If a bipartisan coalition in the Senate and House gets its way, Congress and the Executive Branch will have a harder time adopting laws and rules that preempt states and local governments on a broad range of issues, such as environment, health and workplace safety.
The Senate initiative, S.1214 ("Federalism Accountability Act of 1999"), is sponsored by Fred Thompson, D-Tenn., with support from Carl Levin, D-Ohio, and Joseph Lieberman, D-Conn. The measure got quick and decisive approval - 12 to 2 - from the Governmental Affairs Committee in August.
The House counterpart, H.R. 2245, sponsored by Rep. David McIntosh, a Republican who, incidentally, wants to be the next governor of Indiana, was approved by a subcommittee and, at press time, was awaiting consideration by the House Committee on Government Reform and Oversight.
The legislation would enhance the opportunity for state and local officials to influence the scope and effect of proposed federal laws and regulations that might conflict with or preempt state and local programs.
Not surprisingly, the legislation has active and enthusiastic support from a number of groups and organizations that represent state and local officials, including the National Governors' Association, the National Conference of State Legislatures and the National League of Cities.
These organizations have long complained that Congress, federal bureaucrats and the courts don't care about how federal laws, rules and guidelines affect the legitimate interests of the states. Where lawmakers and officials in Washington have not expressly displaced state programs, judges often have found "implied preemption" of state and local activity whenever "state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress."
"For 20 years or so we saw Congress employing the unfunded mandate to deal with the states, compelling us to do things without providing adequate funding," said Utah Gov. Michael Leavitt, the chairman of the National Governors' Association. "The new tool of Congress is preemption, which prohibits states from doing things. The problem is states and local authorities often are left unable to protect citizens because the national government, which moves into these wide areas, does not have the tools to enforce its actions."
Business, environmental, labor and consumer groups are vigorously opposing the legislation. The U.S. Chamber of Commerce, for example, is worried the bills would eliminate key national standards that affect commerce, leading to the potential for 50 different sets of rules on a host of issues ranging from product liability to workplace safety.
"Under the framework of attempting to provide flexibility for state and local governments, this legislation undermines public health, safety and environmental protections by requiring burdensome analytical requirements, imposing unrealistic and unfair requirements to favor states and local governments, and creating a mountain of litigation that would delay or stop federal government activities," says Gary D. Bass, executive director of OMB Watch, a nonpartisan group. Bass heads a coalition of hundreds of environmental, labor, consumer and other groups against the legislation.
Sen. Thompson answers the critics by noting that the legislation is simply "truth in government and truth in legislating."
"The two most fundamental questions in government are, No. 1, what should the government be doing, and No. 2, at what level should it be doing it?" he said. "This legislation says that we will not be willy-nilly preempting state and local governments without explicitly saying that is what we intend to do."
President Clinton is likely to veto the legislation in its present form. Meanwhile, he has attempted to co-opt the issue by signing an executive order in August that requires all agencies to appoint a "federalism assessment officer" to weigh the consequences of major regulations and to confer with state and local officials. His order, however, is much narrower in coverage than are the bills - chiefly because it doesn't mention allowing local officials to go to court to challenge federal agency rules.