Legal maneuvers can help explain the rapid recent growth of privatized forms of governance, such as voucher schemes and tax expenditures. Although privatization seems to exacerbate principal-agent problems and reduce credit-claiming opportunities, attenuating the relationship between the state and the controversial policy outputs can be politically expedient for policymakers fearing legal losses, because it helps defend such policies in court. This chapter introduces readers to the concept of attenuation: the process by which policymakers in local, state, or federal government hide the state’s role in promoting a particular policy output. Anticipating constitutional challenge, elites use strategic policy design and rhetoric to advance their policy goals.

The sluggish growth of vouchers into the first decade of the twenty-first century prompted voucher supporters to reevaluate their strategy. Ballot initiatives proved fruitless, so supporters switched to state legislatures and sought to distance the state from private schools by funding vouchers through tax credits rather than direct appropriation. The full fruits of attenuated governance matured with Republican victories during Barack Obama’s presidency. This chapter shows that the doubly distanced tax credit form enabled individualist and accommodationist forces to divert public funds to private religious institutions without appearing to do so. Due to the lingering importance of communitarian public schooling and secularist approaches to church–state relations among the nation’s many judges, doubly distanced policies were safest. Statistical analysis demonstrates that they were, and are, least likely to be challenged in court or struck down as unconstitutional. Attenuation is a powerful strategy for rival forces in America’s foundational struggles because it enables policymakers to achieve their goals obliquely. The link between state and legally controversial policy outputs is plausibly deniable in crucial venues of policy contestation, provided that elites follow the attenuation strategy consistently.