make it very difficult for Justice to bring some of the screwball cases that they bring.

Chairman THOMPSON. I have a vote on here, unfortunately. Let me ask you very briefly, you have heard the discussion concerning the Colorado situation, the discussion concerning juvenile crime legislation that is pending. Any thoughts about that?

Mr. LEFCOURT. Well, I for one think that the Colorado authorities should be credited for a lot of what they have been doing, and there are, of course, already in Colorado laws that could include the prosecution of families in taking responsibility for their children. I am not saying I advocate such laws, but they already have such things.

It seems to me that what is better than the Senate version of S. 254 is what the unanimous Judiciary Committee of the House in H.R. 1501 has talked about. If we are going to have juvenile justice legislation, theirs is more here is the money, here are the ways you could use it, and we are not going to tell you how to use it, and we are not going to create a better-we are not going to create Federal juvenile prosecutions. You do it, you experiment, as is the State's prerogative, and go from there. And that is supported by both Republicans and Democrats unanimously on the House Judiciary Committee, and it seems to me a better way to go than to create a Federal bureaucracy.

I think what was being discussed before is when you have purse strings, you can have money if you eliminate parole. And now all of a sudden you have prison costs that start to triple. Governor Cuomo during his term in New York is responsible for doubling the prison population. Essentially, prisons are being opened, and libraries and hospitals and other institutions are losing.

Chairman THOMPSON. Professor Baker.

Mr. BAKER. When I was in juvenile justice, I learned that this is really a contest between conservatives and liberals over family policy in the country and each side uses the Federal funding to try to dictate policy to the States. Often, their notion of federalism is that we will tell you how to do it and here is the money to do it. But most of the money that came through juvenile justice served as subsidies for academics. It didn't really go to solve the problems. The funds went to studying the problem because the lobby behind the program consisted largely of academics who needed supplements to their income.

Chairman THOMPSON. What do you think about the notion that we don't really know what the solutions are and let's just kind of subsidize additional research and evaluation of programs that are out there, that sort of thing? Is that valid?

Mr. BAKER. But research is not objective when you are talking about family issues, which is what juvenile justice is about. We know that there is a strong ideological divide in this country, and so it is going to be a question of who gets control over Federal funds, what academics get the money, and what studies they do. I saw this on pornography issues, on a whole series of issues.

Chairman THOMPSON. In other words, if you give it to academics who think movies are the problem, that is the solution. If you give it to academics who think guns are the problem, that is going to be the solution.

Mr. BAKER. Exactly. You already know when you pick the academic what the bottom line of the report is going to be.

Chairman THOMPSON. So it is like everything else.

Mr. BAKER. Their views are well-known ahead of time. They have written on the topic, so you know what their position is going to be.

Chairman THOMPSON. Well, gentlemen, thank you very much. As I said, we could talk on this for a long time. You have really given us some interesting ideas. Maybe some long-term effort can be put into this and we can work together to maybe get some attention on this.

I think Senator Voinovich said he is very much attuned to the civil side of things, but not the criminal. This is something that could go across ideological lines. It looks like the problem really got started in the 1970's, and we are all guilty to one extent or another for letting this happen. But for any of us who are concerned about our court system, concerned about concentration of power, this is something we really need to give some attention to, not to mention the resource question.

We are lacking apparently in some of the most fundamental things. If we can't protect our national security, if we can't do something with our vast resources to protect our borders a little better, in terms of espionage, drugs, what-not, then what can we do?

So we are fiddling around and throwing money in all these different directions for things that are not remotely connected with fundamental responsibilities of government, while at the same time we are not coming close, apparently, to doing our job with regard to those basic responsibilities. So maybe we can work together and do some good on this.

Thank you very much for being here. The record will remain open for 5 days after the conclusion of the hearing. We are adjourned.

[Whereupon, at 11:47 a.m., the Committee was adjourned.]

The Committee met, pursuant to notice, at 3 p.m., in room SD342, Dirksen Senate Office Building, Hon. Fred Thompson, Chairman of the Committee, presiding.

Present: Senators Thompson, Roth, Voinovich, and Levin.

OPENING STATEMENT OF CHAIRMAN THOMPSON Chairman THOMPSON. I think we need to go ahead and get started because we don't know exactly what the vote situation is going to be, other than we do know we will have some votes as we go along. But we will try to run continuously as best we can.

We are considering a bill today that really goes to the basics of our Federal system. It has to do with the kind of government we have in terms of separation of powers, checks and balances. We have, as in many of our areas, an inherent and planned conflict in that we sometimes have to balance the considerations of the Supremacy Clause on the one hand with principles of federalism and separation of powers and the Tenth Amendment on the other hand. And the courts oftentimes have to deal with that balance, keeping in mind that if Congress so chooses, it can oftentimes preempt a field under the Supremacy Clause. And that is what we are dealing with here today, basically, is the question of preemption.

If under the Supremacy Clause Congress decides affirmatively and clearly to preempt, there doesn't seem to be much of a problem with that. Where we get into confusion and problems oftentimes is when we get into the field of implied preemption where Congress passes a law, doesn't address the issue of preemption at all, probably is the furthest thing removed from most Members' minds as they vote for a particular piece of legislation. And, lo and behold, after a period of time, lawsuits start coming down the pike and courts are left to try to determine what Congress' congressional intent was. And they come up with all kinds of elaborate theories to determine what Congress' congressional intent was when there probably wasn't any congressional intent on a lot of the things that they have to come up with.

So, basically, the question becomes: If it is a question of Congress's congressional intent as to whether or not Congress meant to preempt a certain area, who is best to express that intent-Congress or the courts?

A lot of us feel like that if it is a matter of congressional intent, we would be better served if Congress was required to face up to that question and deal with it. And that is basically what the Federalism Accountability Act is. I think the act is well named because it has to do with accountability. It doesn't have to do with making those policy decisions as to whether or not a particular area ought to be preempted. I happen to think that we have gone much too far in terms of preemption. Federalism has been one of the things that I have been concerned about for a long time, or the lack of federalism. Everybody gives lip service to it. Everybody says they want it. We have Executive Orders, we pass bills acknowledging its importance, and nobody pays any attention to it.

But that is kind of beside the point to a certain extent with regard to this act. All this act says is, look, Congress, if you are going to do it, face up to it, deal with it, and state that that is what you are doing. In other words, don't pass the political buck to some unelected branch of government who, years after the fact, tries to read your mind on something where there is not really any legislative history on it. And the bill would also require agencies to consider for the first time, as they are supposed to do now and they don't do and I am going to ask Mr. Spotila here in a few minutes why that is the case, but making agencies consider these issues as they are making their rules.

So that is what this is about, consideration of this piece of legislation which is S. 1214, which addresses the problem essentially of the implied preemption situation that we have that seems to be growing all the time.

I don't have any up-to-date figures, but I know in the 1960's preemption cases were taking up about 2 percent of the Supreme Court's docket. In the 1980's, they were taking up about 9 percent of the Supreme Court's docket. And we are going to get more recent figures, and I dare say it is higher than 9 percent now, all having to do with or largely having to do with reading Congress' mind.

So it just gets basically to whether you believe in democracy or not, doesn't it, Mr. Spotila? So, with that, any statements you have to make? Before you proceed, we will include Senator Levin's and Senator's Voinovich's statements in the record at this point.

[The prepared statements of Senators Levin and Voinovich follows:]

PREPARED OPENING STATEMENT OF SENATOR LEVIN

Mr. Chairman, I am pleased to be a cosponsor of the Federalism Accountability Act, and I am also pleased that the Committee is beginning its consideration of this legislation today. The bill includes a provision which I introduced in 1991 to create a presumption of no preemption in Federal legislation unless Congress explicitly states its intent to preempt or unless there exists a direct conflict between Federal law and a State or local law which cannot be reconciled. Enactment of this provision would close the back door of implied Federal preemption.

Over the past years, State and local officials have become increasingly concerned with the number of instances in which State and local laws have been preempted by Federal law-not because Congress has done so explicitly, but because the courts have found such preemption implied in the law. Since 1789, Congress has enacted approximately 350 laws specifically preempting State and local authority. Half of these laws have been enacted in the last 20 years. These figures, however, do not touch upon the extensive Federal preemption of State and local authority which has occurred as a result of judicial interpretation of congressional intent, when Con

Article VI of the Constitution, the supremacy clause, states that Federal laws made pursuant to the Constitution "shall be the supreme law of the land." In its most basic sense, this clause means that a State law is negated or preempted when it is in conflict with a constitutionally enacted Federal law. A significant body of case law has been developed to arrive at standards by which to judge whether or not Congress intended to preempt State or local authority-standards which are subjective and have not resulted in a consistent and predictable doctrine in resolving preemption questions. The presumption created by this bill will mean that silence by Congress on the subject of preemption will mean no preemption. Silence on preemption will not be an invitation for the courts to try to glean what Congress intended or what policy should be adopted. If the law doesn't address preemption and there is no direct conflict with State or local law, then this bill says there should be no judicial determination in favor of preemption.

The bill also contains a requirement that agencies notify and consult with State and local governments and their representative organizations during the development of rules, and publish proposed and final federalism assessments along with proposed and final rules. There is already an Executive Order, 12612 that requires similar attention by the agencies to federalism concerns. But GAO has informed us that there is little, in fact virtually no, compliance with that Executive Order. Out of 11,414 rules issued between April 1996 and December 1998, only five rule publications contained a federalism assessment. I also asked GAO to find out how many major rules involved consultation with State and local governments, setting aside the issue of whether or not a federalism assessment was done. GAO reported to me, based on a quick review of the 117 major rules issued between April 1996 and December 1998, that 96 of those rules did not mention intergovernmental consultation despite the fact that 32 of those 96 rules had a federalism impact. In fact 15 of the 32 rules said they were going to preempt State law.

Common sense dictates that State and local governments should be notified and consulted before the Federal Government regulates in a way that weakens or jeopardizes the work of State and local governments. Both past and present administrations have recognized the value of having Federal agencies consult with State and local governments. This bill would make sure that happens; it would ensure that Executive Branch agencies engage in such consultation with State and local governments and publish with the rules assessments of the impacts of such rules on State and local governments.

I am pleased that this legislation has received bipartisan support, and I look forward to working with my colleagues on the Committee to resolve any issues they may have with this legislation. We have a good group of witnesses today, and I look forward to hearing their testimony as well.

PREPARED OPENING STATEMENT OF SENATOR VOINOVICH

Mr. Chairman, I want to commend you for holding this hearing on S. 1214, the Federalism Accountability Act. I am very proud to have cosponsored this bill with you and Senator Levin, I think it is thoughtful legislation that deals responsibly with Federal preemption. It's an issue that I have been concerned about throughout my years of government service.

In fact, the Federalism Accountability Act exemplifies one of the reasons why I wanted to come to the U.S. Senate after having served over 30 years in State and local government as a county commissioner, State representative, a mayor, and a governor. I know first hand how important it is to protect the authority of States and localities to ably serve their citizens without undue interference from Washington. I wanted to work in support of this fundamental principal of Federalism “from the inside." After pursuing it on the outside as President of the National League of Cities and as Chairman of the National Governors' Association, I am happy to say that months of work with my colleagues has resulted in this bipartisan, common-sense bill that we are discussing today.

Mr. Chairman, one principle that we must get across is the States are not agents of the Federal Government. the Constitution and the Tenth Amendment recognized the unique and sovereign role that the States play in our democracy and it is a role that we must maintain. There has been a great deal of progress in recent years in restoring this balance between the States and the Federal Government, and I think we can all be proud of that. The Unfunded Mandates Reform Act of 1995, the Safe Drinking Water Act Amendments of 1996, Medicaid and welfare reform, and the recently enacted "Ed Flex" and tobacco anti-recoupment measures are all examples where the effectiveness of States and localities have won out over Washington bu

reaucracy.