behave strategically, making it harder to gain agreement on the public goods that will improve the community. Federalism tempers strategic behavior and substitutes in its place the genuine concern of one citizen for another. As Adam Smith noted, the spirit of genuine benevolence is more likely to operate at a shorter distance." The resulting fellow feeling facilitates sound and harmonious public policy. Despite these enormous advantages, federalism has one important possible disadvantage. By multiplying the number of governments it permits officials to avoid accountability by making it harder for the public to determine which set of officials is responsible for a given governmental action. The strict enumeration of powers in the original Constitution, however, made it easier for citizens to hold state and federal official accountable for what they did in their respective spheres. The Unfortunately, today the Framers' blueprint for good government has faded. By the early part of this century pressure had developed for a more centralized structure of governance. Sixteenth Amendment permitting a federal income tax removed a major constraint on the federal government by giving it access to almost unlimited revenues. The Seventeenth Amendment terminating the election of Senators by state legislators stripped the states of their principal institutional protectors in Congress. further. In the 1930s the Supreme Court weakened federalism still manufacturing, thereby gravely weakening regulatory competition among the states and centralizing power in Washington. The Court also abandoned its effort to limit Congress's spending power, essentially giving the federal government plenary spending authority. The dissolution of the limitations on government embodied in federalism has had dramatic and unfortunate consequences. First, the federal government now spends domestically seventeen times the percent of Gross National Product as it did at the beginning of this century when federalism was strong. without the limitations of federalism, the federal government has also imposed far more regulations on our enterprises, both large and small, than it did at height of federalism. Moreover, the marketplace for government among the states works less well because state regulatory and spending programs have relatively small effects compared to those of the federal government. Thus, because of federalism's decline, our governments, both state and federal, spend less efficiently and tax and regulate more than they would in a system restrained by constitutional federalism. As a result, our more centralized state hinders · economic growth. Less competition among the states has also led to less innovation in solving our social problems. But even worse are the losses to our civic life. Because a more centralized system has made government less constrained and less close to the people, citizens have become more suspicious--in some cases cynical--of government. Without the constraints of Such federalism it is easier for interest groups to obtain spending or regulatory transfers for themselves at the expense of others. a regime encourages citizens to see one another either as potential targets (of expropriation and taxation) or as threats (to their opportunities and wealth). Thus, the decline of constitutional federalism has divided citizens, embittering our political life. If the evisceration of the constraints on the national government has robbed our constitutional system of federalism's many virtues, it has also exacerbated its potential flaw--the reduction of accountability for government officials. Since the responsibilities of the state and federal government are no longer distinct, it has become easier for federal official to avoid blame for the costs of government actions. For instance, Congress can impose mandates on the states, forcing states and their localities to spend their own money on federal objectives. Thus federalism today is but a shadow of the Framers' structure. I now turn to the steps that are needed to reinvigorate it. The Court and Congress have been making some progress in creating as much governmental accountability as possible within the remaining structures of federalism. Recently, in New York v. United States, the Court held that the federal government cannot order the state legislature to pass state laws. The decision was based in part on the Court's view that federal commandeering of state legislatures would detract from accountability, because citizens would have more difficulty in knowing whether to attribute government. In Printz v. United States, the Court expanded this holding to forbid the federal government from commandeering state officials, thus requiring the federal government to accept the responsibility for enforcing its own policies.' Congress has also responded to the need for greater accountability with the Unfunded Mandate Reform Act of 1995. The Act is very complex but its core feature is to require separate votes before Congress imposes new federal mandates that require the states to spend their own money. This legislation could be improved by requiring Congress to undertake the same procedure before renewing old mandates. Nevertheless it represents a useful first step for promoting accountability in this area. The Government Partnership Act of 1999, a draft bill of Chairman Thompson, is an even more important step in restoring accountability. The bill would require Congress to provide reasons in a legislative report for its decision to preempt state law. Failure to provide such reasons would make the preempting legislation subject to a point of order. Second, the bill would declare that no legislation or regulation would preempt state law, unless it expressly so stated or if it conflicted with state law. Finally, the bill would require agencies to undertake a federalism assessment before they preempt state law. This is excellent legislation because it would force the federal government, both legislative and executive, to deliberate before preempting and preempt directly when it preempts at all. Such deliberation and clarity are hallmarks of government accountability. 59-454 99-7 This draft bill also draws support for its rule of construction and procedural requirements for deliberation from Garcia v. San Antonio Metropolitan Transit Authority.' In that case the Supreme Court rejected the argument that the Tenth Amendment prohibited føderal minimum wage requirements from being applied to state transit operations. The Court's core holding is that Congress' power to impose its will on the states should be limited not by ad hoc judicial determinations balancing state and federal interests under the Tenth Amendment but by the states' participation in the national political process through the voice of its elected representatives. But states can participate in the national political process only if they know how the federal government is affecting their interests. Thus, by requiring Congress to announce publicly its intention to preempt, the Government Partnership Act helps secure more protection for the states. Preemption that is not express also conflicts with the spirit of Garcia, because such preemption allows state law to be displaced indirectly by the inferences of an unelected federal judiciary. Federal accountability can be enforced only if the legislators elected from the several states are themselves required to displace state law. The abolition of non-express forms of preemption would thus mitigate the lack of legislative accountability that remains federalism's chief potential flaw. It is a much harder task, however, to restore federalism's virtues--its hydraulic pressure for liberty and social solidarity. |