For the week of March 21, 2005
Posted on March 18, 2005
Along with the “Ides of March,” Tuesday, March 15, marked a notable anniversary - the 10th birthday of the Federal Unfunded Mandates Reform Act. That law was supposed to stop or at least slow down the one thing that made me maddest when I was governor - some congressman from Washington, D.C. coming up with a big idea, passing a law, holding a press conference, bragging about it and then sending the bill back to Tennessee for me and the legislature to pay. And then the next weekend, that same congressman would usually be back in Tennessee making a speech about local control. The Unfunded Mandates Reform Act was intended to discourage the imposition of new laws and new rules on state and local governments without paying for them. It was the right policy and a great accomplishment, but it hasn’t done nearly as much as we might have hoped. Ten years later: Cities are raising taxes to pay for new EPA storm water run-off rules; School boards are still taking money out of one classroom and putting it in another to meet federal requirements for children with disabilities; The National Council of State Legislatures has identified $29 billion in federal cost shifts to states in transportation, health care, education, environment, homeland security, election laws and in other areas; And just last year in the name of lowering Internet access taxes, Congress tried to take away from state and local officials local control over how to pay for governmental services. In Washington, D.C. these days - Democrats, still stuck in the New Deal, are reflexively searching for national solutions to local problems; Republicans, having found ourselves in charge, have decided it is more blessed to impose our views rather than to liberate Americans from Washington; And, across America, federal judges have discovered the joys of acting like governors and mayors without having to run for office. Meanwhile in states and cities, federal funds make up as much as half of state and local budgets, bringing with them more and more rules that direct and limit what mayors and governors are able to do with revenues raised from state and local taxes. As a result, the job of mayor and governor is becoming more and more like the job of university president, which I used to be: it looks like you’re in charge, but you’re really not. So to celebrate this 10th birthday of the Unfunded Mandates Reform Act, I propose three steps to give mayors and governors, legislators and local councils more authority to do what they were elected to do. First, amend the act to increase to 60 the number of Senate votes it takes to enact legislation that imposes unfunded federal mandates. Second, make it easier for governors and mayors to change or vacate outdated federal court consent decrees and harder for courts and plaintiffs’ lawyers to run the government. I have introduced legislation with Senators Pryor of Arkansas and Nelson of Nebraska that would put term limits on consent decrees, shift to plaintiffs the burden of proving that the decrees need to be continued and require that courts draw decrees narrowly with the objective of moving responsibility back into the hands of elected officials as soon as possible. And finally, we should not allow any new federal statute to preempt a local law unless the new federal law specifically states that there is a direct conflict between state and local law. In October of 1994, Representative Newt Gingrich stood with 300 Republican candidates for Congress on the Capitol steps offering a “Contract with America” promising no more unfunded federal mandates. “If we break our promise,” said my fellow Republicans, “throw us out.” Mindful of that promise, new United States Senate Majority Leader Bob Dole in 1995 designated the Federal Unfunded Mandate Reform Act the first order of business of the new Republican Senate. But the federalism that the Republican Congress was elected to protect in 1994 has gotten lost in the weeds. It is time to find it and to put it back up front where it belongs. Excessive centralization of government runs against the grain of what it means to be an American. Americans do expect Washington, D.C. to take care of war, welfare, social security, health care and debt. Americans do not want Washington, D.C. running schools, colleges, law enforcement, city parks and most roads. Congress needs to take the Unfunded Mandate Reform Act and increase to 60 the number of votes it takes to enact an unfunded mandate, to put term limits on federal court consent decrees, and to require Congress to specify, announce and admit whenever it decides to preempt a state or local law. Then maybe 10 years from now, for its 20th anniversary, we can celebrate an American federal system that has the kind of respect for mayors, governors, legislators and city council members that the founders of this great republic envisioned.