Compact describe themselves as a “supra-state sub-federal government entity that serves as an instrumentality of the collective member states.” This means permanent governmental bodies have been created that exist above the state level and below the federal level.
These bodies have rulemaking authority, staff, and often broad immunity from lawsuits. Compact-created supra-state entities are also exempt from Freedom of Information requests, yet have the ability to accept donations, set administrative fees, or take on debt. They can even invoke emergency powers — all features of government.
What’s missing are mechanisms of consent and accountability. These are national industry-controlled, profession-specific cartels.
DOD-Led Initiative for Controlling…Teachers
Since 2016, there has been a significant uptick in licensure compact legislation, largely due to the efforts of the NCIC. Established in 2004, it works to design, implement, and sustain interstate compacts, describing compacts as central to state policymaking. Through the Department of Defense (DOD), and authorized by the 2020 National Defense Authorization Act, the NCIC has been federally funded to develop up to 10 new licensure compacts, with a version for teachers flagged as a priority by the DOD.
If the NPVIC is ever activated, voters in signatory states may cast a ballot for one candidate only to see their electors vote for a different candidate. Under the counseling compact, a counselor may find that he must legally demonstrate his commitment to promote social justice.
Both are suffering under rule without consent. The former loses the value of their votes, and with the latter, counselors are beholden to an ideology regardless of their personal beliefs. The mechanism is the same for both.
Compacts don’t sunset. Once created, these structures will be very difficult to undo. What state legislator wants to vote against perceived job-expanding opportunities? Active commissions will develop institutional self-interest in survival. Member states with second thoughts then discover the procedural teeth if they try to withdraw.
It’s difficult to amend the Constitution, but the process required forces widespread agreement before structural change. Compacts, needing only a handful of states’ approval for activation, do the reverse – structural change with durable obligation before national agreement is reached. New layers of unaccountable governance get installed with no clear way to reverse course.
The NPVIC draws attention because it would change the way we choose a president. Licensing compacts appear a boon to the public. Only affected professionals see the regulatory minutiae consuming their careers. Rule without consent is not the social contract the framers intended, but today’s legislators are enthusiastically signing up, one compact at a time.
