you have preempted us at the State level and decide to transfer power up to the Federal level to deal with a broad range of issues. Two other things and I will close, because I think that I want you to understand clearly that I grew up in the American style and NCSL is not challenging the ability of the Federal Government to preempt or the wisdom of the Supremacy Clause. I happen to agree with it totally. It would not matter if I did not. But the point is that we are not challenging or questioning the wisdom of preemption.

What we are simply saying is that where there is a direct conflict, as articulated by the Congress, or even a direct conflict as you ran into in Gibbons v. Ogden, we cannot challenge whether you have taken away the States' ability to operate in that area. But where there is not a direct conflict between State and Federal law, when there is not a clear articulation of the intent of Congress to take away our ability to act in an area, we propose that there ought not be any presumption of preemption or there not be any preemption allowed.

What we need to do, to reiterate the three points that I raised earlier, is have legislation that says, before Congress will preempt State law, it will be well-informed about the implications, it knows fully what the implications are to State and local government, so that there is a discussion about it, some consideration of the Tenth Amendment, some consideration of the roles that we play in this Federal system.

Second, that the internal process that you develop through this legislation would make it clear to the agencies and the courts when you intend to preempt, again, wiping out the field of implied preemption, which has become so pervasive in the whole area of preemption.

And third, by giving guidance to the courts and to the agencies by simply saying with a strict rule of construction, when we have not said as the U.S. Congress that we intend to preempt, then there is an irrefutable presumption that there is no preemption. As a practical matter, I think that really goes to the heart of the problem, because, again, if you review the case law closely, you will find that it is only in the implied preemption cases where we are vastly losing our ability to deal with the issues facing the people of our various States and our various localities.

So if, in fact, this Senate and the Congress takes action along those three lines, we think that it will address the very serious flaws that we see in the current approach on preemption.

I want to thank you, Mr. Chairman, and you, Senator Voinovich, for giving us an audience from the standpoint of the NCSL and the Big 7 to talk about these issues that have been vexing and perplexing issues to us, at least during my tenure in the legislature, which covers about 2 decades. I think that if you enact this kind of legislation you will strengthen the hands of State and local government, and you will also strengthen the hands of the Congress, especially as it relates to the courts and to the Federal agencies, because your intention as you enact legislation will be specific and clear and will give them direction as to how they ought to proceed.

I thank you for giving me the opportunity to testify before you today.

Chairman THOMPSON. Thank you very much, Representative Blue. I sincerely appreciate that.

We will now call on Mayor Anthony. I am going to overlook the fact that Mayor Anthony's son, on behalf of the University of Florida, beat the University of Tennessee, back a couple of years ago practically single-handed. He reminded me of that yesterday. I am going to overlook that fact and welcome him here today. Mayor Anthony, I appreciate your being here.

TESTIMONY OF HON. CLARENCE E. ANTHONY,1 MAYOR, CITY OF SOUTH BAY, FLORIDA, AND PRESIDENT, NATIONAL LEAGUE OF CITIES

Mayor ANTHONY. Mr. Chairman, I feel more welcome now that you noted that point, and I will congratulate you and Tennessee for your year of champion reigning. It is a great opportunity.

Good morning, Mr. Chairman. For the record, my name is Clarence Anthony. I am Mayor of South Bay, Florida, and I am honored to serve as President of the National League of Cities, representing the Nation's towns and cities throughout our great country.

I am here this morning with my colleague to discuss whether we can achieve a more effective partnership to benefit our mutual constituents. We want to begin by thanking you for convening a session yesterday to start this dialogue so that we can continue to understand where the fundamental changes may occur in regards to our relationship at the Federal, State, and local level. We are grateful to you for your recognition of the importance of this issue, not just to us, but to our citizens and to all Americans.

The changes, both those ongoing and pending, in the Executive Branch, on the Hill, as well as by the regulatory agencies, could have long-term impacts on State and local governments, so we support fundamental changes in policy direction, many of which you have either authored or supported, to ensure more efficient and effective possible services to our citizens and taxpayers.

At the time of our Framers, when we were discussing the issue and the fashion of the Federal system and federalism, it was clearly a long journey through the mud and swamp from the White House to the Capitol. But as we look at Federal policy and the changes, it is a matter of microseconds in regards to information and technology and the borders that we have to deal with as we deal with the relevant system of federalism that exists today.

The most powerful trends affecting our future are international trade, deregulation, and information technology, and this morning, Governor Leavitt has already noted the report looking at the impact of global economy, deregulation, and information technology on the structure of State and local government. Yesterday, we had an opportunity to talk about what are the variables and what are the challenges that we are going to be facing, and clearly, we came up with some ideas that I think were revolutionary and will take some time to dialogue and to come to conclusion on.

For that reason, this morning, we join the Nation's Governors as well as my colleague, Representative Dan Blue, in making clear our commitment to creating a more enduring governmental part

nership. Let me make it clear that we support the Mandates Information Act, the Federal Financial Assistance Improvement Act, the Regulatory Improvement Act, and the Regulatory Right-To-Know Information Act. These are critical steps in this new information age to making a better process available for all decision makers, and we thank you, Mr. Chairman.

These may seem like small steps, but they are critical and crucial to the future of our relationship on all the levels. We hold as our highest priority, not only in our association but amongst our Big 7 organization, a broader effort to redefine our intergovernmental partnership, and for that reason, we are pleased about your leadership on the Government Partnership Act of 1999, along with the crucial and critical assistance over the past few months from Senator Levin, and, of course, I often refer to him as former president of the National League of Cities, Senator Voinovich. This bill marks, we believe, one of the most important efforts to fundamentally rethink the nature and relationship of our Federal system.

Our members overwhelmingly support legislation that requests that we halt the new trend of major preemption of a historical tradition of State and local governments and responsibility as one of, again, our top priorities.

No issue in 1999 is more likely to affect the bottom line of local governments and local government budgets and services than preemption, and the rights of citizens in cities and towns across the Nation than Federal efforts to preempt those historical and traditional municipal authorities. This is an issue city leaders will confront in the Federal courts, the Congress, and the administration, and at independent Federal regulatory agencies.

We believe the recent trend of Supreme Court decisions, the Safe Drinking Water Act, the Unfunded Mandates Reform Act, and the education FLEX legislation, demonstrate the possibilities of a more effective and efficient partnership. We note that at a time when it has become more difficult for the Congress to act on environmental legislation and the issues themselves have become increasingly complex, Congress unintentionally creates a greater role and authority for Federal agencies to set and direct Federal policy.

As we look forward to the issues that will shape the next millennium, we think it is important to secure a system where we have a greater reason to work together. Whether the issue is tax reform or electronic commerce or electric utility deregulation, any Federal action can have enormous consequences on States and local govern

ments.

We are pleased that the model set by this Congress of consultation first, joint efforts to achieve bipartisan consensus, and action which provides for pre-assessment accountability and enforceability is a model for the future. So we recommend a few things.

We recommend that the Committee consider the adoption of the pending set of federalism bills scheduled for markup next week. We recommend the introduction of the Government Partnership Act of 1999 to act as a follow-up to the Unfunded Mandates Reform Act of 1995. And, clearly, we are grateful for the leadership of the Chairman, Senator Voinovich, and other Members of the Committee, and we hope that we go back to the 200 years in Philadelphia where the Framers clearly provided the responsibility of local gov

ernment to serve the people, our constituents, and to help you to serve your constituents, as well.

Mr. Chairman, we thank you for this opportunity.
Chairman THOMPSON. Thank you very much.

Sitting here listening to you, it occurs to me that while a lot of people point out that we are living in a more complex society with technology and so forth, the global economy, is pushing us away from federalism and inexorably so, that they overlook the fact that another change that is taking place in this country over the last couple of or 3 decades is the increase in the quality of our government at our State and local levels.

At the State level, for example, we have more and more time devoted by the legislature. Some people do not think that is necessarily a good thing, but most people, when they look at the level of education, the level of time spent, the salaries and things, all of the indications that you might look at in terms of what kind of people you are getting into those areas, it is coming up all the time across the board.

So there is much more capability in every sense of the word at the State and local level than we used to have, so therefore, a better ability to deal with some of these issues. While there are some forces pushing in the other direction, there are some real important forces, I think, still pushing in the direction of recognizing the benefits of federalism.

I appreciate both of your references to what we are doing here in this Committee. We have tried to make a real statement and a real contribution to this. Everybody seems to give lip service to the concept of federalism and the laboratories of democracy and the government that is closest to the people is best and all that, but we are really trying to do something about it.

As you point out, in our next markup, we are going to be considering a regulatory accounting bill, which will indicate, from your standpoint, among many other things, the impact of regulation on State and local government. We will attempt to pull together in one place the extent of regulations and what it is doing with regard to State and local government.

The Regulatory Improvement Act that you have talked about will require more consultation with State and local governments. We would be requiring, in appropriate cases, cost-benefit analyses and risk assessments and things of that nature, not requiring anybody to make their decisions based on that, but at least having the information there, having some peer review, having some open discussion, some transparency, including discussions at an early stage with State and local governments before they are all locked in and there is really nothing you can do about it.

The grants management bill will help with regard to the administration of grants. All these things are coming up next time, and I think they are all a part of a bigger picture and I appreciate your endorsement of those.

Of course, there is the Government Partnership Act, as you mentioned, on the question of preemption. Again, what we are trying to do there is not come down with a heavy hammer and say, you have got to do it this way or the States and local governments al

eral Government makes a determination that we are going to preempt in an area, that we give it some consideration as to the ramifications of what we are doing, and second, to make sure that we intend to do it. We are apparently preempting in areas that perhaps we did not even intend to preempt, thus the doctrine of implied preemption.

So a lot of good things are happening and I think that one of the things we need to do, if we can move forward with the Government Partnership Act, is consider whether or not we should be in some way formally contacting your associations and having some discussions with regard to major changes that we might make in these areas as we do our assessments of the impact and so forth. I do not know how we are going to know that unless we contact you, so I look forward to us working together on those things.

As you look at it, you are looking at it from the State and the local level. Representative Blue, you mentioned that perhaps we are doing more harm than we realize. That intrigued me. Also, you mentioned in your written statement that the Federal Government is not always effectively protecting the public, even in the environmental public health areas. You indicated there might be some abdication there on their part.

Most people kind of look at the Federal Government and say, well, we have got to depend on the Federal Government totally to protect our health and environment. I take it from what you are saying that you do not necessarily subscribe to that totally. Could you elaborate on that a little bit?

Mr. BLUE. I think there are many instances in which State governments, especially, and to a more limited extent, local governments, can intrude into the environmental area. When you start talking about air quality on a large scale and issues like that, clearly, there is a need for Federal involvement.

But when you start talking about more stringent requirements at a State level, you talk about something over and above whatever the minimum requirements are that the Federal Government or a Federal agency may impose, State governments and local governments ought to be free to experiment from that platform, to add things to enhance the quality of life of their respective citizens.

Essentially, when I say "abdicate" in my statement, I meant it is not that the Federal Government has not entered into the field and has not legislated to some limited degree in an area. But in many instances, the ability of State and locally-elected officials to deal more seriously with specific problems, I think, is infringed upon sometimes when the Federal Government preempts the area and prohibits or prevents our government from entering in and enhancing whatever it is that you may be trying to achieve at the national level.

Chairman THOMPSON. That was part of the debate, for example, in the Safe Drinking Water Act. The Federal Government was requiring the locals to test for things that did not

Mr. BLUE. That did not grow anywhere within 2,000 or 3,000 miles, I think. There is something happening in Hawaii and you have to test for it in Oklahoma and Nebraska, or somewhere in the Midwest. It did not make a lot of sense.

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