The Honorable Tommy G. Thompson Opening Statement United States Senate Committee on Governmental Affairs The states have shown, with the limited experimentation the federal government has allowed, that we can manage complex problems and put our ideas to work, reconnecting the American people with their government. Devolution will have a profoundly positive effect on the delivery of government programs and services as states compete with one another to devise the best systems. Its impact on the political process, however, will be equally profound: nothing less than a restoration of the American people's confidence in their government. Again, I thank you for this opportunity to speak with you today, and I look forward to our ensuing conversation. Page 6 of 6 FEDERALISM STATUTORY PRINCIPLES AND PROPOSALS This paper highlights 11 statutory approaches designed to bring better balance and greater accountability to the state-federal partnership. Many of these proposals were developed and endorsed as part of the States' Federalism Summit, convened in October 1995. Each proposal addresses the ways in which Congress goes about its policy setting business visà-vis the states. The proposals could be combined into an omnibus State-Federal Partnership Act or could be introduced singly or in some combination. PROPOSALS I. II. III. Declaration and Justification of Constitutional Authority. Require Congress, as part of considering any new or reauthorizing legislation, to declare and justify its constitutional authority to enact each given bill. This provision in all bills requires Congress to treat the Tenth Amendment as an integral, living part of the Constitution. (This procedure was made a part of recent changes to the committee rules of the House). The United States v. Lopez decision ensures that congressional members understand and acknowledge specific limits to federal powers rather than assuming general power to enact any bills deemed appropriate at the moment. In addition, the Supreme Court upheld this principle in the Printz v. United States and New York v. United States decisions, which reinforce the idea of dual sovereignty. Limit and Clarify Federal Preemption of State Law. Preemption is the partial or total displacement of state laws and/or local ordinances by federal laws and/or agency rules under the supremacy clause of the US Constitution. Since more than half of all explicit federal preemptions of state laws enacted by Congress in our 208-year history have been enacted only during the past 30 years, it seems necessary now to: require bill sponsors to examine the impacts of proposed preemptions on states; increase consultation with states; and, to require clear disclosure of intent to preempt with appropriate notice to states. This proposal ensures increased awareness of proposed preemptive activity, and requires regular review and justification of existing preemptions. For decades, the Supreme Court has been unwilling to find preemption of state authority unless there is a clear and manifest congressional intent to preempt. Prohibiting Federal Conscription and Coercion of State Governments. IV. V. VI. was upheld by the Supreme Court in the New York v. United States and Printz v. United States decisions. Points of Order on the House and Senate Floor. An Omnibus Federalism bill could provide for a point of order to lie against any bill that does not comply with the citation of constitutional authority provision, ensuring all members consider the federalism implications of legislation. The Unfunded Mandates Reform Act of 1995 (UMRA) already provides this specific procedure for unfunded mandates. This could be expanded to include challenges to constitutional authority. Consolidating Categorical Programs into Block Grants. Working with state legislators and governors, Congress and the President should accelerate the recent trend toward consolidation of categorical programs into block grants. Block grants have proven to be effective mechanisms for tailoring programs to the unique needs of the 50 states. Legislation creating block grants should be encumbered with regulations, restrictions or earmarks. Block grants should not preempt state laws and procedures; they should avoid "set-asides." Block grant legislation should reduce front-end paperwork and post-audit requirements and establish minimal reporting requirements emphasizing outcomes, rather than process. They should embrace the discretion of state policymakers. Protecting State Laws and Procedures in Expending Federal Funds. VII. Prohibiting Conditions of Federal Aid not Germane to Aid Purposes. Since the 1960's, Congress has increasingly attached conditions to federal-aid VIII. Clarify the Intent of the Unfunded Mandates Reform Act. The 1995 UMRA law needs to be clarified in a few areas; how to interpret its definition of "mandate" with respect to caps on, or reductions in, federal funding for large entitlement grant programs where states have some compensatory IX. X. XI. flexibility; whether the effects a bill may have on the costs of existing mandates should be counted as the costs of a mandate under UMRA; and how to estimate the direct costs of extending the life of an expiring mandate. Requiring Congressional and Executive Federalism Impact Statements. Federal Regulatory Streamlining. Federal regulations cost hundreds of billions of dollars each year. However, the rulemaking process is often a mystery to the general public, and many stakeholders agree that cost-benefit analysis and comparative risk assessment, plus greater public access to the information which is part of agency decisionmaking, would improve regulatory efficiency. According to the U.S. General Accounting Office (GAO), of 129 regulatory actions it has reviewed at four major regulatory agencies (EPA, HUD, DOT, OSHA), fewer than 25 percent had a clear and simple document available illustrating changes made during the rulemaking process-which is overseen by the Office of Information and Regulatory Affairs. A regulatory reform bill is needed to improve quality and accountability in rulemaking through cost-benefit analysis and risk assessment, peer review of methodologies, as well as a process for reviewing existing rules. (Note: Senators Fred Thompson (TN) and Carl Levin (MI) have introduced a bipartisan compromise Regulatory Improvement Act, S. 981, which would implement most of the improvements states seek.) Federal Financial Reporting Simplification. There are over 600 different federal financial assistance programs to implement TESTIMONY Statement of Governor Michael O. Leavitt, Utah Vice Chairman, National Governors' Association before the Committee on Governmental Affairs United States Senate on Federalism on behalf of The National Governors' Association May 5, 1999 NATIONAL GOVERNORS' ASSOCIATION |