NATIONAL CONFERENCE OF STATE LEGISLATURES WASHINGTON OFFICE: 444 NORTH CAPITOL STREET, NW SUITE 515 WASHINGTON, DC 20001 202/624-5400; 202/737-1069 FAX

STATEMENT OF

REPRESENTATIVE JOHN DORSO

MAJORITY LEADER

NORTH DAKOTA HOUSE OF REPRESENTATIVES

ON BEHALF OF

THE NATIONAL CONFERENCE OF STATE LEGISLATURES

BEFORE THE

SENATE GOVERNMENTAL AFFAIRS COMMITTEE

REGARDING S. 1214, " THE FEDERALISM ACCOUNTABILITY ACT OF 1999"

July 14, 1999

Mr. Chairman and members of the committee:

2

Good afternoon. I am John Dorso, the Majority Leader of the North Dakota House of Representatives. I am also the chair of the Law and Justice Committee of the National Conference of State Legislatures.' I appear today on behalf of NCSL to support S. 1214, the Federalism Accountability Act of 1999. NCSL regards the enactment of S. 1214 as one of its highest legislative priorities. It is essential legislation because it addresses the long-neglected problem of federal preemption of state law.

The Problem

The problem is that the frequency and intrusiveness of federal preemption has increased dramatically. As we all know, if a properly adopted federal law conflicts with a state law, then under the Supremacy Clause, federal law trumps state law. Through most of the history of our republic, the federal government used its preemption power sparingly. Congress and federal agencies showed respect for the American tradition that government should be kept close to the people and that most public policy decisions should be made locally. This is no longer the case.

The Problem Generally: An Advisory Commission on Intergovernmental Relations study of a few years ago documented that most of the federal preemption of state law through the history of the republic has taken place since 1970. In the 1990s, the pace of preemption has quickened, and

The National Conference of State Legislatures represents the legislatures of all fifty states and of the American commonwealths and territories. NCSL's members are united in support of restoring balance in our constitutional system of federalism and are opposed to unnecessary federal mandates and unjustified federal preemption of state law.

3

the impact of preemption is not merely trivial or incidental. As a result of preemption, states have been barred in the 1990s from legislating in policy areas of great importance.

I call it the great power shift. The authority of America's state legislatures is shrinking. This is bad not only for state legislatures but also for the American people, who are increasingly deprived of effective local self-government.

Federalism respects the geographic, economic, social and political diversity of America. Local diversity is ignored when state laws are preempted and replaced with "one-size-fits-all" national policies. The people of Fargo, North Dakota make different policy choices than the people of San Francisco, California. Federalism respects these differences. Federal preemption ignores them, and often ignores them at our peril.

The diversity of states also allows states to act as Justice Bandeis suggested as "laboratories of democracy." States compete with each other, copy each other, and learn from each others' mistakes. It makes for a more vibrant and creative and ultimately more successful policymaking process. The problem with preemption is that it forecloses such experimentation and competition.

Federal preemption also can make government less efficient and less responsive to members of the public as customers. Inevitably, the government in Washington from the perspective of Fargo seems far-away, slow to respond, and often uncomprehending of local conditions.

State government in North Dakota and most other states, by contrast, is very close and customerfriendly. It's like a small retail business. We know the customers personally. We know what they need and what they like. We hear their complaints immediately. We also know our products and services, and can quickly make adjustments to satisfy the customer.

The problem with preemption is that it increasingly makes it difficult or impossible to treat the customer right: to quickly meet the special needs of our local people with common-sense policies based on personal experience. It's just that simple. That's why Congress needs to pass and the president needs to sign S. 1214, so that at the very least the federal Congress, agencies, and courts take a serious look at the preemptive impact of their actions and consider ways of eliminating or mitigating their damaging effects on local self-government.

The Problem of Preemption by Congress: Enactment of S. 1214 is essential, I must say in all due respect, Mr. Chairman and members of the committee, because Congress in the 1990s has been on something of a preemption binge. This is despite the relatively good record by Congress on other federalism issues. Congress is to be commended not only for passing the Unfunded Mandates Reform Act but also for following through by limiting the number of new unfunded mandates and by even rolling back some old ones. We see increasing sympathy in Congress for so-called devolution in grant programs. We see more block grants and somewhat greater flexibility for states in administering programs. This makes the increasing tendency to preempt all the more perplexing. I think this Congress has considerable good will toward the states and wants to make our federalism work better, but more attention must be given to the problem of preemption. The recent record is not good.