[Congressional Record Volume 141, Number 11 (Thursday, January 19, 1995)]
[Senate]
[Pages S1160-S1189]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
UNFUNDED MANDATE REFORM ACT
The Senate continued with the consideration of the bill.
Amendment No. 151
(Purpose: To exclude laws and regulations applying equally to
governmental entities and the private sector)
Mr. LIEBERMAN addressed the Chair.
The PRESIDING OFFICER. The Senator from Connecticut.
Mr. LIEBERMAN. I thank the Chair.
Mr. President, I would call up amendment No. 151.
The PRESIDING OFFICER. The clerk will report the amendment.
The bill clerk read as follows:
The Senator from Connecticut [Mr. Lieberman], for himself,
Mr. Kerry, Mr. Levin, Mr. Lautenberg, Mr. Bumpers, and Mr.
Dorgan, proposes an amendment numbered 151.
Mr. LIEBERMAN. Mr. President, I ask unanimous consent that reading of
the amendment be dispensed with.
The PRESIDING OFFICER. Without objection, it is so ordered.
The amendment is as follows:
At the end of the amendment, and the following:
``(6) Exclusion.--For purposes of paragraph (1)(B), the
term `Federal intergovernmental mandates' shall not include a
provision in any bill, joint resolution, amendment, motion,
or conference report that would apply in the same manner to
the activities, facilities, or services of State, local, or
tribal governments and the private sector.
Mr. LIEBERMAN. Mr. President, I have called up this amendment on
behalf of Senators Kerry, Levin, Lautenberg, Bumpers, Dorgan, and
myself. And I am pleased to say that this is a very germane amendment.
I share the very, very serious concerns that have been raised by
officials of State and local government about the regulatory compliance
and other burdens that have been placed on States and local governments
by the Federal Government, by us. There is a problem here. It is a real
problem, and we ought to deal with it.
Last year, there was bipartisan legislation, S. 993, reported by the
Governmental Affairs Committee on which I am privileged to serve, which
I thought adopted a balanced approach to addressing the justifiable
concerns of State and local governments about unfunded mandates. We
established the principle there that Congress must be forced to
confront the costs that may be incurred by the State and local
governments when we pass legislation, whether or not we have authorized
funding for those costs. There must be an opportunity for the fullest
discussion, if there are not funds provided in the legislation we adopt
to cover the costs on State and local governments.
In other words, that kind of legislation should be subject to a point
of order if there is not information about the costs. I think that was
a very important principle that was established in S. 993, a very
important response to a very real problem, a very constructive
response.
I was pleased to be a cosponsor of S. 993 because it was all about
knowledge and congressional accountability. But I regret to say that in
my opinion S. 1, though it does some very good things, in one
particular way--others as well--but in one particular way it goes too
far. It simply takes a good idea and takes it so far that it creates a
new, and I think very threatening presumption.
Under S. 1, if the bill, joint resolution, amendment, motion, or
conference report increases the Federal intergovernmental mandate by
more than $50 million in a given year, a point of order will lie unless
there is a funding mechanism provided.
S. 1 also provides that if the funding mechanism is an authorization
of appropriation for the full amount of the mandate, then the bill must
designate a responsible Federal agency, and establish procedures for
that agency to direct that the mandate will become ineffective or
reduced in scope if the full amount of the appropriations is not
provided in any fiscal year.
In short, the presumption in S. 1 is that the Federal Government will
pay 100 percent of the cost of obligations imposed by the Federal
Government on States and localities. If the legislation states that the
Federal Government will pay the cost, the money must be appropriated or
the agency must declare the mandate ineffective or reduced in scope.
So S. 1 is a much more extensive reach, a much different approach to
the problem of unfunded mandates than that adopted in S. 993, which was
reported out of the committee last year. That is why I say it takes a
problem, unfunded mandates, and in its response reaches too far; and in
doing so, creates an unintended--but I am convinced very real and
inequitable--burden on private-sector entities, businesses that are
affected by these mandates. And it also puts at risk a whole array of
Federal law protecting the environment, people's health, people's
safety, people's rights, that the public simply does not want to
endanger, that the public wants us to continue to protect.
So under the mantle of dealing with unfunded mandates, this bill will
have the consequence, I am convinced, of putting extra burdens on
business, particularly small business, and in the process will create a
hurdle that will impede the protection of people's environmental
health, safety, and employee rights.
Let me say that in trying to separate out those mandates that
uniquely place responsibilities on State and local governments, and for
which we should feel a special obligation to pay the costs of those
mandates, and those mandates which deal with a problem and in doing so
place responsibilities--call them mandates--on public as well as
private sources of that problem, we are creating a real inequity.
But let me say what this amendment leaves intact. It leaves intact in
the underlying bill, S. 1, the requirement that Congress confront the
cost of our actions. It may be when doing so, no matter how worthy the
aims of the particular legislation, how protective it may be, how
popular it may be, that Congress, Members of Congress, in our wisdom,
will decide that it is not worth the cost. That is left in place in
this bill.
Also left in place is the second point of order, with all the extra
burdens, all the extra responsibilities on the Federal bureaucracy to
pay for the cost of mandates, or cut back or terminate those mandates
if they apply specifically to State and local governments.
The amendment is structured on a principle, and that principle is
that if Congress requires other levels of government to perform
governmental services, then Congress should pay the State and local
governments to do that. The appropriate area for legislation is where
States and localities are providing those governmental services,
mandated by Congress, that Congress is unwilling to fund;
responsibilities that are exclusively governmental, that do not apply
to private industry or private citizens.
The purpose of the amendment is to assure a fairer partnership
between those State and local governments and the Federal Government in
carrying out governmental programs. In its report on S. 1, the
Governmental Affairs Committee stated:
State and local officials emphasized in the committee's
hearings . . . that over the last decade the Federal
Government has not treated them as partners in the providing
of effective governmental services to the American people,
but rather as agents or extensions of the Federal Government.
But there is an enormously expensive governmental service obligation
associated, still, with many of the programs covered by this
legislation that our amendment would not affect. In fact, they are the
big-ticket mandate items for States and local governments: Medicaid,
AFDC, child nutrition, food stamps, social service block grants,
vocational rehabilitation State grants, foster care, adoption
assistance and independent living, family support welfare services, and
child support functions. Those are all examples of
[[Page S1161]] programs where the Federal Government has put
responsibilities on State and local governments, not on private
entities. We essentially delegated a governmental responsibility from
the Federal to the State and local governments. And those are mandates
whose treatment would be left untouched by my amendment; whose
treatment under S. 1 would be left untouched by my amendment.
For Congress to act to pass or reauthorize those mandates beyond the
$50 million annually exempted, there would have to be the finding that
Congress had put the money forth to pay for the State and local costs
of those programs or the point of order would appropriately lie and
Congress would be tested to express its will. Governor Voinovich of
Ohio has stated:
Many States cannot spend a greater share of tax dollars on
education because new Medicaid mandates consume more and more
of our resources. They account for 70 percent of Ohio's
mandate costs, nearly $1 billion over 4 years. Medicaid was
19 percent of Ohio's budget in 1982. It represents one-third
today.
So to me these are the most consequential, most costly mandates that
we at the Federal level have put on the States. And those are the ones
where we ought to have the process be forced to go through the extra
hurdles in S. 1.
Senator Bond, our colleague from Missouri, at the hearing held on S.
1 this year said:
Unfortunately, the State [State of Missouri] projects that
unfunded mandates will exceed $250 million. These are costs
that have been documented with respect to specific measures.
The Clean Air Act cost, in 1997, two-thirds of a million
dollars; total environmental mandates are estimated only at
$3.5 million.
I stop my quote from our colleague from Missouri here. Let me just
emphasize that I think what many of us have been thinking about is the
unfunded mandates, environmental particularly. As our colleague from
Missouri said in his testimony before the committee, consumers put a
relatively small burden--and as I will come back and argue, it is a
fair burden because it is also one placed on private sources of
pollution.
Then the Senator goes on to say the Carl D. Perkins Vocational Act
cost the State $16 million in unfunded mandates, $16 million as
compared to $3.5 million for total environmental mandates on Missouri.
The Department of Social Services, as one would expect, Senator Bond
says, was the big winner having the privilege of almost $130 million of
a very limited budget to comply with Federal mandates. The Federal
unfunded mandates survey for the National Association of Counties lists
the most costly unfunded mandate as the Immigration Act. That is the
type of mandate that applies specifically to State and local
governments and the type of mandate for which we should be tested,
forced to confront the costs, and go over the higher hurdle set in S.
1.
The city of Chicago survey of mandates listed airport restrictions,
arbitrage rebates, and bond financing restrictions, as the most
consequential to the city. I would distinguish these mandates from
other so-called ``mandates'' which really are about the adoption of a
law at the Federal level to respond to a problem--clean air, clean
water, safe drinking water, fairness to employees, as in the Family and
Medical Leave Act, where the source of the problem or potential problem
is both public and private. This amendment would eliminate that
inequity.
It exempts from the definition of a Federal intergovernmental
mandate, as is in the bill, it is a very simple amendment with big
consequences. It simply changes the definition of Federal
intergovernmental mandate in the bill and exempts from that definition,
for purposes of the requirement that the legislation must provide a
funding mechanism for 100 percent of the cost to avoid the point of
order, provisions which apply in the same manner to the State, local,
or tribal governments and the private sector.
For example, suppose legislation requires that all incinerators limit
emissions of dioxin to 12 parts per billion by the year 2000. That
would apply obviously to both public and private sector incinerator
operators. Under the amendment, the authorizing committee in its report
is still required to state the amount--this is under S. 1 if the
amendment were adopted--the authorizing committee in its report is
still required to state the amount of any decrease or increase in
funding whether the committee intends the mandate to be funded or
unfunded and any sources of Federal funding. Under the amendment, the
director of CBO would still be required to provide an estimate of the
cost to State and local governments of this requirement having to do
with emissions of dioxin that I have set up as the hypothetical here,
and to state if those costs are greater than the $50 million threshold
in the bill.
Under this amendment, if it is agreed to, the point of order would
still lie if the committee report does not contain that estimate except
as modified by the amendment of the Senator from Michigan which we
adopted earlier today.
However, under this amendment, there would be no point of order if
the bill did not provide a funding mechanism for 100 percent of the
cost of compliance with this dioxin reduction proposal for the State
and local governments.
Mr. President, this amendment covers only the situation where duties
and obligations apply in the same manner to private sector and State
and local governments. S. 1, in its current form, potentially, under
its procedures, sets up a two-track process here between private and
public entities and would exempt State and local governments from the
environmental safety, employee rights, and environmental standards that
competing private businesses must meet. So S. 1 would potentially
result in a competitive disadvantage for private enterprises engaged in
the same activities that the State or local governments are engaged in.
In the example I gave a moment ago, the burden would fall on the
privately operated incinerator to spend whatever was necessary to
reduce the emissions of dioxin whether or not Congress gave any help in
meeting the cost of that upgrading but would not similarly apply to the
publicly owned incinerator if Congress did not provide full funding.
Of course, the other consequence here, Mr. President, is that the
application of S. 1 as it exists now would probably result in
disproportionate risks to our citizens. I can tell you that the people
living around that incinerator would not care whether it was publicly
or privately owned. They want to be protected from toxins coming from
the incinerator.
Let me give some other examples. Under S. 1, the bill before us, and
in future legislation, State and local governments could be exempt from
paying their employees an increase in the minimum wage or providing
family and medical leave, requirements that all private businesses
would have to meet. Publicly owned or operated incinerators could be
exempt from air pollution standards while privately operated
incinerators would be required to meet those standards. Publicly run
drinking water systems might not have to provide pure water in the same
way that private water companies would have to provide. Public
universities and hospitals could be exempt from the requirements for
handling radioactive wastes while private hospitals, including
nonprofit hospitals, religiously supported hospitals and labs, would be
required to meet those standards.
Cars owned by the State or local government could be exempt from
requirements to run on cleaner burning fuels which apply to all other
citizens of the State, not just to private businesses, but to everybody
else in the State. States or local governments that operate schoolbuses
could be exempt from safety requirements that would apply to buses
operated by private companies. State-owned liquor stores could be
exempt from standards of conduct that would be applied to privately
owned and operated stores. States and municipalities could be exempt
from requirements to retrofit or replace air conditioning units to
remove CFC's while private entities would have to do that.
Certainly, Mr. President, we do not mean to say that there should be
a presumption, if Congress determines a law is necessary to regulate
safety, for instance, on school buses, safety of our kids, that they
must also provide 100 percent of the compliance costs of publicly owned
buses or else they do not have to meet that standard. The point here is
that in adopting legislation [[Page S1162]] which we have given--I
think unfairly in this case--the pejorative term ``mandate'' for
expressing a value, for setting a national goal, we are trying to
protect people. I do not think that the people who sent us here want us
to protect them any more from dirty air or dirty drinking water than
from accidents of their kids on school buses. They do not want any
lower level of protection if the source of those threats to their
safety and well-being are from public as opposed to private sources.
Let me talk for a moment about the consequences of public health. It
has been my honor to serve on the Environment and Public Works
Committee, and this is an area in which I have spent some time. And I
am particularly concerned about the unintended, and I think undesired
by the American people, consequences of S. 1 on environmental laws.
When we pass a law, we have determined that the national interest
requires that law to achieve a goal, that there is a problem out there
that requires a national solution to protect public health or the
environment. For example, more than 25 years ago, Congress determined
that the basic principle is that the Federal Government should be the
ultimate guarantor of minimum standards for clean water and clean
air. And there is a rationale for that. It is not just a power grab by
the Federal Government for the sake of having power. Environmental
problems do not end at State borders. Dirty air and dirty water move.
Only the Federal Government can ensure that an up-river or upwind city
or State does not dump its pollution on downwind or downstream States
or localities.
Only the Federal Government can ensure that one area of the country
does not so lower its standards for clean air or clean water for the
purpose of attracting business, for instance, to the detriment of its
neighboring States. Federal pollution standards apply to all sources of
pollution. It is obvious that you cannot solve the problem if you just
apply a national solution to one part of the problem, whether or not
the source of pollution is run by a public or by a private entity.
I can tell you that a family where the grandparents are suffering
from emphysema do not care if the incinerator that is belching dirty
air is publicly or privately owned or operated. They believe that the
Government has an obligation to ensure that they have clean air. The
parents whose child gets diarrhea from drinking dirty water does not
care whether a public or private entity provided that water. They want
the Government to ensure that the water is pure, regardless of who is
providing that water.
During the last 25 years, the Federal Government, in fact, has chosen
to provide billions of dollars to assist State and local governments in
complying with some of these pollution control laws. I have fought
myself for that funding and will continue to do so. But it seems to me
that when we identify a serious national problem such as dirty air and
dirty water, dirty drinking water, it is wrong to place a mandate on
ourselves to say that if we are not able to pay for 100 percent of the
compliance cost, that a State or local government can escape those
pollution controls that apply to all other sources of pollution. If we
took it to its extreme, it would take the concept that is generally
accepted, which is that the polluter pays. We can turn it on its head
and say we have to pay the polluter.
S. 1 could result in vastly different levels of protection for
citizens throughout this country, or even within one State. Citizens
living near or downwind from a publicly owned facility could be exposed
to toxins emitted from an incinerator which could be exempted from
pollution control standards, while citizens living near a private
facility would be protected from those emissions because that private
facility would not be exempt.
Let me talk about the competitive consequences I have referred to.
Obviously, results like those I have talked about would put private
entities at a competitive disadvantage. In a letter to our colleague
from Idaho dated December 16, 1994, Browning-Ferris Industries, a waste
management company, discussed some of the potential consequences of
unfunded mandate legislation:
The results would severely skew the marketplace in favor of
Government rather than the private sector services, because
the private sector would have to add in prices to its
consumers for compliance with these various Federal rules
that customers of the public sector would not have to pay.
The Environmental Industry Association, in a letter dated January 9,
1995, an association of a lot of companies that produce environmental
cleanup equipment and are involved in the waste business, states this--
and they support a lot of this bill:
Notwithstanding provisions in the bill for parity of
treatment between the public and private sectors for the
purposes of analysis, there seems to be an inconsistency in
actual treatment between the two sectors because the
legislation subject to the point of order vote applies only
to the Federal intergovernmental mandates and not private
sector mandates.
This is the Environmental Industry Association Business Group:
We respectfully restate our basic concern that to exclude
State and local government--but not the private sector--from
the costs of compliance with providing goods and services
where both sectors compete would be both unfair and
unfaithful to the core principles of the Job and Wage
Enhancement Act-- art of the contract for America--of which
S. 1 is the first piece.
Those are strong statements from private sector entities who fear
exactly the disproportionate burden that this amendment of ours would
eliminate from the bill.
Mr. President, the unintended consequences of the legislation, in
fact, and ironically, may be to encourage an expansion of Government,
which is exactly the opposite of what the people supporting this in its
current form want. Government could be motivated to contract out fewer
services to private industry because the cost charged private industry
probably would be higher.
This issue was highlighted for me by the National School
Transportation Association, which represents the portion of the
familiar yellow or orange school bus fleet operated by the private
sector which is about a third of the Nation's school bus fleet.
Presumably, those school districts which have contracted out this
function have saved money. But in a letter dated January 10, 1995, the
private operators point out that one of the consequences of S. 1, the
legislation before us, may be to remove the incentives for school
districts to contract out for those services, because by keeping the
services in-house, the costs of compliance with various Federal
requirements can be avoided. The letter states:
Such an outcome would be sharply at odds with the
burgeoning wave of privatization that is realizing, for
financially strapped school districts, significant savings
and could disrupt the level playing field for our industry
that has worked so hard over the past decade to achieve these
advances.
Mr. President, I ask that the full text of two letters from the
National School Transport Association be printed in the Record at this
point.
There being no objection, the letters were ordered to be printed in
the Record, as follows:
National School
Transportation Association,
Springfield, VA, January 10, 1995.
Hon. Joseph I. Lieberman,
U.S. Senate,
Washington, DC.
Dear Senator Lieberman: The National School Transportation
Association, representing the nation's owner-operated yellow
school bus fleet, applauds your leadership efforts on the
unfunded mandates legislation. We are heartened that this
session's legislative vehicle contemplates analysis by the
Congressional Budget Office (CBO) of regulatory and fiscal
impacts on private industry as well as state and local
governmental entities. This is a critical provision which
must be included in any final legislation if the Congress and
the American public are to be fully apprised of the
consequences of new federal requirements.
As the debate moves to the Senate floor and the impacts on
private industry competitiveness are assessed, we wanted to
bring to your attention concerns of the school transportation
industry which reflect those also presented you by Browning-
Forris Industries and others. NSTA members operate in all
fifty states and in total operate some 110,000 buses
constituting about one-third of the nation's yellow school
bus fleet. School districts have come to realize significant
operational cost savings by contracting out pupil
transportation services. We are fearful that one unintended
consequence of the legislation may be to remove incentives
for school districts to consider contracting for these
services if by keeping such services in- [[Page S1163]] house
the costs of compliance with various federal requirements can
be avoided to some degree.
Such an outcome would be sharply at odds with the
burgeoning wave of privatization that is realizing for
financially-strapped school districts significant savings,
and could disrupt the level playing field our industry has
worked so hard over the past decade to achieve. We urge that
attention be given to this concern as the debate proceeds. At
the very least, any CBO analysis should also include some
assessment of impacts on present and future competition for
provision of services. If local governmental entities, such
as school districts, are to be absolved of responsibility to
comply with new federal requirements, then certainly equity
and competition demand that like treatment be extended to the
private sector.
We stand ready to work with you and your staff on possible
remedies to this problem. Please feel free to contact Peter
Slone at NSTA's governmental relations firm, Gold &
Liebengood, 202/639-8899 and he would be pleased to provide
further assistance. NSTA remains hopeful that this
legislation becomes the law of the land and that these
unintended consequences can be avoided. Thank you for your
careful attention to this issue.
Sincerely,
Noel Biery,
NSTA President.
____
National School
Transportation Association,
Springfield, VA. January 17, 1995.
Hon. Joseph I. Lieberman,
U.S. Senate, Dirksen Office Building, Washington, DC.
Dear Senator Lieberman: The National School Transportation
Association (NSTA) applauds your efforts to bring common
sense and equity to the debate on unfunded federal
intergovernmental mandates. In particular, NSTA
enthusiastically supports an amendment you intend to offer
which would ensure that nothing in the procedural and fiscal
protections established by the bill have the effect of
limiting the ability of private sector service providers to
compete for the ability to meet the needs of many state and
local governmental entities such as school districts.
NSTA is the national trade association for the owner-
operated component of the nation's yellow school bus fleet.
We have been a leader in advocating safety advances and make
a significant contribution to the nation in helping transport
some 24 million school children each day. The State of
Connecticut has a long tradition of contractor-provided
school transportation services with over 90 percent of that
state's yellow school bus fleet owned and operated by a host
of transportation providers, many of which are small
businesses. By contracting out such services, school
districts have come to realize more cost-effective and
reliable service. Today, NSTA members operate some 110,000
school buses in fifty states.
We are fearful that if the effect of the legislation under
consideration is to scale back to some degree the need for
school districts to comply with important environmental,
workplace, safety and other new federal requirements, then
our nation's school children may well be imperiled. Further,
by subjecting school districts which operate their school bus
fleets to a lesser standard than their private sector
counterparts, the Congress would in effect establish a
dangerous double standard and remove incentive for
privatization of those services. At a time when many school
districts are financially-strapped and facing further budgets
curtailments, we should promote rather than impede their
ability to contract for services where savings could be
realized and safe and reliable service ensured.
Thank you for your leadership role on this important
competitiveness issue. We are hopeful that through your
thoughtful persistence the nation can avoid unintended
consequences from this legislation which raises serious
safety and fair market competition issues.
Sincerely,
Noel Biery,
NSTA President.
Mr. LIEBERMAN. Mr. President, at the same time, by exempting the
smokestacks and discharge pipes operated by State and local governments
from complying with future environmental standards, S. 1 would force a
wide range of businesses to bear even more of the burden to meet
overall clean air and clean water goals. For example, if publicly owned
incinerators or landfills do not reduce emissions contributing to smog,
carbon monoxide, and particulates, private sources of pollution would
have to do more in order to meet the cleaner environmental goals.
Let me illustrate, if I might, in a little greater detail how this
legislation could hurt private businesses. States and businesses
advocate water pollution laws that establish an overall pollution
loading limit for individual bodies of water. That has been something
that the sources of pollution, potential sources, have asked us to do.
We have done it. This is based on the notion that each body of water is
best managed for cleanup based on a scientific understanding of what
that river or lake or bay can withstand in the way of pollution,
identifying the sources, and then assigning the source's limits based
on what they contribute. This is very fair, and it creates a
cooperative effort to clean up a body of water. All sources of
pollution, whether industry or sewage treatment plants operated by
cities, get divided up for that pollution limit; so much for this
sewage treatment plant, so much for that factory, et cetera, et cetera.
But if publicly owned wastewater treatment plants are permitted to
discharge, for instance, more nitrates into our rivers and bays, well,
who are we going to have to turn to to make up the difference to reach
the standard, the threshold, the goal that we have for cleaning up that
water? Is it going to be the factory along the water, the rancher, or
the farmer who is using fertilizer upstream? Not only would S. 1 hurt
business under this scenario, it would usurp State and local efforts to
clean up their rivers, bays, and lakes, based on sound science and
local control.
Mr. President, those of us who represent States which, in some part
at least, are victims of pollution from upwind or downstream are
particularly vulnerable and feel so under this proposal. Let me be very
specific. If municipal sewage plants in New York will be relieved of
future requirements to comply with water pollution standards because
the Federal Government has not paid 100 percent of the cost of that
cleanup, Connecticut industries and residents will bear a much greater
burden if we are ever going to clean up Long Island Sound.
In fact, it would be impossible to ever clean up the Sound if New
York City sewage treatment plants were exempt from water pollution
control requirements. New requirements for more flexible approaches to
cleaning up our rivers, coast lines, lakes, and estuaries focus on
watershed-based planning in which wastewater treatment plants,
industrial discharges, and farmers all work together to meet the
loading tolerance of a particular body of water. These are zero sum
gains. If the requirements on public sources of water pollution go
down, the requirements on the private sources will go up and, believe
me, they will be costly and burdensome.
Connecticut also has one of the most severe air pollution problems in
the country, because we are the victims of dirty air transported from
upwind States. Emissions of sulfur dioxide and oxides of nitrogen from
powerplants in upwind States, including Midwestern States, contribute
significantly to our smog problem and are responsible for the acid rain
that falls on our State and many States throughout New England. If
powerplants that may be operated by a public entity are exempt from
future requirements under the Clean Air Act, Connecticut's industries
will bear a greater cleanup burden, and the plain fact is--and it is a
sad fact--that our citizens will breathe dirtier air and they will be
sicker. I share the concerns raised about the potential negative impact
of unfunded mandates legislation on Connecticut's severe air pollution
problems, particularly dirty air transported into Connecticut from
other States, by my colleague Congressman Chris Shays during the markup
of House unfunded mandate legislation in the House Government Reform
and Oversight Committee. The same points he raised apply to S. 1.
Mr. President, let me provide just some general statistics relating
to the unfair burden that may be inadvertently created by S. 1. In its
1992 report to Congress, EPA examined the sources of pollution in
estuary waters. Of the 8,000 square miles of impaired estuarine waters,
municipal sewage treatment plants affect 53 percent of impaired miles,
and urban runoff/storm sewers affect 43 percent of those impaired
miles. Obviously, if we allowed some or all of these sources to be
exempt from future water pollution requirements, the resulting burden
on industries contributing to the pollution would rise dramatically if
we are to succeed in cleaning up our estuaries.
Mr. President, I find it particularly ironic that we are considering
this legislation right after we passed S. 2, the
[[Page S1164]] Congressional Accountability Act, because we finally
have managed to impose the discipline of our laws on ourselves and now
we are talking about a huge potential loophole in applying our laws to
State and local governments.
In a way, I fear that this act, S. 1, might, if it is passed as it
reads now, come to be known as the State and Local Government
Unaccountability Act of 1995.
There are other consequences of the presumption in S. 1 that could
result which are perverse and clearly unintended. A town that operates
its own hospital and incinerator would, in effect, be receiving tax
dollars from a town where there was a private incinerator and hospital.
In other words, it is unfair to the taxpayers who pay for the
disproportionate burden.
Mr. President, finally, I am also concerned about the potential legal
issues raised about this point of order that is created in S. 1. In a
letter to Senators Roth and Domenici, dated January 8, 1995, seven
professors of law contend that the procedure in this point of order may
create problems under article 1, section 1 of the Constitution.
Although it is settled that Congress may delegate to executive agencies
the power to devise policy to meet congressional objectives, Congress
must establish an intelligible principle to which the executive must
conform. These professors state that the procedure in S. 1 might go far
beyond such delegations because Congress could expressly authorize
administrative agencies to amend or temporarily nullify statutes which
could be held to be an unconstitutional attempt to delegate legislative
powers to executive agencies.
I do not know if this analysis is correct, but I am concerned about
it. I am concerned about whether we have assurances that agencies will
be fair and evenhanded when they determine how to reduce the scope of
the mandate and whether S. 1 contains adequate safeguards in that
regard.
Mr. President, this amendment would simply narrow the scope of the
second point of order in S. 1. It leaves intact most of S. 1. In fact,
it leaves intact the 2 points of order that would lie against the
largest costs on State and local governments of Federal mandates. They
are all still left intact. It would still ensure, that is to say, that
a point of order would lie if we do not have full information about the
costs of mandates to State and local governments. It would still ensure
that the committee report state whether there is funding for those
mandates. It would still contain the second point of order for mandates
that relate specifically to State and local governments, and are not
part of trying to solve a broader national problem.
But for those mandates that apply to State, local, or tribal
governments and the private sector, it would close a loophole that is
unfair to the private sector and which would potentially exempt State
and local governments from a whole host of environmental health and
safety laws. And it would have, therefore, severe consequences, in my
opinion, for the health and safety of the American people.
So let us pass a good bill here, Mr. President. I want to vote for S.
1, but I just feel that, in its current state, it goes too far. Let us
pass a bill, not a Pandora's box filled with unintended consequences.
Again, I say, if the American people knew about the impact of this
legislation, it would have not only unintended consequences but
undesired consequences, consequences which the American people clearly
do not desire.
Mr. President, I urge adoption of the amendment and I yield the
floor.
Mr. KEMPTHORNE addressed the Chair.
The PRESIDING OFFICER. The Senator from Idaho.
Mr. KEMPTHORNE. Mr. President, I would like to inquire of the sponsor
of the amendment if it would be possible at this time to enter into a
time agreement so that we could have some predictability on when the
next vote may occur. Would an hour and a half, equally divided from
this point, be in agreement with the Senator?
Mr. LIEBERMAN. Mr. President, I suggest the absence of a quorum so
Senators on our side can consult.
The PRESIDING OFFICER. The clerk will call the roll.
The legislative clerk proceeded to call the roll.
Mr. KERRY. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. KERRY. Mr. President, I will just ask my colleagues if it might
make sense if one of us kept going while they confer. This Senator has
no problem with a time agreement. If they want to discuss the time
agreement, that will be fine, but I think we might use the time
advisedly.
Mr. President, I first want to all start by congratulating the
Senator from Connecticut and also the Senator from Michigan, Senator
Levin, for their efforts on this bill. I think the Senator from
Connecticut has done an outstanding job of laying out in great detail
the problem here, and I am not going to repeat all that he has said.
I might say, though, I saw that the distinguished majority leader was
on the floor a moment ago. I heard him prior to that say to the Senate,
chastising us for not proceeding faster on this bill, that the
amendments that have been brought have not been relevant to this bill.
I might say to the distinguished majority leader and to the other
side that the pending amendment before the Senate right now, I believe,
is the Gorton amendment; is that correct?
The PRESIDING OFFICER. The pending amendment is the Lieberman
amendment to the Gorton amendment.
Mr. KERRY. I believe, if I am correct, the Gorton amendment is on
national historical standards; is that correct?
The PRESIDING OFFICER. That is correct.
Mr. KERRY. I simply point out to my colleagues that this is an
amendment to a Republican amendment, and the Republican amendment which
consumed most of yesterday afternoon has nothing to do with this
legislation. I happen to support the Republican amendment.
So the Republicans have exercised their right of coming to the floor
in order to attach to this legislation something they thought was
important and, in fairness, that right ought to also lie, as it always
has through the centuries of the Senate, with the other side. So I
think it is inappropriate at this point, only several days into this,
to be complaining about the fact that there are some amendments that
some deem to be relevant but not germane, or germane but not relevant,
whichever the case may be.
The Senator also asked somebody to look them in the eye and say they
want to pass this legislation and they are not delaying it. I will look
them in the eye if they are here and I will tell them I want to pass
this legislation and I am not delaying. I will say it again: I want to
pass this legislation and I am not delaying.
It seems to me that we ought to be able to work out among Members an
agreement on a number of amendments that are relevant to this and,
hopefully, proceed forward in a way that is intelligent. Let me
emphasize ``intelligent.''
I remember the majority leader coming to the floor many times last
year saying to America ``We are not delaying. We are just trying to
save America from bad legislation.'' Or, ``We are trying to save the
country from something that goes too far.'' Or, ``We are trying to save
the country from legislation that we think can be improved.'' That is
what we are doing, not saving it from a bad idea but making a good idea
better.
We support the notion that we need to reevaluate unfunded mandates.
Mr. President, we should not in the process of passing a bill on
unfunded mandates do so in an irresponsible way that does not allow for
fixing what we all know in the legislative process is the capacity of
one word misconstrued or one word misplaced, to have an unintended
consequence.
Moreover, I can remember in 1986 when we passed the Tax Act here. I
went to Senator Russell Long because we were concerned about a
particular component of that bill with respect to real estate. He said,
``Don't worry about that. We will pass that now and come back and fix
it.'' Being new to the Senate, I believed him. I would not believe that
statement today. The fact is that we did not come back and fix it. Over
the years, the results produced, I [[Page S1165]] think, terrible
unintended consequences of devaluing certain amounts of property in
America with unintended consequences to banks, to the savings and
loans, and to a host of economic interests in this country.
Now, we ought to do a better job, Mr. President, of evaluating the
cost of programs. It is irresponsible for the Senate to pass a program
mandating actions by States or local communities of which we do not
understand the implications.
I think the days have long passed by which Americans have come to
conclude that they want to have a better sense of weighing the value of
a particular environmental concern or a particular health concern
against the totality of cost or the rate at which that cost might be
imposed on them.
I also ask my colleagues to remember back to the 1960's and 1970's
when a river in Ohio used to catch fire regularly: the Cuyahoga River.
In response to rivers that caught fire and toxic and hazardous waste
dumps which we knew were causing cancer and killing people in this
country, we passed a set of standards.
A mandate is not just a mandate. It is not just a mandate to spend
some money. It is our collective view as a Nation of something to which
we want to aspire. It is our view of a goal or a standard by which we
want to live. So when President Bush came to the Congress and joined
the fight to protect the environment and said we ought to have clean
air, he was expressing the hope and desire of millions of Americans to
be able to breathe air that is clean. The result was Congress passed a
notion of how we wanted to live, of a standard.
Subsequently, in the 1980's, particularly under President Reagan,
there was an enormous shift in the revenue versus expenditure
relationship. We all remember the promises made back in the early
1980's--if we cut taxes and raise defense spending we were going to
churn up the engine of this economy and we were going to ultimately
have increased revenues.
Well, we took the debt of the Nation from $1 trillion to over $4
trillion in the span of a decade. It was that diminution of the Federal
partnership throughout the 1980's that has begun to create this new
rush to reevaluate Federal mandates.
What happened during the Reagan era was the Federal Government left
the mandate in place because it expressed the will of the people, but
it took the money away. That is what has brought Members here. A
perpetual process of the reduction of funding to States and local
communities, leaving in place a series of mandates and, indeed, I might
add, adding some mandates.
Most of the mandates that we are currently operating under were put
it place in the 1960's and 1970's--not the 1980's--with the primary
exception being the Clean Air Act. But I do not think most Americans
have decided they do not want to breathe clean air. I do not think most
Americans have decided that they want their kids living next to toxic
waste dumps, and they are ready to have them get cancer and die. I do
not think most Americans have decided that they are prepared to have a
whole erasing of the standards of safety on our roads, on the standard
of safety that we know have saved lives. I do not think that is what
they are saying.
Now, if this bill, unintentionally-- and I insist, unintentionally--
if this bill not as a matter of purpose but as a matter of unintended
consequence, is going to have the impact of diminishing the capacity of
people in this country to have those higher standards of health or
safety, then I think people would think twice. If this bill
unintentionally creates a disadvantage to the private sector, I think
people would say ``Wait a minute, is that really what we are meaning to
do here?''
Now, I am 100 percent in support of our requirement that we evaluate
the cost of Federal requirements to both the public and private sector.
We ought to evaluate how we spend our money. In that evaluation, Mr.
President, we also ought to consider the full measure of the
relationship between the Federal Government and the States and
localities. For instance, we allow the States and localities to benefit
by virtue of a $66 billion a year deduction on State and local
government income taxes and other tax deduction.
In effect, part of the Federal-State partnership and relationship is
our payment of 40 percent of higher income people's State and local
taxes. Is that taken into account in this mandate bill? Is that taken
into account in the requirement of the commission to evaluate Federal
mandates? The answer is ``no.'' That is an unfunded mandate, in
essence, on a whole lot of low-income people that do not deduct,
because that is a benefit that only goes to people who deduct. If you
itemize your taxes and you deduct you get the benefit.
So, in effect, the Federal Government is paying for 40 percent of the
local and State taxes of upper-income people as a consequence of our
allowing that deduction. There are a whole set of tax expenditures,
similarly, in the Federal-State relationship for which we are assuming
the burden.
Now, I say this as background to this particular amendment that the
Senator from Connecticut and the Senator from Michigan are joining
together and bringing to the floor, because it underscores the
complexity of this relationship. It underscores the fact that if we
take one piece of this broad mosaic of our economy and we suddenly rip
it off, we may have a whole set of consequences that impact other
people. And we are just respectfully suggesting, in an amendment that
is really very narrow in scope, in a very limited amendment, we are
suggesting that there is a way for the Senate to legislate
intelligently and avoid an unintended consequence.
Now, what is that unintended consequence? Just very quickly to go
back to my colleague from Connecticut and his excellent description.
Mr. President, we have a very broad definition in here of a Federal
mandate. The definition we have in this legislation covers all State
and local activities including activities where there is a governmental
role, such as in administering any appropriate program but also where
there are activities that are not of a governmental nature. So we are
saying in this bill, any Federal program mandated that covers an
activity where the activity or entity acts in a governmental way or in
non-governmental functions we are going to apply this bill.
If you do that, Mr. President, you are covering activities where the
Government entities are acting as employers and where they compete in
the marketplace with the private sector.
An example of that would be a landfill or an incinerator. You could
have a local government-owned landfill or incinerator operated in
competition with a private landfill or incinerator operator. As it is
currently written, this bill will set up a different relationship
between the public entity and the private sector. It will exempt the
public entity from having to live up to a Federal mandate, but it will
not exempt the private entity from that same mandate.
So we will continue to say, as I think the American people want to,
that with respect to the environment or health or public transportation
safety or workplace safety, we will continue to say, ``You, the public
entity, are exempt unless we have decided to pay 100 percent, and, you,
the private entity can continue to operate under the burden of the
Federal mandate,'' which means that the public entity has a lower cost
of doing business, which means we have advantaged them in the private
sector.
I received a letter from BFI, which is Browning-Ferris Industries. We
all know them. I know they have written a letter to my colleagues
subsequently retracting some of what they said in this letter, but not
retracting the substance, which is what I want to emphasize here. What
they said to me was:
Dear Senator Kerry: * * * Without legislative language
along the lines of the enclosed, unfunded mandates
legislation--even if it is prospective only--
And I underline.
could have the effect of subjecting the private sector to a
regulatory (and cost) burden that the public sector would not
face absent Federal funding. The enclosed language would
merely have the effect of assuring a level playing field
between the public and private sectors in those instances
where there is some form of competition between the two
(hospitals, transit, higher education, waste management, et
cetera).
This letter was dated December 22. On January 11, they wrote to
Senator [[Page S1166]] Kempthorne--I think it is probably in response
to concern about the other--and they said:
We expressed our views at a time when one of our concerns
was that unfunded mandates legislation could have a
retroactive effect. It is evident that S. 1 has a prospective
effect only, which we understand was your intent all along.
After reviewing the legislation that will be considered on
the floor and after discussions with your office, we
recognize that among your objectives for S. 1 is creation of
a favorable climate for the private sector. In fact, S. 1
seeks creatively to address the concern in some quarters that
unfunded mandates legislation could disadvantage the private
sector where public-private competition takes place.
Moreover, after many years of experience in working with
you--most of them prior to your tenure in the Senate--BFI is
convinced that your dedication to free enterprise is
unsurpassed.
They go on to say:
* * * we are pleased to strongly support S. 1.
I am not holding them out as not supporting it, but they nowhere in
their second letter--nowhere--address the concern they express in their
first letter. They simply say that ``we understand that it is not going
to be retroactive.'' In their first letter, they said, ``even if it is
prospective only.''
The fact is that by taking it out of retroactive, you are not
diminishing the capacity for future unfunded mandate requirements to
create this unlevel playing field, Mr. President.
What would happen is, you would have these public entities that
engage in the hiring of employees and compete with the private sector,
they would be exempt from obeying worker protection laws, like the
Parental and Medical Leave Act; they would be exempt from the
environmental health and safety requirements which the rest of the
private sector has to comply with; publicly owned incinerators would be
exempt from air pollution standards; school buses, as my colleague from
Connecticut has pointed out, would be exempt from safety standards;
cars owned by local government could be exempt from emission standards;
State-owned liquor stores could be exempt from standards of product
that apply to privately owned stores; publicly owned hospitals could be
exempt from requirements for the proper disposal of medical waste.
I do not think anybody in the Senate wants to do that. I really do
not believe that my colleagues think that is good policy or that that
is what this bill is supposed to do.
I know my colleague is going to stand up and he is going to point to
language added to S. 1 calling for committee report language. And in
his language in the report he says that the evaluation has to include a
description of the activities taken by the competition to avoid any
adverse impact on the private sector of the competitive balance between
public and private sector.
However, that is the report. That is not substantive. It is not a
requirement nor is it an exemption. What that language does is, in
effect, acknowledge that this is a problem. It says that you have to go
out and make this evaluation, which means you are going to have this
imbalance in the marketplace, you are going to have to go make the
evaluation, you are going to have a point of order lie with respect to
it, as my colleague has said, then you have to come back and jump
through hoops of points of order and try to pass something to redress
what any free enterprise capitalist should not want to have happen in
the first place.
In effect, if you pass this bill as is, it is a kind of socialism
because what you are doing is advantaging the Government against the
private sector. You are, in effect, voting to say we are willing to
take an unfunded mandate away from the public entity and we are going
to leave it on the private entity. That does not make sense to this
Senator. And for the life of me, I cannot understand why so many folks
on the other side of the fence are so sanguine about this reality of
the imbalance.
I asked them to look at the language. I asked them to measure it.
This is not an exaggeration. I do not think the Senator from
Connecticut has anything remotely resembling a reputation that is any
less than diligent. He is one of the strongest advocates in the U.S.
Senate for the interests of competition and business and the private
sector. I think if you take a hard look at this, one has to be
concerned about this relationship.
So we are here, respectfully suggesting to our colleagues that the
goal of making the judgment about expense is absolutely worthy, but to
undo the partnership completely in a way that imbalances this
relationship between public and private is not worthy of this
legislation and it is not what we ought to be seeking to do in the U.S.
Senate.
I assure my colleagues, if this happens, we are going to be back here
revisiting the quagmire of competition or of imbalanced competition
that we will have created as a consequence of that.
Again, I say, I applaud the work the Senator Kempthorne and Senator
Glenn and others have done in trying to create a responsible climate of
evaluation of costs before we impose them. But there is a
responsibility in the Federal partnership to try to be fair. I think
that, regrettably, we will not have met that standard unless we try to
adopt some change within this legislation.
Mr. KEMPTHORNE addressed the Chair.
The PRESIDING OFFICER. The Senator from Idaho.
Unanimous-Consent Agreement
Mr. KEMPTHORNE. Mr. President, I ask unanimous consent that time
prior to a motion to table the pending Lieberman amendment be as
follows: 45 minutes under the control of Senator Lieberman; 20 minutes
under the control of Senator Kempthorne; and 30 minutes under the
control of Senator Levin; that following the conclusion or yielding
back of time, Senator Kempthorne, or his designee, be recognized to
make a motion to table the Lieberman amendment.
The PRESIDING OFFICER. Is there objection?
Mr. LEVIN. Reserving the right to object--and I do not expect to
object--Mr. President, I note the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The assistant legislative clerk proceeded to call the roll.
Mr. KEMPTHORNE. Madam President, I ask unanimous consent that the
order for the quorum call be rescinded.
The PRESIDING OFFICER (Ms. Snowe). Without objection, it is so
ordered.
Mr. KEMPTHORNE. Madam President, while this unanimous-consent request
is being considered on this side of the aisle, I suggest it would be
very appropriate for the chairman of the Governmental Affairs Committee
to go ahead with his remarks concerning this amendment.
The PRESIDING OFFICER. The Chair now recognizes the Senator from
Delaware.
Mr. ROTH. Madam President, I strongly oppose this amendment. Its
effect would be to exempt from the requirements of this act those
Federal mandates involving State and local government activities, when
the private sector is also engaged in the same activities. Now, this
exclusion would seem to appeal to notions of fairness but in fact would
effectively gut the bill.
In truth, there is very little that State and local governments do
that no one in the private sector is also engaged in doing. This is
especially true since proponents of the amendment include those
instances where one city franchises a private contractor to render a
service for which another city might directly use its own employees.
Trash collection and disposal is one example sometimes cited. Waste
disposal companies are said to compete with the public sector in that
they try to convince governments to contract out such service and
therefore have to show that they can do it cheaper than government.
It has been argued that Federal subsidies to State and local
governments would in that type of instance upset some competitive
balance.
But other than enacting laws, everything a city or a State does could
be covered by such competitiveness principles, particularly as more and
more governments are moving to contract out a broader range of
functions and services.
Let me give a few examples. Police departments. Police departments
compete with private security guards and private residential patrols.
[[Page S1167]]
Mr. KEMPTHORNE. Will the Senator yield?
Mr. ROTH. I will be very happy to yield.
Mr. KEMPTHORNE. I thank the Senator for that courtesy.
Madam President, I again renew my unanimous-consent request. If
necessary, I will restate it.
The PRESIDING OFFICER. Is there objection? Without objection, it is
so ordered.
Mr. KEMPTHORNE. I thank the Chair. I thank the Senator from Delaware.
Mr. ROTH. Madam President, as I was saying----
Mr. LEVIN. Madam President, if the Senator will yield again, is the
Senator from Delaware----
Mr. ROTH. I will be happy to yield without losing my right to the
floor.
Mr. LEVIN. Is the Senator speaking under controlled time?
The PRESIDING OFFICER. The time is now under control. The question is
yielding.
Mr. KEMPTHORNE. Madam President, the Senator from Delaware is on my
time. I will yield 10 minutes to the Senator from Delaware.
Mr. KERRY. Madam President, I ask if the Senator will just yield for
a question.
The PRESIDING OFFICER. Will the Senator yield?
Mr. ROTH. I would like to complete my statement.
As I was saying, fire departments compete with private, for-profit
fire departments such as used by Scottsdale, AZ; public building
inspectors compete with privately contracted building inspection
services such as used by Sunnyvale, CA, during building booms; public
road construction crews compete with private construction contractors,
and even with private toll roads such as is being built in northern
Virginia; public schools and community colleges compete with
proprietary trade schools; public hospitals compete with private
hospitals; city attorneys compete with private, fee-for-service
attorneys such as are used by many towns too small to have a full-time
lawyer on staff; public libraries compete with bookstores and video
rental stores. Many libraries now lend movie videos. Public swimming
pools and golf courses compete with private facilities and country
clubs; municipal revenue collection departments compete with private
collection agencies such as those that will collect on overdue parking
tickets for a percentage of the revenue; city computer operators and
IRM departments compete with private-sector computer service companies,
such as EDS, which will contract to do a city's payroll; and municipal
buildings and ground maintenance crews compete with private-sector
maintenance companies.
In other words, Madam President, it is not just a few selected areas
where government and the private sector render the same or similar
services. Much more than just pollution control and waste disposal is
involved. This amendment would cover virtually every activity of State
and local government.
This is why the distinction between public-sector and private-sector
activities ought to be decided on a case-by-case basis. In fact, the
legislation does acknowledge that there may be occasions when such
issues of competitiveness are of legitimate concern. The bill states
that committee reports shall explain how the matter has been addressed
by the committee. Then Congress can judge how best to deal with that
individual instance where a real problem might exist. Through the use
of the waiver provision of S. 1, we can decide that funding a
particular mandate for the public sector is unfair to the private
sector.
Madam President, I think this is a far, far better way to deal with
this issue, and that is why I strongly urge my colleagues to reject
this amendment. As I stated, its adoption would effectively gut the
bill. The exception would swallow the whole.
Madam President, I yield back the remainder of my time. I yield the
floor.
Mr. GLENN addressed the Chair.
The PRESIDING OFFICER. The Chair recognizes the Senator from Ohio.
Mr. GLENN. Will the Senator from Connecticut yield me 2 minutes off
his time?
The PRESIDING OFFICER. Will the Senator from Connecticut yield to the
Senator from Ohio?
Mr. LIEBERMAN. Madam President, I yield as much time to the Senator
from Ohio as he needs.
Mr. GLENN. I just need a couple of minutes. I want to be added as a
cosponsor on this legislation.
I do not see how the Government can possibly come down on the side of
a government entity that is in competition, in effect, with a private
industry, whether it is waste management, whether it is water
provision, whether it is sewer provision, whether it is--whatever--and
come down and say we will partially federally fund or totally federally
fund whatever the mandate is with regard to the public entity and give
that competitive advantage to the public entity in competition with a
private industry, whether it is electricity or sewer or whatever the
provision might be.
So I think the amendment obviously makes sense to me. I ask to be
made a cosponsor of the amendment and yield the remainder of my time.
The PRESIDING OFFICER. Without objection, it is so ordered.
The Chair recognizes the Senator from Connecticut.
Mr. LIEBERMAN. Madam President, I yield myself as much time as I
need.
I have just a brief statement to thank my friend and colleague and
leader from the Governmental Affairs Committee, the Senator from Ohio,
for his cosponsorship of this amendment. He has been a leader in the
whole crusade to force the Federal Government to confront the costs of
its enactments on State and local governments and on the private
sector.
He is a cosponsor of the underlying bill, S. 1, and so I am
particularly heartened and appreciative that he has agreed to cosponsor
this amendment, which, in my opinion, does not go to the heart of this
measure. It goes to the margins, which is its application and
applicability.
It is a simple amendment which slightly narrows the definition of the
term ``Federal intergovernmental mandate'' so it does not include a
provision ``in any bill, joint resolution, amendment, motion, or
conference report that would apply in the same manner to the
activities, facilities or services of State, local or tribal
governments and the private sector.''
The Senator from Ohio has stated his concern about the unintended
consequence here, that this will put disproportionate burdens on the
private sector in excusing the public sector. Again, I thank him for
his leadership on this issue and for his support.
I hope in the end I can join him in supporting S. 1 by itself. I
yield the floor.
The PRESIDING OFFICER. The Chair recognizes the Senator from Idaho.
Mr. KEMPTHORNE. How much time do we have remaining on our side, Madam
President?
The PRESIDING OFFICER. The Senator has 15 minutes remaining.
Mr. KEMPTHORNE. Madam President, I yield 5 minutes to the Senator
from Georgia.
The PRESIDING OFFICER. The Chair recognizes the Senator from Georgia.
Mr. COVERDELL. Madam President, I thank the distinguished Senator
from Idaho for the opportunity to respond to this amendment by the good
Senator from Connecticut. When the Senator described this as a simple
amendment it took me back to my days in the State legislature. That was
the first signal that you had trouble. In effect, this amendment
renders this legislation that we have been discussing for days upon
days, and was in preparation for almost 2 years, moot. That is the
effect of the simple amendment.
It is simple in the context that it makes this entire effort a moot
effort, because by saying, as this amendment does, it is not an
unfunded mandate if it in any way affects the private sector, it has
the effect, it literally would say, there are no unfunded mandates.
The curiosity about this for me is that this amendment is being
offered in the nature of being a defense for the private sector. I have
always found it curious, when our membership talks about its support of
the private sector, only to find that the private sector itself
expresses itself quite differently. [[Page S1168]]
I have before me a letter dated January 3, 1994, from the National
Federation of Independent Business, who support this legislation
without this amendment.
I ask unanimous consent it be printed in the Record.
There being no objection, the letter was ordered to be printed in the
Record, as follows:
National Federation of
Independent Business,
January 3, 1994,
Hon. Paul Coverdell,
U.S. Senate, Washington, DC
Dear Paul: On behalf of the over 600,000 members of the
National Federation of Independent Business, I urge you to
vote in favor of S. 1, the unfunded mandates legislation,
when it is considered by the Senate in January.
Unfunded federal mandates on the states and local
governments end up requiring these entities to raise taxes,
establish user fees, or cut back services to balance their
budgets. Small business owners are affected by all of these
actions.
Between 1981 and 1990, Congress enacted 27 major statutes
that imposed new regulations on states and localities or
significantly expanded existing programs. This compares to 22
such statutes enacted in the 1970s, 12 in the 1960s, 0 in the
1950s and 1940s, and only two in the 1930s. The Congressional
Budget Office estimates that the cumulative cost of new
regulations imposed on state and local governments between
1983 and 1990 was between $8.9 billion and $12.7 billion.
These include environmental requirements, voters registration
requirements, Medicaid, and others.
It was not the states and cities who paid roughly $10
billion in unfunded mandates during the 1980s; it was
taxpayers--small business owners as well as everyone else. In
June 1994, a poll of all NFIB members resulted in a
resounding 90% vote against unfunded mandates.
I urge you to strongly support S. 1.
Sincerely,
John J. Motley III,
Vice President,
Federal Governmental Relations.
Mr. COVERDELL. I also have a letter before me from the National
American Wholesale Grocers Association, a group with a very large
membership across the country, who support the legislation without the
amendment.
I am not going to enter all of these into the Record.
We have a letter in our hands from the U.S. Chamber of Commerce which
represents hundreds of thousands of businesses across the country in
support of the legislation without the amendment. And the list goes on
and on and on of people who actually are out there meeting a payroll,
running a business, who have supported the legislation managing
unfunded mandates as offered by the Senator from Idaho.
Why the incongruity? Why would we have people here on the Senate
floor who are suggesting that we have to have an amendment such as this
to protect the private sector and yet we have this outcry from the
private sector saying pass the bill as it is?
The answer is very simple. The private sector is already paying the
effects of unfunded mandates. If you own a piece of property in any
city, county, or other jurisdiction across this land of ours, about a
third--depending on the type of jurisdiction--about a third of that
property tax bill that you are paying every year is directly related to
Federal orders--mandates--with no check to pay for them.
I spoke about the motor-voter bill the other morning, which cost my
State $6.6 million in the first year and then $2 to $3 million
thereafter. That is Federal folly. It is totally unnecessary in my
State. Registration was being handled very adequately.
So we have a policy wonk in Washington trying to establish what the
policy on a very local question ought to be and ordering that it be the
way we think it ought to be in Washington and then sending the bill to
the local government. That local government bill goes right down,
ultimately, to an impact on property taxes. And that is why we have
these letters from the U.S. Chamber of Commerce. That is why we have
the letters from the National Federation of Independent Business, and
Grocers, et cetera, et cetera. Because they are bearing the burden.
Governments do not pay taxes. People and businesses and families and
corporations, they pay taxes. They are the direct recipients of the
burden of the last 10 to 15 years of unfettered orders from the Federal
Government without any payment to cover it.
Madam President, I will just say one more thing and I will yield my
time back to the Senator from Idaho. In the final analysis, the other
aspect of the legislation that is very important to note is that, if
the impact is greater than $200 million on the private sector, CBO is
required to publish that knowledge and we in the Senate would have the
opportunity to understand the impact and by a majority vote, if the
consequences create a massive destabilization of fair competition
across our country, we have the prerogative--and for the first time, I
might add, the knowledge--to understand what we are doing and can act
accordingly.
This amendment makes the measure moot. The private sector does not
concur with the suggestions that they need this type of protection.
They are for the measure without the amendment. And the reason is
because they pay for the unfunded mandates in the end.
I think it is time we moved on and got to this final measure and gave
America and all America's mayors and county commissioners and school
superintendents what they have been asking for for nearly 2 years.
I yield the remainder of my time back to the Senator from Idaho.
Several Senators addressed the Chair.
The PRESIDING OFFICER. The Chair recognizes the Senator from Idaho.
Mr. KEMPTHORNE. I thank very much the distinguished Senator from
Georgia, and I reserve the remainder of my time.
The PRESIDING OFFICER. The Chair recognizes the Senator from
Connecticut.
Mr. LIEBERMAN. Madam President, I will yield in a moment to my
colleague from North Dakota, but I want to say in response, on my own
time, to one of the statements made by the Senator from Georgia, that
the reference to the Motor-Voter Act is in point. I want to reassure
him that under this amendment, the motor-voter law would still have to
pass the two hurdles, be subject to the two points of order, and could
be suspended in its impact if the Federal Government did not pay the
costs of the State's implementing it because it is a unique
governmental function.
The State and local governments, in implementing the Motor-Voter Act
are not competing with any private sector businesses. This is a
delegation of responsibility that we put on the States uniquely unless,
under the terms of the bill which are generally part of S. 1, there was
an estimate that it would not cost $50 million in any given year of its
implementation.
So the example is a good one to indicate exactly how S. 1, if our
amendment were adopted, would impact mandates, mandates uniquely on
State and local governments such as motor voter or the large most
costly mandates that I indicated earlier, and referenced specifically
earlier, would still be faced with the two hurdles. That is quite
different from mandates, such as the Safe Drinking Water Act, which are
aimed at solving a national problem, guaranteeing people pure drinking
water regardless of whether they get it from public or private sources.
Madam President, I yield now 5 minutes to my friend and colleague
from North Dakota [Mr. Dorgan].
The PRESIDING OFFICER. The Chair recognizes the Senator from North
Dakota.
Mr. DORGAN. Madam President, thank you very much. I thank my friend
from Connecticut.
The issue of the private sector is one I am well familiar with.
Senator Domenici and I offered the legislation last year that became
the basis for the language in last year's bill and also became the
basis for the language in this year's bill on the private sector. We
are the ones that indicated that we wanted the private sector included.
If there is an aggregate cost exceeding $200 million that is going to
be imposed on the private sector as a result of a mandate, my own view
was God bless the mayors and the Governors. They certainly have
legitimate complaints about mandates. But what about the mom and pop
business on Main Street? What about the private sector folks trying to
make a living? What about the mandates we impose on them? Why should
not there be a comparable requirement with respect to the private
sector? [[Page S1169]]
I am pleased to say with the cooperation of the Senator from Idaho
and active work on behalf of a lot of folks here that that was
included. And that makes this bill a better bill. We are not just
concerned about State and local governments. We are concerned about
them and addressing their interests. But we are also concerned about
the businessman and the businesswoman all across this country on Main
Street who also have to respond to mandates.
There is only a point of order here, not funding with respect to the
private sector, but a point of order that exists. We are debating a law
today or proposed law. One of the interesting laws in Congress is a law
of unintended consequences. It springs up between every desk and in
every crevice and every day in every way, the law of unintended
consequences.
I will tell you what you will hear about this law if you do not pass
this amendment. You will hear about that law immediately if this
amendment does not pass. The first time that you have a State or local
government engaged in an enterprise in which the private sector is
engaged in the same enterprise and a mandate is moving through the
Congress, what you have is a circumstance where the Congress will pay
for the cost of complying for the mandate for the local level of
government and the private sector competitor out there has said you
have the same mandate but which we are sorry, partner, you are on your
own. You have created a competitive unfairness by definition, end of
argument. You have created unfair competition.
I heard the last speaker talk about the surprise about the private
sector. There is nothing about the intent of this amendment that in any
way erodes or undermines the provisions in this bill that address the
private sector. I know because I helped write it. Nothing that is
proposed by my friends with this amendment would undermine those
provisions of the law.
The only thing they have tried to do is say where you set up
conditions in which you will have competitors as between levels of
government and the private sector, we shall not have circumstances in
which a point of order will lie if you do not fund it for the
government but ignore the private sector. That is all the Senator from
Connecticut is trying to do, and it is why I am pleased to cosponsor it
and pleased to support it.
It makes eminent good sense. I hope after it is thought through and
discussed some that the other side of the aisle would decide to accept
it. Those who say the private sector does not want this, I will
guarantee you this. Anybody in the private sector who is going to be
set up for an unfair situation is going to want this as soon as they
understand that they cannot compete in that circumstance.
So let me just again end where I started. This bill includes the
private sector in a significant and important way. I support that, and
I helped write it. I helped make sure it was here.
This amendment does nothing to undermine or erode what we are trying
to do for the private sector. In fact, this amendment comes to that
part of the private sector that will otherwise have in my judgment a
circumstance of terrible unfairness imposed upon it and says we do not
want that law of unintended consequences to come from this piece of
legislation.
If we do not include this, I guarantee you we will discuss this again
on the floor of the Senate. I guarantee you that those who discuss it
will not be able to stand up and defend the circumstance that brings it
to our attention the next time.
Madam President, I yield the floor.
Mr. LIEBERMAN. Madam President, I thank my friend and colleague from
North Dakota. His advocacy for small business, for small farmers, and
for common sense is well known and respected in this Chamber. He did in
fact help write the bill, in fact strongly supports the underlying
purpose of the bill, but also supports the amendment which gives me
great confidence to go forward. I thank him for his very eloquent
words.
Madam President, I ask unanimous consent that the Senator from
Nebraska [Mr. Kerrey] be added as cosponsor of the amendment.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. LIEBERMAN. Madam President, I would at this point yield up to 10
minutes of my time to the Senator from New Jersey [Mr. Lautenberg].
The PRESIDING OFFICER. The Chair recognizes the Senator from New
Jersey.
Mr. LAUTENBERG. I thank the President and the distinguished Senator
from Connecticut.
I want to take this opportunity to talk on behalf of the support for
this amendment offered by the distinguished Senator from Connecticut,
Senator Lieberman, which will exempt from S. 1 all legislation that
affects the private and public sectors.
Equally knowing that this amendment is recommended and authored by
the Senator from Connecticut comes as no surprise. He is thoughtful. He
recognizes from his own experience on the Environment and Public Works
Committee, and the things that we have attempted to do for some time
now, the need to go to the private sector wherever possible to get the
job done, whatever that may be, most efficiently.
So I think this is an appropriate amendment. I am not sure where the
controversy lies between the two parties because this amendment by any
count really makes sense and it is consistent with the review over the
last couple of years, the last several years, to turn, as I said
before, to the private sector whenever we can do so.
Just last week, we passed the congressional coverage bill because we
said that Congress should be subject to the same laws as everyone else.
It would be absurd if only a week later we passed legislation which
exempted State and local governments from the laws which applied to the
private sector. But that is exactly what S. 1 as currently written
does.
Under this legislation, the presumption is that States and local
governments will be exempt from requirements that apply to the private
sector unless the Federal Government foots the bill for compliance.
At the same time firms operating in the private sector--and there is
example after example--I mean private water treatment facilities versus
public water treatment facilities, sewage facilities, privately and
publicly, but firms operating in the private sector would have to
comply with these requirements, with these standards that are set by
perhaps the Federal or the State government even though no one would be
helping them to pay the costs of compliance, setting a competitive
condition that is contrary to the mission that all of us have these
days--that is, to get the job done in the best way possible for the
least cost, in the most efficient manner. This is not just a
theoretical inequity, it can have real and serious consequences. For
example, in many jurisdictions, waste treatment facilities, as I said,
are operated by government entities as well as private firms, each with
the same obligation.
Under S. 1, the State-owned facility would not have to comply with
any new laws designed to reduce pollution, unless the Federal
Government pays the cost.
The private-sector competitor, however, would not have any choice.
They would have to comply, and they would have to pay.
Consider the case of a research facility in a State university and a
private-sector firm conducting similar research. S. 1, as currently
drafted, institutionalizes a competitive advantage for the State-run
facility and punishes the private-sector enterprise. That is not, I am
sure, what the authors intended. But it is the result.
Madam President, many of those who support this legislation recognize
the problem and want to fix it. Indeed, earlier in our consideration of
this bill, an amendment was adopted which will require committees to
consider the disparate impact of mandates and mandate relief on public
and private concerns. But while recognizing the problem, that language
does nothing to correct it. It does not provide the kind of assurance
or consistency which is needed to deal with the problem.
The amendment of Senator Lieberman, however, addresses the problem we
all seem to recognize in a meaningful way. Under the amendment of the
Senator from Connecticut, State and local officials would have to
follow the same Federal laws as everyone else. Our workers and our
environment [[Page S1170]] would be protected similarly, and private
businesses would have a level playing field.
So I believe this amendment is essential to a fair and equitable
unfunded mandates bill, and I strongly urge my colleagues to support
it.
I yield the floor.
Mr. KEMPTHORNE. Madam President, I yield 4 minutes to the Senator
from Missouri.
The PRESIDING OFFICER. The Senator from Missouri [Mr. Bond] is
recognized.
Mr. BOND. Madam President, I thank the manager of the bill. I rise as
a very strong supporter of S. 1, the unfunded mandates bill.
I came to this body having served 8 years as Governor of Missouri,
and I found that State government budgets were devastated by the costs
of Federal mandates. I also know that they have been devastating in
their impact on local governments. Kansas City, MO, finds the one-time
cost to the city of implementing all the federally mandated
environmental regulations in 1993 was some $56.2 million. Local
governments are seeing their budgets robbed by Federal mandates. State
governments find that they cannot utilize the tax dollars they want to,
as they believe their voters and constituents want to, because they are
preempted by the Federal Government.
I believe this is a good measure. I took a look at this amendment
that has been crafted by my good friend from Connecticut. I read it,
and it is absolutely stunning in its simplicity. It says that Federal
or governmental mandates does not include any provision in any bill
that would apply in the same manner to activities, facilities, or
services of State and local or tribal governments and the private
sector.
Madam President, that wipes out a tremendous sector of where the
Federal mandates hit the State and local governments. That is not just
a loophole big enough to drive a truck through, that is a loophole big
enough to push this whole Capitol through.
Motor-voter, as mentioned by my colleague from Connecticut, may be
one of the few areas that would not be exempted. But all of the other
laws that impose the burdens on State and local governments would be
wiped out. Is this an automatic requirement that we fund State
governments and local governments in competition with the private
sector? No. It simply says that you have to consider that; you can
waive that. There is no requirement that we cannot change by a majority
vote--and that will be brought to the attention of this body--if there
is an impact on governmental and private-sector entities.
I have been made almost breathless by the statements of concern for
the private sector from some sectors where I have not traditionally
heard that support. I hope that those same people will support us in
privatization efforts.
Frankly, what we are talking about here is an exemption that is so
broad that it will make the basic provisions of S. 1 not applicable in
most of the expensive areas where State and local governments are
significantly oppressed by Federal Government mandates.
I urge my colleagues to reject this amendment. This bill is vitally
needed. Governors, mayors, legislators, Republican and Democrat, across
this country, particularly in my State, know that we need S. 1. They
cannot afford to have S. 1 with this kind of loophole put in it.
I urge my colleagues to reject the amendment.
I reserve the remainder of my time.
Mr. KEMPTHORNE. Madam President, I thank the Senator from Missouri so
much for his perspective as a former Governor and for expressing the
importance of this legislation.
I reserve the remainder of my time.
Mr. LEVIN addressed the Chair.
The PRESIDING OFFICER. The Senator from Michigan [Mr. Levin] is
recognized.
Mr. LEVIN. Madam President, before I get to the amendment pending
before us, I would like to use part of the time that has been allocated
to me under this unanimous-consent agreement to pick up kind of where I
left off the other day, about the bill itself.
I think, like most of us, that we must address the problem of
unfunded mandates. I was a cosponsor of last year's bill. I am a former
local official. I understand the impact of a mandate when Washington
imposes it on us at a local level. By the way, private business persons
understand those impacts, too. So we have to understand that it is not
just local and State governments that are concerned with mandates
imposed by us. The private sector is concerned with mandates imposed by
us, as well. This bill treats them differently.
Sometimes the private sector and public sector are in direct
competition; yet, they are treated differently in this bill. I am going
to get to that in a minute when we talk about the amendment of the
Senator from Connecticut.
I want to talk about, first, some of the problems that I see in the
bill itself. First of all, it has been suggested that because
amendments are being offered--there are many amendments that are going
to be offered, and there are many that are needed, and some of them
have already passed--that, therefore, people are filibustering this
bill.
I have seen some pretty strange things in this Senate, but I have not
seen many people filibuster their own bills. The Senator from Ohio, who
is the ranking member of the Governmental Affairs Committee, is the
prime cosponsor of S. 1. He was the principal sponsor last year of the
bill that came to the floor. He believes vehemently in what is in this
bill. He also, very strongly, opposed cloture--Senator Glenn did--
because it would have immediately wiped out a whole host of relevant
amendments--I emphasize ``relevant amendments,'' relevant to this bill.
They were not technically germane for postcloture purposes, but they
were very relevant to the bill, including a substitute which he is
considering offering which is closer to last year's bill.
Are we serious that we want to prevent the ranking member of the
Governmental Affairs Committee from offering a substitute bill similar
to the one he sponsored last year? Is that a fair treatment of minority
rights, to tell the former chairman, whose bill this was last year,
that now as ranking member he will be preempted because of a technical
postcloture rule from offering a substitute to this bill, should he so
choose? I think the answer is no.
Therefore, when the Senator from Ohio and the Senator from Nebraska,
who is also a cosponsor of S. 1, who is the ranking member of the
Budget Committee, vote against cloture so that Members can continue to
offer relevant amendments, the suggestion that they are, therefore,
participating in a filibuster means they are filibustering their own
bill--a bill that their name is on. When you look at the sponsors of S.
1, the third name on that sponsorship list is the Senator from Ohio.
The sixth name is the Senator from Nebraska, Senator Exon, and so
forth. This bill is different from last year's bill in some very
significant ways.
Again, I cosponsored last year's bill. I would like to vote for this
bill. I hope to be able to do it. But I am determined, and others are,
too, that we are going to take the time to analyze some very, very
significant provisions that will change the way we function on the
floor here when amendments are offered, when bills are brought up.
There is a new point of order in this year's bill, a very significant
point of order, which was not in last year's bill which can be raised
on any bill that does not fund that mandate for State and local
governments under certain circumstances.
Now what has been the delay? Well, a couple of the days that have
been used here were simply used to extract committee reports. On both
committees, both Budget and Governmental Affairs, we made an effort to
obtain committee reports. The effort was rejected on a party-line vote.
Now why--when you have a bill that is introduced on a Wednesday
night, that goes to a hearing the next morning, that is supposed to be
marked up the next day, that is very different from last year's bill--
we are not given a committee report without being put through the
process that we had to go through here this week to get committee
reports, I do not know. But we were put through that process in both
committees.
There was an amendment offered. Senator Pryor, in Governmental
Affairs, asked for a committee report so that Members of this body
could study these provisions. They are very, very
[[Page S1171]] significant provisions. Senator Pryor's motion in
Governmental Affairs was tabled on a party-line vote. A similar thing
happened in the Budget Committee. And so the effort was made then on
the floor, finally successfully, to get committee reports. That took 2
days.
Now, in committee, I offered an amendment which said that if the
Congressional Budget Office cannot make an estimate of the cost of an
intergovernmental mandate, that it should be able to say so, just the
way the bill allowed a mandate in the private sector to be so regarded
by CBO. If the Congressional Budget Office is unable to say what the
costs of a mandate on the private sector are, under this bill, it was
allowed to say so. But purposefully, explicitly, the bill did not allow
the Congressional Budget Office to say that it could not estimate the
cost of an intergovernmental mandate.
And let us be real clear: It is that estimate that is so critical. It
triggers all kinds of activities. It requires appropriations to be in
the amount of the estimate. So that estimate is the critical triggering
device in this bill.
In last year's bill, if there were not an estimate, it would be
subject to a point of order. And that was fine. This year's bill goes
way beyond that, because it creates a point of order if we do not
either appropriate directly the money to equal the estimate or unless
we do some other things to make sure that downstream there is an
appropriation for that estimate. So that estimate becomes absolutely
critical.
But what happens if the CBO cannot make the estimate? I offered an
amendment in the committee saying they ought to be able to say so. If
it is absolutely impossible to make an estimate--for instance, if the
amount of the mandate is going to depend upon the action of an agency
which has not been taken, if it depends upon the content of a
regulation that has not been written, then it may be impossible to say
so. Let them be honest. That amendment was rejected in committee on a
party-line vote.
Now, why have we used so much time in the last few days? For many
reasons. One of them is I spent 3 hours here the other day debating
that issue as to whether or not the CBO ought to be able to state that.
And finally, today, we adopted the amendment which was rejected in
committee. Was that useful? You ``betcha.'' It is going to make a big
difference when this bill becomes law--and I have no doubt that this
bill will become law--it is going to make a major difference as to how
the Congress operates. Because there will be times, we have been told
by the CBO, when they will not be able to estimate how much an
intergovernmental mandate costs.
There have been other reasons we have used up some time. We had an
amendment by the Senator from Washington on the Republican side,
totally nongermane, totally nonrelevant to this bill. It took us hours
yesterday, hour after hour after hour, on a totally nonrelevant,
nongermane amendment having to do with education standards.
There are a lot of problems with this bill and they need to be
addressed. This bill says that certain civil rights laws that protect
people against discrimination based on race, religion, gender, ethnic
origin, or disability are not the subject of this bill; that States and
local governments are going to have to comply with those without any
mandate protection in this bill.
Well, they left out a few things, including age. Do we want to
protect people from age discrimination the way we do from race
discrimination? I think so. Do we want to correct that? I hope so. And
I will offer an amendment later on to correct it.
Is that dilatory? Is it dilatory to suggest that, since every
amendment that any Member of this body might offer is subject to a
point of order unless it contains a certain estimate as to how much it
might cost State and local governments, every one of us is going to be
subject to this point of order when we offer an amendment? And I think
most of us probably say, that is right. Many think it should apply to
amendments. But that is not my argument here.
The bill says that the point of order applies to amendments. An
amendment which we offer must have that estimate of the cost to State
and local governments or it is subject to a point of order. Can we get
the estimate as individual Senators? Do I have a right to it? My
amendment is going to be subject to a point of order if I do not have
it.
Well, the bill says only the committee chair and the ranking member
can ask for the estimate. That is what the bill says. Is my legislative
life then going to be put in the hands of the committee chair and
ranking member? Maybe they disagree with my amendment.
I am going to be offering an amendment which says any individual
Member has a right to ask for the estimate, which is so crucial if that
person's amendment is not going to be subject to a point of order. That
just seems to me to be fundamentally fair and required and protects all
of us.
This has nothing to do with private and public and whether we should
have an estimate and all of that. This just goes to a basic right of a
Member to obtain the estimate, which is absolutely essential under this
bill to avoid a point of order on his or her amendment.
Now, is that germane after cloture?
We have been told it is probably not germane. Is that dilatory? Is
it, in any fair sense of the word, dilatory for Members to clarify that
issue by an amendment? It is surely relevant. I am confident that the
Parliamentarian would rule it is relevant. But it is not germane,
technically not germane, because postcloture is a very, very tight
definition of germaneness.
Do we want to clarify it? Is it worth taking a few days? This bill
will not be effective by its own terms until next January. Now, maybe
some people will suggest that does not mean we should not use all the
time between now and next January debating that bill. I could not agree
more.
I can see my friend from Mississippi, the wheels in his head moving
around. I beat him to it. I hate to take away a good response. So be
it. Is it worth taking a few days, a few weeks, if necessary, to answer
these amendments? These are relevant amendments. They affect each one
of us. I think it is.
Now, getting to the amendment of the Senator from Connecticut.
Mr. LOTT. Will the Senator yield?
Mr. LEVIN. I am happy to yield.
Mr. LOTT. The Senator was kind enough to mention my name and is
fixing to get to the important discussion of the amendment. The Senator
is absolutely right, even though we take a little time, it will not go
into effect until January.
I want to make this point. I am pleased that we are now getting to
some substantive amendments. This one clearly needs to be thought about
and debated as it is being debated. I presume there are a few more. I
think that the work that has been done by the distinguished floor
managers on this bill last year and this year, a lot of good work has
already been done. Surely there are a few good amendments. We should
get to them.
Nobody here believes that there are 78 on your side or 30 on our
side. Let Members get this list dwindled down to the amendments that
really are relevant. Let Members talk about those. I suspect that some
of them will be accepted, and we will get the job done and move on.
Certainly there is not a railroad involved here. We are taking lots
of time on this legislation. I do think that the leader is right to
expect that after 5 days we get down at least to the relevant or
germane amendments. We are about to get there.
Here is my question to the Senator, if he would yield for the
question. The Senator was talking about when would this be used. It
seems to me that there would not be a whole lot of amendments that this
might apply to. We are talking about a relatively small number, the
dollar amount that is involved here. Is it not true that you probably
would not have this applying that often? I am asking from genuine
curiosity. How much are we talking about that would really kick in, $50
million?
Mr. LEVIN. There are 800-some bills, which estimates were able to be
made on the bills as I understand it in the last 12 years. That is
where estimates could be made. And a whole bunch that could not be
made. I do not think that the current law which requires that an
estimate be made, some act as though there has not been a law on the
books [[Page S1172]] that requires these estimates of intergovernmental
mandates to be made. There has been a law on the books.
I am not sure many of us have read those estimates they have made,
but nonetheless to answer the Senator's question directly, I do not
believe it is applied to amendments. So, we are skating out on a new
pond. The language applies this now to amendments, the point of order
to amendments relative to intergovernmental mandates. When I say ``the
law'' I am talking about estimating the amount of the intergovernmental
mandate, the mandate on State and local government.
To try to directly address my friend's question, we do not know
whether or not that threshold of $50 million per year some year down
the road--could be 10 years down the road--is reached until we ask for
the estimate. So how many amendments will, in fact, be calculated or
estimated to include an intergovernmental mandate of more than $50
million in any one of 5 fiscal years after it becomes effective? There
are an awful lot of squishy words in there, by the way, but how many of
them? What percentage of our amendments? I do not know. I just cannot
answer.
Mr. LOTT. Mr. President, let me conclude, because I know the Senator
wants to make some other points. Perhaps the Senator would want to
respond to this.
I have found the people out across the country, certainly my State,
are astounded when they find out that in fact we do not know the cost
estimates of amendments that we are offering on the floor. They are
shocked. We wander in here and say, hey, here is my amendment. It might
cost $10 million, or $50 million, or $200 million, and they say, ``you
mean, you don't know?'' Do you not think the people would want Members
to know the consequences of our amendments on the floor? I think that
is what this bill does. Which I believe the Senator supports.
Mr. LEVIN. I do. I agree with that. The problem is not the
requirement that there be an estimate. That is not the problem.
Mr. LOTT. Without an estimate, how do we know?
Mr. LEVIN. The Senator asked me what percentage, and I am saying how
do we know without an estimate. So I could not answer your question as
to what the percentage is without these estimates being made. They have
not been made yet on amendments. So, we will find out.
I agree, we should know the consequences of our acts. We should know
the impacts on local and State governments. I used to be that local
official 8 years. I came to this town because I did not like what the
Federal Government was doing to me and my town--not me personally but
my town--including mandates, including the way they operated programs.
Believe it or not, that was a big part of my first campaign. As a local
official I understood that. And I still believe it. And we should know
the consequences of our acts.
Now, this amendment that is pending before the Senate is saying there
are some areas where we sure should equally know the consequences on
the private sector, and equally treat the private sector. There are
areas where the private sector and the public sector are in direct
competition. You have a hospital, one is a publicly owned hospital,
say, university hospital, the other one is a private hospital. They are
in competition. You can take two incinerators or two anything. Now,
assume that in our wisdom or lack of wisdom--there will be a debate
over that--there is an increase in the minimum wage. I do not want to
debate the wisdom of the increase in the minimum wage, but assume there
is an increase in the minimum wage. Do we really want to create a
presumption that the private hospital is not going to have to pay that
minimum wage increase but--excuse me, let me reverse it. Do we want to
create the presumption that the private hospital is going to have to
pay the increase in the minimum wage but that the public hospital is
going to be off the hook unless we pay their increase in the minimum
wage? Do we want to create that presumption?
Now, I had an amendment in committee which said, no, we will not do
that when it comes to those employment laws like minimum wage and
family and medical leave. We should not create that presumption. The
amendment before that is a broader amendment, addressing the same
point.
Take the two incinerators.
Mr. KEMPTHORNE. Would the Senator yield?
Mr. LEVIN. I am happy to.
Mr. KEMPTHORNE. Mr. President, just in response to that, this concept
of having a public hospital, the private hospital, are we going to
presume that we would then proceed and only pay for a minimum wage
increase on the private hospital?
Mr. LEVIN. Mr. President, the bill does not presume that we will pay
for the increase on the private hospital. It does create a presumption
that we will for the public hospital. Of course it can be waived by 50
votes. There is a presumption in the bill.
Mr. KEMPTHORNE. That is the point, Senator, that is the point. If
that scenario were to unfold, No. 1, would it not be very healthy for
the Senate to have the information as to what is the cost of that
mandate?
Mr. LEVIN. So far we are together.
Mr. KEMPTHORNE. In minimum wage.
Mr. LEVIN. Together so far.
Mr. KEMPTHORNE. Ask to have a CBO analysis on the cost and on the
private sector.
Mr. LEVIN. We are together.
Mr. KEMPTHORNE. What sort of cost is it to the private sector?
Mr. LEVIN. We are together.
Mr. KEMPTHORNE. What sort of adverse impact might that have on
competition between the public and private sector?
Mr. LEVIN. So far so good. Keep going.
Mr. KEMPTHORNE. Then we are together.
Mr. LEVIN. Mr. President, no, no. Excuse me, I will reclaim my right
to the floor and then I will be happy to yield.
This bill goes one step beyond that and creates the presumption that
we are going to either pay for that increase for the public hospital or
waive it. It does not do that for the private hospital.
So, we go right down the road together, arm in arm as last year's
bill did, which the Senator from Ohio is the prime sponsor of.
This year we go one step further. This year we create the
presumption, and it is pretty embedded in there, that we will pay. We
are implying to people, we are sending out the message, we are creating
an assumption that we will either pay that increase for the public
hospital or waive it.
That is where we have problems.
(Mr. COVERDELL assumed the chair.)
Mr. KEMPTHORNE. Will the Senator yield?
Mr. LEVIN. I will be happy to yield.
Mr. KEMPTHORNE. I certainly will respect your time. But, Mr.
President, that is the point. There is all of this emphasis, all of
this discussion on a point of order. At any point--at any point--you
may seek a waiver of that point of order. In all likelihood, if you are
going to have an increase in the minimum wage, we all know that will
require a majority vote in the Senate. It may be the same majority that
would also vote to waive that. The point of order also is not self-
executing. Somebody has to raise that point of order.
Mr. LEVIN. One Senator.
Mr. KEMPTHORNE. One Senator has to raise that point of order.
Mr. LEVIN. Correct. Is there any doubt in your mind one Senator will
raise any point of order? There is not 1 out of 100 Senators who
opposes--by the way, the Senator from Idaho is a cosponsor of last
year's bill.
Mr. KEMPTHORNE. Yes.
Mr. LEVIN. Which does not go as far as this year's bill does and
create this presumption that we are going to treat the public sector
different when it comes to funding this mandate than we will the
private sector. It is not as though last year's bill was a weak bill. I
do not think my friend from Idaho would have cosponsored a weak bill.
Last year's bill was a strong bill, which went right down the road,
step by step--and you outlined those steps. I agree with each of those
steps.
This year's bill adds that additional point of order, and it is there
that it creates a competitive disadvantage, in many cases, to firms
that are competing with each other. And that is where the amendment of
the Senator from [[Page S1173]] Connecticut will allow us to say that
if it applies to both, to both incinerators, public and private, that
we should then deal with them in the same way.
I wonder if I could ask of the Chair how much time I have left.
The PRESIDING OFFICER. The Senator has 5 minutes remaining of his
time.
Mr. LEVIN. I thank the Chair.
I just want to read from some letters from the private sector, from
some parts of the private sector.
This is a letter from the Environmental Industry Associations. There
are three associations that are part of a larger umbrella group. I
understand this has about 2,000 total members. This includes the
National Solid Waste Management Association, the Hazardous Waste
Management Association, and the Waste Equipment Technology Association.
We all understand that the private sector is divided on this bill, that
there are parts of the private sector--for instance, I understand the
Chamber supports the bill--but there are parts of the private sector
that are the most likely ones to be directly impacted that have a lot
of problems with this bill.
I want to read from just one portion of the private sector. Again,
this is three different subassociations that are represented here,
about 2,000 members:
Notwithstanding provisions in the bill for parity of
treatment between the public and private sectors for purpose
of analysis--
And this is what my friend from Idaho was talking about, for purpose
of analysis.
there seems to be an inconsistency in actual treatment
between the two sectors because the legislation subject to
the point of order vote applies only to Federal
intergovernment mandates and not private sector mandates. We
respectfully restate our basic concern that to exclude State
and local government--but not the private sector--from the
costs of compliance with unfunded mandates in conjunction
with providing goods and services where both sectors compete
would be both unfair and unfaithful to the core principles of
the Job Creation and Wage Enhancement Act, of which S. 1 is
the first piece.
So there is a significant portion of the private sector that very
much is troubled by this.
I ask unanimous consent that the letter from those three associations
that make up the Environmental Industry Associations be printed in the
Record.
There being no objection, the letter was ordered to be printed in the
Record, as follows:
Environmental Industry Associations,
Re: S. 1, Unfunded Mandate Reform Act of 1995.
January 9, 1995.
Hon. Dirk Kempthorne,
U.S. Senate, Washington, DC.
Dear Senator Kempthorne: I recently wrote you, December 22,
1994, on behalf of the Environmental Industry Associations
(EIA) to provide you our viewpoint on the important matter of
unfunded federal mandates. Now that we and other stakeholders
in this debate have had the benefit of a Joint Committee
hearing on this initiative, I want to provide you with
additional comments as your bill goes to markup and an early
floor vote.
We are pleased that the bill requires that the
Congressional Budget Office (CBO) provide legislative
authorizing committees and agencies anticipating rule
promulgation detailed economic and competitive impact
analysis on both intergovernmental and private sector
mandates. Clearly, this is a major improvement to promote
more informed and deliberate decisions by Congress on the
appropriateness of federal mandates in a given instance. We
are especially pleased that the accompanying CBO Report on
federal mandates must include a statement of the degree to
which the mandate affects both the public and private sectors
and the extent to which federal payment of public sector
costs would affect the competitive balance between State,
local, or private government and privately-owned
businesses.'' (Committee Print, page 14, line 3-9). Again, we
voice our strong support for this centrist approach.
Notwithstanding provisions in the bill for parity of
treatment between the public and private sectors for purpose
of analysis, there seems to be an inconsistency in actual
treatment between the two sectors because the legislation
subject to the point of order vote applies only to federal
intergovernment mandates and not private sector mandates. We
respectfully restate our basic concern that to exclude state
and local government--but not the private sector--from the
costs of compliance with unfunded mandates in conjunction
with providing goods and services where both sectors compete
would be both unfair and unfaithful to the core principles of
the Job Creation and Wage Enhancement Act, of which S. 1 is
the first piece.
To ensure that there is a level playing field between the
public and private sectors, we suggest that the term `Federal
intergovernmental mandate' beginning on Committee Print, page
4, line 22, be amended by including a new paragraph ``(C)''
following line 14, pages 6, that would read as follows:
(C) The term `Federal intergovernmental mandate' shall not
include any mandate to the extent it affects the commercial
activities (including the provision of electric energy, gas,
water or solid waste management and disposal services) of any
state, local or tribal government.
We look forward to working with you in the months ahead by
providing the views of our members on legislative initiatives
in which they have an interest.
Sincerely,
Allen R. Frischkorn, Jr.,
President and CEO.
Mr. LEVIN. Mr. President, let me read a letter from Consumers Power
Co. This is a major energy supplier in my home State of Michigan. This
is dated January 11:
The Unfunded Mandate Reform Act of 1995 is intended to
relieve State and local governments of unfunded Federal
mandates. While we support the intent of the bill, Consumers
Power Company has some concerns over the impact the bill
would have on investor owned electric utilities and its
customers. We believe it will have the effect of placing
certain private companies at a competitive disadvantage with
local governments when they provide identical services.
Consider, for example, that the private sector would be
required to comply with Federal environmental mandates at
costs creating intolerable competitive disadvantages, while
the public sector would be excused from compliance because
funding is not provided by the Federal Government. Compliance
with Clean Air Act Amendments of 2001, should they pass,
would be such a case. Should municipal utilities be exempt
from NOx reduction requirements because the Federal
Government does not pay for implementation?
I ask unanimous consent that the entire letter be printed in the
Record.
There being no objection, the letter was ordered to be printed in the
Record, as follows:
Consumers Power,
Washington, DC, January 11, 1995.
Hon. Carl Levin,
Russell Senate Office Building, U.S. Senate, Washington, DC.
Dear Senator Levin: The Unfunded Mandate Reform Act of 1995
(S. 1) is intended to relieve state and local governments of
unfunded federal mandates. While we support the intent of the
bill, Consumers Power Company has some concerns over the
impact the bill would have on investor owned electric
utilities and its customers. We believe it will have the
effect of placing certain private companies at a competitive
disadvantage with local governments when they provide
identical services.
Consider, for example, that the private sector would be
required to comply with federal environmental mandates at
costs creating intolerable competitive disadvantages, while
the public sector would be excused from compliance because
funding is not provided by the federal government. Compliance
with Clean Air Act Amendments of 2001, should they pass would
be such a case. Should municipal utilities be exempt from
NOx reduction requirements because the federal
government does not pay for implementation?
Senator Thad Cochran intends to introduce an amendment, as
early as today, which would correct this unintended
competitive disadvantage. We urge your support for the
Cochran amendment which explicitly assures that where state
and local governments engage in commercial activities, they
must meet the same requirements as private firms offering the
same product or service.
Attached for your review and consideration is the draft
amendment language. Please call me or Mary Jo Kripowicz of my
Washington staff should you wish to discuss this issue
further.
Sincerely,
H.B.W. Schroeder.
Mr. LEVIN. So, Mr. President, a number of these amendments raise very
important points. I, too, am glad that we finally have gotten to these
kinds of amendments, and there will be a number of other amendments
that are offered. But this is one of the most significant amendments
for us to consider and worry about. However we vote on this amendment,
I think each of us ought to be concerned about the possible competitive
disadvantage that this bill is likely to place the private sector
companies in that compete with the public sector.
I want to commend my friend from Connecticut for his tremendous work
in this area and his concern for the private sector. I yield the floor.
The PRESIDING OFFICER. The Chair recognizes the Senator from Idaho.
Mr. KEMPTHORNE. Mr. President, I am proud to yield 1 minute to the
senior Senator from Idaho. [[Page S1174]]
The PRESIDING OFFICER. The Chair recognizes the Senator from Idaho.
Mr. CRAIG. Mr. President, I thank my colleague, Senator Kempthorne,
for yielding. First of all, let me recognize the effort that he has put
in now for, I guess, over 3 days on the floor to push an issue that the
American people have spoken so clearly to, and I congratulate him for
this effort and the work that goes on here to fashion this most
important piece of legislation toward final resolution.
But I now speak specifically to the Lieberman-Kerry-Levin amendment
of which, if you want to gut a good bill, here is where you start. This
is the first substantive effort we have seen on the part of the other
side to substantially change the course and the direction of this bill.
Basically, the private sector has an opportunity to compete with any
segment of the public sector, and vice versa. And if you start making
all of these broad exceptions, you create gaping holes in this
legislation that you can drive billions of dollars through.
This amendment says that wherever there may be competition between
the private and public sectors, S. 1 would not apply.
If this amendment actually did anything to stop the Federal
Government from imposing mandates on the private sector, I'd be the
first in line to cosponsor it.
This amendment would not stop unfunded mandates on the private
sector. In fact, it would help Government go on imposing them.
As I understand it, since the private sector might conceivably
compete for virtually any public sector activity, this amendment would
make S. 1 meaningless. It would gut the bill.
As my colleague from Idaho has pointed out from his experience as a
city mayor, the private sector competes with the public sector in a
host of activities such as police services and fire services, planning
services, prisons, education, recreation, civil engineering--to name
only a few.
Under this amendment, unfunded mandates relating to activities or
services like these would not have to comply with S. 1.
We are told that S. 1 would put the private sector at a disadvantage
in competing with the public sector, because the private sector would
have to pay for mandates it operates under, while the Federal
Government would absorb the cost of any mandates on the public sector.
This amendment is based on wrong assumptions about S. 1.
S. 1 is a process reform that makes it harder to enact unfunded
mandates on either the public or private sector and opens up the
process to public scrutiny.
This amendment does not try to stop the Government from imposing
costly mandates on the private sector. Instead, the amendment just
exempts a huge class of mandates.
As a result, this amendment would remove the procedural speed bump
that S. 1 puts in the path of those unfunded mandates.
In other words, this amendment will hurt the private sector by
keeping it easy for the Government to impose unfunded mandates on
either the public or private sector.
Exempting a long list of mandates from this bill just means making it
easier for Congress and the Federal Government to continue putting the
cost of mandates on somebody else's bill--and making it harder for
Congress to find out ahead of time how much the mandate will cost the
American people.
The process today is broken. It is biased toward irresponsibility. It
frustrates information gathering. It prevents the American people from
having a clear view of what decisions are being made by Congress and
the Federal regulators.
S. 1 would end all that.
S. 1 gives us a tool to determine the actual cost of Government
mandates before we are asked to vote on them.
For the first time in history, it will be standard operating
procedure for CBO to analyze the cost of mandates on the private
sector, and for Federal agencies to review the costs of mandates on the
private sector.
Without a CBO estimate, a bill imposing unfunded mandates on the
private sector would be subject to a point of order.
Most important, S. 1 changes the bias of the current system to make
Congress and the Federal regulators accountable for the real outcome of
their decisions, by giving the American people a clear view of the
decisions being made.
American business understands all this. We have heard the letters
from business leaders who are in the best position to evaluate the
bill's impact on competition. Those letters support S. 1.
Exempting actions from S. 1 will not help any business in America. It
will only keep a broken process in place.
If you think unfunded mandates on American business are unfair, you
should support S. 1 and oppose this amendment.
The PRESIDING OFFICER. The Senator's time has expired. The Senator
from Idaho.
Mr. KEMPTHORNE. Mr. President, I just want to thank my colleague from
Idaho. I am proud to be a partner with him.
Mr. LOTT. Mr. President, parliamentary inquiry.
The PRESIDING OFFICER. The Chair recognizes the Senator from
Mississippi.
Mr. LOTT. How much time is remaining on both sides?
The PRESIDING OFFICER. Five minutes for the Senator from Idaho and 27
minutes for the Senator from Connecticut.
Mr. LOTT. So at approximately sometime shortly after 5:30 or 5:35, we
can anticipate a vote on this issue?
The PRESIDING OFFICER. 5:40 to be specific.
Mr. LOTT. Thank you, Mr. President.
Mr. LIEBERMAN addressed the Chair.
The PRESIDING OFFICER. The Chair recognizes the Senator from
Connecticut.
Mr. LIEBERMAN. Mr. President, I will speak on my own time. I say also
to my friend from Mississippi that we may not consume all the time
available on our side. There is one other Senator who has asked to
speak in support of the amendment, and if he arrives on the floor,
obviously, I will yield to him. Otherwise, I will speak for a brief
time. I presume that my friend and colleague from Idaho will want to
speak for a little bit. And if it is OK with him, I would like to wrap
it up.
Mr. President, I do want to make clear here a few points in response
to some of the opposition to the amendment. This is not some special
exemption that we are creating. We are in fact trying to create an
equality of enforcement of S. 1 to make it clear that it applies
equally to the public and the private sectors, and that it does not, by
setting a higher hurdle for so-called mandates on State and local
governments, exempt them and put them at a competitive advantage in
regard to, or in respect to private entities that are doing the same
thing that they are doing.
I feel very strongly, Mr. President, that this amendment does not go
to the heart of this bill. This bill, which I fully support, one, wants
Congress to be forced to face an estimate of the costs of what we are
about to do. It sounds as if we should have done it a long time ago,
and we should have. What is rational or fair about passing a bill which
requires other levels of Government or the private sector to take
action when we do not know how much it will cost them? As much as we
support some of the goals that are the subjects of legislation we
adopt, we might decide that it is not worth it, that on a cost-benefit
basis, it is not worth it.
My amendment leaves that intact. We will be forced to face the cost
of potential legislation. CBO must give an estimate of the cost impact
on both public and private entities of anything we are about to do.
The amendment, if passed, leaves the second point of order in place
created by S. 1 so far as it relates to mandates specifically on State
and local government for governmental functions where there is no
private-sector competition. In my opinion, that affects the most
significant and certainly the most costly mandates that we put on State
and local governments. They still would be covered by S. 1, if amended
by the amendment that we have put in. And it is just there in the
dollars and cents. It was there in the testimony [[Page S1175]] that I
read from Governor Voinovich of Ohio and, indeed, from Senator Bond.
When you look at the impact, the big-ticket items, the big-ticket
mandates, the most costly mandates on the State and local governments
are the ones that are uniquely on them--education and social services
particularly.
The current occupant of the chair made the point there are other
mandates we put on the States uniquely, and the motor-voter
legislation, which the current occupant of the chair cited, is a good
example. There is no private sector impact of that. In a sense that is
the classic Federal mandate. We had a ``good idea,'' and we asked the
States and localities to do it. We forced them to do it. But we did not
give them the money to pay for it. And that would still, if my
amendment passed, be required to pass the second hurdle, be subject to
the point of order, and be put on the track which would eventually lead
to no money, no mandate. And that ought to be.
But when we are dealing with something that affects both the public
and private sector, I just do not think it is right to lower the bar,
the hurdle, for the public sector and keep it up here for the private
sector. That is inevitably going to mean that the private sector will
be put at a competitive disadvantage where they are playing a zero sum
game as they are in so many clean air, clean water situations where you
have a set level of pollution reduction that the public and private
sector share. If we ask less of the public sector, the private sector
is going to have to bear more of a burden and pay more of a cost. And
ironically, and unintended, I know, is one of the consequences that I
foresee, which is that, if this amendment were passed, it would inhibit
the move toward privatization which so many of us support here,
privatization of public functions, because a private entity performing
a public function will be held to higher responsibilities, have higher
costs, and therefore governments will be less likely to privatize
because they will get this bargain.
So I think this is an amendment that is equitable. The underlying
bill is very necessary, and the amendment does not diminish the impact
of the underlying bill. In fact, it supports it and it supports it in a
way that is more fair because it does not increase the burdens on the
private sector.
Now, people who feel there are too many regulations generally,
Federal regulations and Federal mandates, may think that if this passes
in this form, because of the inequity that is being created between the
public and private sector, the next step will be to remove mandates
from the private sector.
I would respectfully suggest that is a big step which is not likely
to follow, and therefore the private sector will be left holding the
bag, paying the extra cost of this proposal. The reason I think that
big step would not be taken is that then--and I speak as someone who
has worked on market incentives for environmental protection and is
concerned about deregulation--but if you started to talk about pulling
off some of the regulations, then you are going to put in play a lot of
laws that the public wants us to keep out there.
Mr. LOTT. Mr. President, will the distinguished Senator yield?
Mr. LIEBERMAN. I will be glad to yield to my colleague.
Mr. LOTT. Just for a little discussion and maybe a question.
I certainly respect what the distinguished Senator from Connecticut
is trying to do. He always gives great thought to any amendment he
pursues or any bill he supports, and he really has an impact when he
does that.
I presume that the Senator is--I think I know the Senator well enough
that he is for the concept of this legislation.
Mr. LIEBERMAN. The Senator is correct.
Mr. LOTT. The Senator thinks we ought to take a look at the costs of
mandates we have been putting on State governments. Having been a State
attorney general, he knows what is involved here, and I know he would
like for us to review that and relieve the States and the local
governments of some of these mandates that cost millions of dollars.
So I know the Senator does not want to undermine the basic purpose of
this legislation, and the Senator does not want to in any way render it
moot, as I believe I heard somebody say earlier here.
The thing that bothers me about the amendment, more and more, you are
going to find that there are areas where both private and public are
already involved. I believe the distinguished chairman of the
Governmental Affairs Committee has indicated earlier that already you
have private activities in the police departments, in fire departments,
in public building inspectors, public road construction, public
hospitals, and city attorneys compete with the private, fee-for-service
attorneys.
So I was just rolling over in my mind as the Senator was speaking
that there are so many public-sector services now, at both the State
and the county and the city level, where you would have this private-
sector competition and that so much of the bill might be in fact wiped
out if we pass this.
How does the Senator respond to that? Because I am concerned about
what the impact would be. We do not want to wipe out major portions of
the bill because we know it is good. But with the potential impact that
might have on the private sector, we do not want to kill the whole
thing when you are trying in good faith to address a problem. When you
analyze it, it looks to me as if almost everything could be covered
here now.
Mr. LIEBERMAN. Mr. President, I appreciate the question from my
friend, and it is a good one. Let me first state that not only is there
not the intention to wipe out most of bill, I am convinced the impact
of the amendment is not to do that. And let me assure my friend from
Mississippi that I wish to support this bill. I was a cosponsor of S.
993 last year.
I was the attorney general of Connecticut before I came here. I
believe in federalism. I know that the States have not been treated
fairly in a whole host of mandates that we have put on them. But it is
just the point that the Senator is making that is part of my argument.
We are in a time now, I do not have to tell my friend, where we are
quite appropriately reviewing the whole structure and focus and purpose
of government, and taking a look at whether government is best suited
to perform certain functions or whether the private sector can pick up
those functions.
I am afraid that if we pass this bill unamended, without the
amendment that I have put in, all the incentives go toward keeping
governmental functions in the Government and not giving them over to
the private sector, because the private sector is held to the higher
standard. The public sector can be held to a lower standard if we do
not fully pay the cost of any mandate. So, if I understand the
Senator's question correctly, it is in fact because: First, I do not
want to put the private sector at a competitive disadvantage and,
second, I agree the Government has grown too big and we ought to figure
out ways in which we can have private entities perform some public
functions.
But this bill as it sits now will discourage that, as the school bus
operators--I read a letter, before my friend was on the floor, from the
school bus operators association, National School Transport Association
where they urge support of this amendment because of their fear that
the result of it, unintended, will be for fewer municipalities to
contract with them to provide school bus service because the
municipalities will not have to carry out Federal mandates regarding
safety equipment on the bus so they will have a lower cost whereas the
private school bus operators will have to carry that out.
So I repeat, I feel very strongly that this amendment does not gut
the bill. The bill remains strong, very strong. And frankly it is
revolutionary in its impact, forcing us to face the cost, setting
hurdles, and including setting that high hurdle when we mandate that a
State and local government perform a function uniquely. And that is
where most of the dollars are that we mandate the State and local
governments to pay.
So I urge my colleagues to consider supporting this bill across party
lines. I think it is fair. It is good for the private sector. And it is
good for the public, too, insofar as they are concerned about us
protecting their health and safety. [[Page S1176]]
Mr. President, I yield the floor at this time.
Mr. LOTT. Mr. President, I believe the distinguished sponsor of the
legislation is perhaps ready to speak. How much time is remaining now?
The PRESIDING OFFICER. There is 5 minutes remaining to the Senator
from Idaho, 10 minutes for the Senator from Connecticut.
Mr. LOTT. Does a quorum count against the time?
The PRESIDING OFFICER. Equally divided.
Mr. LOTT. Time would count. So at this point we could yield back time
on either side and perhaps have the closing statements?
Are we ready? Could I ask the distinguished Senator from Ohio, are we
ready to conclude the debate at this point?
Mr. GLENN. In just a moment. I think the distinguished minority
leader, I believe, had indicated he might want to have a few words on
this. We have sent word in to him that we are down to about the last 5
minutes so we might delay just a couple of minutes here.
Mr. LOTT. If that is the case, I do not believe the sponsor of the
legislation would want to use his time.
Do you want to just put in a quorum and let it count? Or do you want
to speak now?
I yield the floor.
The PRESIDING OFFICER. The Chair recognizes the Senator from Idaho.
Mr. KEMPTHORNE. Mr. President, I will yield such time to myself as I
may need.
Mr. President, a few points. No. 1, Senate bill 993, which I was a
cosponsor of, principal sponsor last year--it was a very good bill. S.
1, much of the base of that is 993, but it is a new and improved
version. I strongly support S. 1.
When we talk about this issue of competition between the public
sector and the private sector--I will put my voting record up. For
example, my ranking from the U.S. Chamber of Commerce is a 92 percent
voting record in support of business issues; National Federation of
Independent Business, 94 percent. I am not going to be part of any
legislation that in any way is going to have an adverse impact on our
business community. And I have not done that in S. 1.
One of the members of the business community I spoke with last week
made this very, very good point--Bob Bannister, National Association of
Homebuilders. He said, ``There is no such thing as an unfunded mandate.
Everyone of them are funded but they are funded by tax dollars. We in
the business community that are paying the taxes--we pay them.'' That
is why the business community strongly supports S. 1 as written.
But now we have the amendment. I respect my colleague from
Connecticut, but this amendment says that in those areas where there
may be competition, then we are not going to allow this process to
work. But that is what S. 1 is, it is a process.
Why would we not want to know the cost of some potential mandate
before we vote? I think the people of America want us to know how much
it is going to cost. What is the impact? And included in there is if in
any way this creates some sort of adverse impact to the private
sector--which are the ones paying the taxes anyway--we will know it.
The Senator from Massachusetts made the point, he said, and I am
paraphrasing: If it creates a disadvantage to the private sector, he
says, I think the people would say wait a minute.
Guess what? Now we will know, because of this process. And do you
know who will say wait a minute on behalf of the people? Congress will.
Because then we can come to the floor, and now it is not based on all
of these scenarios that we have heard. It is based upon empirical data.
Every one of these scenarios, as it has been pointed out, if they
develop then this is where we resolve it: Majority rules. But it is the
process that we know this ahead of time.
The Lieberman amendment will have the effect of eliminating from S. 1
any cost estimate for any conference reports, amendments or motions
which contain mandates. The estimates on these only come from
subsection C(1)(b) which the amendment makes inapplicable. So we are
going to say, you know what, there just may be a lot of these problems
out here. So rather than knowing that, rather than knowing how much it
is going to cost, we would rather not know. So let us just wipe it out.
That does not set well with me. That does not set well with mayors and
Governors and county commissioners and schoolteachers throughout the
United States nor our private sector partners throughout the United
States.
Mr. President, I will ask unanimous consent to have printed in the
Record the following letters. From the U.S. Chamber of Commerce--I will
only read a line from each of these.
The U.S. Chamber of Commerce has loudly and wholeheartedly
endorsed this legislation.
That is dated January 18, 1995.
A letter from W.M.X. Technologies, which is a large, large company
dealing with the waste management issue.
I am writing to express our appreciation and support for
your efforts in crafting the text of S. 1, the Unfunded
Mandate Reform Act of 1995.
NFIB, National Federation of Independent Business:
On behalf of the over 600,000 members of the National
Federation of Independent Business, I urge you to vote in
favor of S. 1.
The National Retail Federation:
On behalf of the Nation's retail community and its 20
million employees--1 in 5 U.S. workers--we are writing to
commend you for your sponsorship of S. 1. . . . S. 1, which
would restore accountability and responsibility at the
federal level, is the strongest legislative initiative in
which to counter this growing problem.
I do not think the American public realizes for how many years we
have cast votes in this well on mandates to the citizens of this
country and we never knew how much they cost. To this day we do not
know because nowhere do we require it.
We will now, with S. 1. And at any point that you want to have a
waiver of the point of order, just come to the floor and a majority
rules and we waive the point of order. But we are going to start making
informed decisions. We are not abdicating decisionmaking. We are
enhancing decisionmaking through S. 1--a process.
Mr. President, I reserve the remainder of my time and ask unanimous
consent the letters be printed in the Record.
There being no objection, the letters were ordered to be printed in
the Record, as follows:
National Retail Federation,
January 4, 1995.
Hon. Dirk Kempthorne,
U.S. Senate, Dirksen Office Building, Washington, DC.
Dear Senator Kempthorne: On behalf of the nation's retail
community and its 20 million employees--1 in 5 U.S. workers--
we are writing to commend you for your sponsorship of S. 1,
The Unfunded Mandates Reform Act of 1995. This legislation is
the most effective way to confront the problem of unfunded
federal mandates while simultaneously resuscitating the
concept of federalism and giving the states back control of
their budget obligations.
The problem is well documented and the solution is clear--
unfunded federal mandates must end. Over the past decade, an
unprecedented increase in unfunded federal mandates in
environment, labor and education, to name just a few, has
forced state and local governments to undertake actions that
drain their resources and are often in conflict with the best
interests of their citizens as well as our industry.
As representatives of the retail industry in each of the
fifty state capitals, we have experienced first hand the
profound adverse impact of unfunded federal mandates on our
industry and our state's economic well-being.
Unfunded federal mandates are simply another Washington
practice of circumventing a fundamental responsibility in
governing, the obligation to bring desires into line with
revenues. Such mandates are Washington's way to dictate to
the states, even though it has exhausted its resources. S. 1,
which would restore accountability and responsibility at the
federal level, is the strongest legislative initiative in
which to counter this growing problem.
Again, we sincerely appreciate your leadership on this
important matter.
Sincerely,
Tracy Mullin, President, National Retail Federation; George
Allen, Executive Vice President, Arizona Retailers
Association; J. Tim Brennan, President, Idaho Retailers
Association; Bill Coiner, President, Virginia Retail
Merchants Association; Spence Dye, President, Retail
Association of Mississippi; Bud Grant, Executive Director,
Kansas Retail Council; Jo Ann Groff, President, Colorado
Retail Council; John Hinkle, President, Kentucky Retail
Federation; John Mahaney, President, Ohio Council of Retail
Merchants; Charles McDonald, Executive Director, Alabama
Retail Association; Grant Monahan, [[Page S1177]] President,
Indian Retail Council; Sam Overfelt, President, Missouri
Retailers Association; Ken Quirion, Executive Director, Maine
Merchants Association.
Lynn Birleffi, Executive Director, Wyoming Retail Merchants
Assn.; John Burris, President, Delaware Retail Council; Bill
Dombrowski, President, California Retailers Association;
Janice Gee, Executive Director, Washington Retail
Association; Brad Griffin, Executive Vice President, Montana
Retail Association; Jim Henter, President, Association of
Iowa Merchants; Bill Kundrat, President, Florida Retail
Federation; William McBrayer, President, Georgia Retail
Association; Larry Meyer, Vice Chairman & CEO, Michigan
Retailers Assn.; Mickey Moore, President, Texas Retailers
Association; Nick Perez, President, Louisiana Retailers
Assn.; Dwayne Richard, President, Nebraska Retail Federation.
Bill Sakelarios, Executive Vice President, Retail Merchants
Assn. of N.H.; Paul Smith, Executive Director, Vermont Retail
Association; David Vite, President, Illinois Retail Merchants
Assn.; Melanie Willoughby, President, New Jersey Retail
Merchants Assn.; Mary Santina, Executive Director, Retail
Association of Nevada; Chris Tackett, President, Wisconsin
Merchants Federation; Jerry Wheeler, Executive Director,
South Dakota Retailers Assn.
____
Chamber of Commerce of the
United States of America,
Washington, DC, January 3, 1995.
Hon. Dirk Kempthorne,
Dirksen Senate Office Building, U.S. Senate, Washington, DC.
Dear Dirk: On behalf of the U.S. Chamber of Commerce
Federation of 215,000 businesses, 3,000 state and local
chambers of commerce, and 1,200 trade and professional
associations, I sincerely commend your hard work and tenacity
on the ``Unfunded Mandate Reform Act of 1995,'' S. 1. The
Chamber membership identified unfunded mandates on the
private sector and state and local governments as their top
priority for the 104th Congress. Accordingly, the Chamber
supports this legislation and will commit all necessary time
and resources to ensuring its passage early in this session.
I particularly want to thank you for responding to our
concerns about the role of the private sector in this debate
and the potential impact it could have had on the business
community, especially small businesses. Your willingness to
include the private sector in Title II of S. 1, ``Regulatory
Accountability and Reform,'' and your recognition of the
potential unfair competition issue between business and state
and local governments, make this a much strong bill that can
have a significant impact on the current regulatory burden.
Again, Dirk, we appreciate your commitment to this issue. I
look forward to working with you to secure passage of S. 1 as
well as other issues that we can join forces on for the 104th
Congress.
Sincerely,
Richard L. Lesher.
____
Small Business Legislative Council,
January 10, 1995.
Hon. Dirk Kempthorne,
U.S. Senate,
Washington, DC.
Dear Senator Kempthorne: We wish to express our support for
the Unfunded Mandates Reform Act of 1995, S. 1, and urge you
to vote for it. In particular, we strongly support the
provision requiring the Congressional Budget Office to
conduct an analysis of the direct cost of proposed mandates
on the private sector.
Several years ago, we arrived at the conclusion that many
of our ``regulatory'' problems were actually ``legislative''
problems. Congress had effectively assumed the role of
regulator. Therefore, we concluded, the analysis of new
``regulatory'' requirements should begin during the
legislative process. In effect, we argued that Congress
should impose upon itself, the discipline of the Regulatory
Flexibility Act.
For this reason, in addition to our general concerns about
unfunded mandates, we support this legislation. It is
important that Congress understand fully, the economic
consequences of its actions on small business, in a timely
manner. Small business is at the regulatory braking point.
All too frequently, small business owners tell us, ``I am not
sure I can advise my son or daughter to join me in the
business. It is not worth it, the hassles outweigh the joys.
They just might be better off working for someone else.''
That is not a healthy trend for the country.
The Small Business Legislative Council (SBLC) is a
permanent, independent coalition of nearly one hundred trade
and professional associations that share a common commitment
to the future of small business. Our members represent the
interests of small businesses in such diverse economic
sections as manufacturing, retailing, distribution,
professional and technical services, construction, tourism,
transportation, and agriculture. Our policies are developed
through a consensus among our membership. Individual
associations may express their own views. For your
information, a list of our members is enclosed.
Sincerely,
John S. Satagaj,
President.
Members of the Small Business Legislative Council
Air Conditioning Contractors of America.
Alliance for Affordable Health Care.
Alliance of Independent Store Owners and Professionals.
American Animal Hospital Association.
American Association of Nurserymen.
American Bus Association.
American Consulting Engineers Council.
American Council of Independent Laboratories.
American Floorcovering Association.
American Gear Manufacturers Association.
American Machine Tool Distributors Association.
American Road & Transportation Builders Association.
American Society of Travel Agents, Inc.
American Sod Producers Association.
American Subcontractors Association.
American Textile Machinery Association.
American Trucking Association, Inc.
American Warehouse Association.
American Wholesale marketers Association.
AMT-The Association for Manufacturing Technology.
Apparel Retailers of America.
Architectural Precast Association.
Associated Builders & Contractors.
Associated Equipment Distributors.
Associated Landscape Contractors of America.
Association of Small Business Development Centers.
Automotive Service Association.
Automotive Recyclers Association.
Bowling Proprietors Association of America.
Building Service Contractors Association International.
Business Advertising Council.
Christian Booksellers Association.
Council of Fleet Specialists.
Council of Growing Companies.
Direct Selling Association.
Electronics Representatives Association.
Florists' Transworld Delivery Association.
Health Industry Representatives Association.
Helicopter Association International.
Independent Bakers Association.
Independent Bankers Association of America.
Independent Medical Distributors Association.
International Association of Refrigerated Warehouses.
International Communications Industries Association.
International Formalwear Association.
International Television Association.
Machinery Dealers National Association.
Manufacturers Agents National Association.
Manufacturers Representatives of America, Inc.
Mechanical Contractors Association of America, Inc.
National Association for the Self-Employed.
National Association of Catalog Showroom Merchandisers.
National Association of Home Builders.
National Association of Investment Companies.
National Association of Plumbing-Heating-Cooling
Contractors.
National Association of Private Enterprise.
National Association of Realtors.
National Association of Retail Druggists.
National Association of RV Parks and Campgrounds.
National Association of Small Business Investment
Companies.
National Association of the Remodeling Industry.
National Association of Truck Stop Operators.
National Association of Women Business Owners.
National Chimney Sweep Guild.
National Association of Catalog Showroom Merchandisers.
National Coffee Service Association.
National Electrical Contractors Association.
National Electrical Manufacturers Representatives
Association.
National Food Brokers Association.
National Independent Flag Dealers Association.
National Knitwear Sportswear Association.
National Lumber & Building Material Dealers Association.
National Moving and Storage Association.
National Ornamental & Miscellaneous Metals Association.
National Paperbox Association.
National Shoe Retailers Association.
National Society of Public Accountants.
National Tire Dealers & Retreaders Association.
National Tooling and Machining Association.
National Tour Association.
National Venture Capital Association.
National Wood Flooring Association.
Opticians Association of America.
Organization for the Protection and Advancement of Small
Telephone Companies.
Passenger Vessel Association.
Petroleum Marketers Association of America.
Power Transmission Representatives Association.
Printing Industries of America, Inc.
Professional Lawn Care Association of America.
[[Page S1178]]
Promotional Products Association International
Retail Bakers of America.
Small Business Council of America, Inc.
Small Business Exporters Association.
SMC/Pennsylvania Small Business.
Society of American Florists.
____
January 10, 1995.
Dear Senator: On behalf of the broad-based coalition listed
below, representing millions of hardworking, tax paying
voters, we urge your strong support of S. 1, the Unfunded
Mandates Reform Act of 1995. Congress must begin to control
the ``unfunded mandates'' crisis facing America today.
Our members are quite concerned over the burgeoning number
of federal mandates imposed on state and local governments
which lack adequate financial assistance for development,
implementation and compliance. Without adequate funding,
states and localities are forced to pass on these costs and
the true financial burden is shouldered by private business
and citizens through fees and taxes.
S. 1, a bi-partisan effort sponsored by Senator Dirk
Kempthorne (R-ID) and John Glenn (D-OH) and supported by a
majority of the Senate, is the critical first step to
controlling the unfunded mandates crisis. This bill requires
the non-partisan Congressional Budget Office (CBO) to analyze
new legislation and determine the cost of any proposed
mandate imposed on state and local governments. The bill also
requires CBO cost estimates for impacts on the private
sector. If these estimates are not completed, any proposed
legislation may be ruled out of order.
This bill does not halt government actions. It is an
important educational tool for Members of Congress who need
to know the financial impact of legislation being considered
before voting on it.
Now is the time to act. Support S. 1 without weakening
amendments and begin to alleviate the burden of unfunded
federal mandates.
Sincerely,
Associated Builders and Contractors, Inc. Building Owners
and Managers Association.
Denver Regional Transit District.
International Council of Shopping Centers.
National Association of Home Builders.
National Association of Real Estate Investment Trusts, Inc.
National Association of Realtors.
National Restaurant Association.
National School Transportation Association.
Small Business Legislative Council.
U.S. Chamber of Commerce.
Washington Metro Area Transit Authority.
____
Chamber of Commerce of the
United States of America,
Washington, DC January 10, 1995.
Members of the U.S. Senate:
The Senate is scheduled tomorrow to consider S. 1, the
``Unfunded Mandate Reform Act of 1995.'' On behalf of the
U.S. Chamber of Commerce Federation of 215,000 businesses,
3,000 state and local chambers of commerce, 1,200 trade and
professional associations, and 72 American chambers of
commerce abroad, I strongly urge you to vote ``YES.'' The
Chamber will include this vote in its annual ``How They
Voted'' vote ratings.
The U.S. Chamber conducts a survey of its membership each
congressional cycle to determine the most important
legislative issues for the coming Congress. This year, the
Chamber membership identified unfunded mandates on the
private sector and state and local governments as its number
one issue for the 104th Congress. We believe that the
coverage S. 1 provides for the private sector represents a
significant step forward in our ongoing battle to tame
federal regulatory burdens. Accordingly, we have endorsed S.
1 and are devoting all necessary time and resources to secure
its passage.
All the private sector seeks in this debate is information
and accountability. We do not seek federal funding for any
private sector mandate. Our goal is to ensure that before any
significant legislation can be passed or any major regulation
imposed on the private sector, a cost impact analysis be done
and made public. We also seek, at a minimum, a requirement
that before any public sector mandate is funded, an analysis
of the potential for unfair competition between the public
and private sectors in the provision of the same goods or
services is provided and aired. Our intent is to secure full
and honest debate and to allow the public to communicate to
Washington where their limited resources should be spent.
Every day, American business and households, as well as state
and local governments, have to consider the impact their
actions have on their own bottom lines. Congress and federal
regulators also should be required to consider the financial
impact of the mandates they impose.
This issue is about good government, jobs, and
competitiveness. The business community recognizes that state
and local governments struggle with such basic necessities as
funding for additional police officers, ambulances and
schools because an increasing portion of their budgets go
toward complying with unfunded federal mandates So too do
businesses struggle--particularly small buuinesses--with
generating jobs, making their businesses grow, and sometimes
just staying in business.
____
National Association of
Wholesaler-Distributors,
Washington, DC, January 11, 1995.
Hon. [Name],
U.S. Senate,
Washington, DC.
Dear Senator [Last Name]: Shortly you will be called upon
to consider S. 1, ``The Unfunded Mandate Reform Act of
1995.'' As you know, in addition to addressing unfunded
mandates imposed on state and local governments, the
legislation includes a requirement that the Congressional
Budget Office conduct a cost-impact analysis whenever
Congress wants to impose an unfunded mandate of more than
$200 million on the private sector. On behalf of the 45,000
companies represented by the National Association of
Wholesaler-Distributors (NAW), we strongly urge you to fight
for passage of S. 1 as drafted, and oppose any efforts to
remove or weaken the private-sector coverage language.
Clearly, S. 1 will force Congress to confront the real
world impact of unfunded mandates on the millions of
businesses, and their employees, that drive our economy, and
who must implement and pay for the laws, rules and
regulations that are imposed on them by Washington. Indeed,
your support for S. 1 with its strong private sector coverage
provisions, will tell every employer and employee in [State]
and across the country that before considering an unfunded
mandate you will carefully review the costs to American
business associated with that mandate. This, in our
estimation, represents sound government policy, sound
business policy and sound economic policy.
With thanks for your consideration and best regards.
Cordially
Dirk Van Dogen,
President.
Alan M. Kranowitz,
Senior Vice President.
____
Browning-Ferris Industries,
Washington, DC, January 11, 1995.
Hon. Dirk Kempthorne,
Dirksen Building,
Washington, DC.
Dear Senator Kempthorne: We appreciate the attention you
have given to views we previously expressed in connection
with unfunded mandates legislation. We expressed our previous
views at a time when one of our concerns was that unfunded
mandates legislation could have retroactive effect. It is
evident that S. 1 has a prospective effect only, which we
understand was your intent all along.
After reviewing the legislation that will be considered on
the floor and after discussions with your office, we
recognize that among your objectives for S. 1 is creation of
a favorable climate for the private sector. In fact, S. 1
seeks creatively to address the concern expressed in some
quarters that unfunded mandates legislation could
disadvantage the private sector where public-private
competition takes place. Moreover, after many years of
experience in working with you--most of them prior to your
tenure in the Senate--BFI is convinced that your dedication
to free enterprise is unsurpassed.
With your commitment to assure equality for the private
sector--no more, but no less--where competition exists
between the public and private sectors, we are pleased to
strongly support S. 1.
Sincerely,
Richard F. Goodstein.
____
National Federation of
Independent Business,
Washington, DC, January 3, 1994.
Hon. Dirk Kempthorne,
U.S. Senate,
Washington, DC.
Dear Dirk: On behalf of the over 600,000 members of the
National Federation of Independent Business, I urge you to
vote in favor of S. 1, the unfunded mandates legislation,
when it is considered by the Senate in January.
Unfunded federal mandates on the states and local
governments end up requiring these entities to raise taxes,
establish user fees, or cut back services to balance their
budgets. Small business owners are affected by all of these
actions.
Between 1981 and 1990, Congress enacted 27 major statutes
that imposed new regulations on states and localities or
significantly expanded existing programs. This compares to 22
such statutes enacted in the 1970s, 12 in the 1960s, 0 in the
1950s and 1940s, and only two in the 1930s. The Congressional
Budget Office estimates that the cumulative cost of new
regulations imposed on state and local governments between
1983 and 1990 was between $8.9 billion and $12.7 billion.
These include environmental requirements, voters registration
requirements, Medicaid, and others.
It was not the states and cities who paid roughly $10
billion in unfunded mandates during the 1980s; it was
taxpayers--small business owners as well as everyone else. In
June 1994, a poll of all NFIB members resulted in a
resounding 90% vote against unfunded mandates.
I urge you to strongly support S. 1.
Sincerely,
John J. Motley III,
Vice President,
Federal Governmental Relations.
____
WMX Technologies, Inc.
Washington, DC, January 12, 1995.
Hon. Dirk A. Kempthorne,
U.S. Senate, Washington, DC.
Dear Senator Kempthorne: I am writing to express our
appreciation and support for [[Page S1179]] your efforts in
crafting the text of S.1, The Unfunded Mandate Reform Act of
1995.
As you know, WMX Technologies, Inc. is the world's largest
environmental services company. In the United States, the WMX
family of companies provides municipal solid waste management
services in 48 states. These services include 132 solid waste
landfills and 15,000 waste collection vehicles serving
approximately 800,000 commercial and industrial customers as
well as 12 million residential customers and contracts with
nearly 1,800 municipalities. In addition, our 14 trash-to-
energy plants produce energy from waste for the 400
communities they serve. Finally, our recycling programs
provide curbside recycling to 5.2 million households in more
than 600 communities and to 75,000 commercial customers
throughout the United States.
We provide these services in a heavily regulated and highly
competitive environment. In many cases, State, local and
tribal governments are our valued customers, while in others
they enter the market and provide services as out
competitors. While we do not object to their entry into the
market, we have consistently sought to ensure that there is a
level playing field upon which we can all compete fairly in
the marketplace. For this reason, we have been keenly
interested in efforts to ensure that the private sector is
not competitively disadvantaged by unfunded mandate
legislation that would preferentially relieve public sector
participants from the costs of complying with Federal
mandates.
WMX is deeply grateful to you for your sensitivity to this
potential difficultly and your willingness to work with us to
resolve it. We are confident that the legislation and
amendments you will support on the floor of the Senate will
provide the necessary safeguards to avoid unintended adverse
impacts upon the private sector.
We look forward to working with you and your staff on this
and other matters of mutual concern.
Sincerely,
Frank B. Moore,
Vice President
for Government Affairs.
____
Chamber of Commerce of the
United States of America,
Washington, DC, January 18, 1995.
Letters to the Editor,
New York Times, West 43d Street, New York, NY.
To The Editor: Your editorial in today's paper, ``What's
the Rush on Mandates?'' categorically misrepresents the
position of the U.S. Chamber of Commerce on the unfunded
mandates legislation pending before Congress.
Over a year ago, we began working with Senator Kempthorne
and Representative Clinger, the respective leaders on this
issue in the U.S. Senate and House of Representatives, to
ensure comprehensive coverage for the private sector. We have
nothing but praise for their leadership on this issue and for
their openness to the concerns of the private sector. Indeed,
when we brought the issue of the potential for unfair
competition to their attention (caused when only the public
sector receives funding for mandate compliance in an area
where they compete with businesses), they responded
immediately by including language in both the Senate and
House bills to specifically require Congress to address this
issue.
The U.S. Chamber of Commerce has loudly and wholeheartedly
endorsed this legislation and has committed all necessary
time and resources to ensuring its passage and successful
implementation. Contrary to your reporting, every
communication we have sent to both Congress and our
membership federation of 220,000 on this issue since the
advent of the 104th Congress emphatically states our support
for quick passage of this legislation.
Sincerely,
R. Bruce Josten.
The PRESIDING OFFICER. The Chair recognizes the Senator from
Connecticut.
Mr. LIEBERMAN. Mr. President, I do want to respond to my friend from
Idaho and say it is certainly the intention of the sponsors of the
amendment--I am confident the desired impact of the sponsors of the
amendment--to leave most of the contents of requirements of S. 1
intact, including the requirement that there be a Congressional Budget
Office analysis of the cost of every Federal law which might result in
a mandate on public and private entities, and that a measure would be
subject to a point of order--a point of order would lie if there was
not such an estimate.
So we want to keep those facts in there, and we want to keep the
second point of order in there with regard to the mandate that would
impact State and local governments in the capacity of State and local
governments, unique as it is, when they are not competing with anyone
from the private sector. All we want to do here is to say that it is
unfair to lower the bar on State and local governments when they are
performing a function pursuant to a mandate that the private sector is
also performing.
Yes, the Senator from Idaho is correct, this is just a point of
order. But a point of order is more than just a point of order. It sets
up here a two-track system, and we are saying to State and local
governments, ``You have the opportunity to put yourself on a course
that says no money, no mandate, no responsibility,'' while the private
sector has to pay the cost of fulfilling that mandate regardless.
Mr. President, I ask unanimous consent that the Senator from
Illinois, Ms. Carol Moseley-Braun, be added as a cosponsor of the
amendment.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. LIEBERMAN. Mr. President, I yield such time as he may need to the
distinguished Democratic leader.
The PRESIDING OFFICER. The Senator from South Dakota.
Mr. DASCHLE. Mr. President, I thank the distinguished Senator from
Connecticut and commend him for the amendment.
I have watched the debate and am very moved by his arguments. I hope
our colleagues will support the amendment. It is a crucial amendment,
in my view, to improving the quality of this legislation.
As the Senator was just indicating, as currently written, this bill
could create unfair competition between the public and private sectors
by creating a presumption that public sector costs to comply with
mandates should in nearly all cases be subsidized by the Federal
Government.
In some cases, Federal mandates will affect both the public and
private sectors in similar and, in many cases, nearly identical
manners. The costs of compliance with minimum wage laws or
environmental standards are incurred by both the public and private
sectors.
Subsidization of the public sector in these cases could create a
competitive advantage for activities performed by the public sector as
it competes with the private sector in the same markets.
In the past few weeks, there have been a number of efforts made by
both majority and minority staff to develop a compromise on this issue.
I appreciate the work by Senator Kempthorne to deal with this problem.
He and others on the Republican side of the aisle recognize the
potential problem here and have worked in good faith to address it.
I felt that we were close to a solution with an agreement that
language would be included in the committee report that would have
clearly stated the policy of the Congress that where mandates would
affect the public and private sectors equally, and where Federal
subsidization of the public sector would competitively disadvantage
private businesses, a Federal subsidy should not be provided.
At least this would have established a basis for a Senator to go to
the floor and argue for a waiver of the point of order in such cases.
Unfortunately, when the final committee reports were filed, the
language that we had proposed to address this situation was
substantially weakened. No strong statement of such policy was included
to clarify that Congress should not be expected to subsidize the public
sector to the detriment of the private sector.
Such a statement of policy is clearly needed in this bill. The
pending amendment will provide that statement by establishing a well-
considered and reasonable exclusion.
The exclusion is not intended to create a massive loophole, as some
Members have suggested. It merely ensures that the competitive balance
between the public and private sectors be maintained.
I urge my colleagues on both sides of the aisle to support this wise
and fair amendment.
Mr. President, I think the Senator from Connecticut and others who
have put a great deal of effort into structuring this amendment have
thought through many of the very difficult obstacles that we face as we
address this bill.
We want to support this bill. We want to find ways in which to
address what we consider some of the shortcomings. Certainly as we
consider some of the most significant problems with the implementation
of this legislation, this is one of the most serious issues of all.
[[Page S1180]]
So, again, I hope our colleagues will see fit on both sides of the
aisle to find a way to support this and to recognize its importance. It
is important. We ought to pass it. I hope we can pass it this
afternoon.
I thank the Senator for yielding. I yield the floor.
Mr. LIEBERMAN. Mr. President, I inquire of the Chair how much time
remains?
The PRESIDING OFFICER. The Senator from Connecticut has 4 minutes,
and the Senator from Idaho has 1 minute.
Mr. KEMPTHORNE. Mr. President, I appreciate this discussion. This is
what we ought to be doing.
Just for clarification of the Lieberman amendment, where competition
exists, paragraph B does not apply. So in the bill, on page 21, line
24, all of page 22, all of page 23, page 24 down to line 21, it is
exempt.
So, again, I think that we have stated the case. Why would we not
want to go through the process of knowing what the cost is, the impact,
and if there is some adverse impact with the private sector? I think
the American public wants us to know that information so that we can
discuss that and then the majority can rule. At any point you can seek
a waiver and say, ``No; in this case, we don't need to do that.'' But
rather than inventing all of these scenarios, let us let the will of
the Senate work by giving them a process that will enhance that.
Mr. President, I ask unanimous consent that immediately following the
next rollcall vote Senator Biden of Delaware and Senator Kempthorne
from Idaho be allowed to engage in a colloquy not to exceed 10 minutes.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. LIEBERMAN. Mr. President, I want to thank my friend and colleague
from Idaho for what has been a very good, substantive debate and to
make two points.
One, he is right that this amendment would have that effect regarding
section (1)(B). So we remove from any mandate that equally affected the
private and public sectors the requirement of section (1)(B), but it
leaves (1)(A) intact. (1)(A) is the requirement to report the cost of
any bill before the Senate can act on it. It says very simply it shall
not be in order in the Senate to consider any bill or joint resolution
that is reported by the committee unless the committee has published a
statement of the director of CBO on the direct cost of Federal mandates
in accordance with this proposal. So that remains intact. The evidence
will be there.
Finally, I want to say this to my friend from Idaho. I think that he
and Senator Glenn have done extraordinary work here. This measure, S.
1, really would force us finally to do what we should have done a long
time ago. I sincerely believe that the passage of this amendment that I
have offered leaves almost all of the intent of the bill intact, and
certainly that part that imposes the most serious cost on State and
local governments.
I think, with the amendment passed, the bill is a better bill. And
may I say with thanks and appreciation to the Senator from Idaho, if we
pass it with the amendment it is a truly historic accomplishment and
will begin to dramatically affect the way in which we behave here and
force us to behave in a much fairer way to our friends in the State and
local and private sectors who have to live with the laws that we adopt.
Mr. President, I thank the Chair. I yield the remainder of my time.
Mr. KEMPTHORNE. Mr. President, I move to table the amendment, and I
ask for the yeas and nays.
The PRESIDING OFFICER. Is there a sufficient second?
There is a sufficient second.
The yeas and nays were ordered.
The PRESIDING OFFICER. The question is on agreeing to the motion of
the Senator from Idaho to lay on the table the amendment of the Senator
from Connecticut. On this question, the yeas and nays have been
ordered, and the clerk will call the roll.
The assistant legislative clerk called the roll.
Mr. LOTT. I announce that the Senator from South Carolina [Mr.
Thurmond] is necessarily absent.
Mr. FORD. I announce that the Senator from Louisiana [Mr. Johnston]
and the Senator from Vermont [Mr. Leahy] are necessarily absent.
I further announce that, if present and voting, the Senator from
Vermont [Mr. Leahy] would vote ``no.''
The PRESIDING OFFICER (Mr. Bennett). Are there any other Senators in
the Chamber who desire to vote?
The result was announced--yeas 53, nays 44, as follows:
[Rollcall Vote No. 29 Leg.]
YEAS--53
Abraham
Ashcroft
Bennett
Bond
Brown
Burns
Chafee
Coats
Cochran
Cohen
Coverdell
Craig
D'Amato
DeWine
Dole
Domenici
Faircloth
Frist
Gorton
Gramm
Grams
Grassley
Gregg
Hatch
Hatfield
Heflin
Helms
Hutchison
Inhofe
Jeffords
Kassebaum
Kempthorne
Kyl
Lott
Lugar
Mack
McCain
McConnell
Murkowski
Nickles
Packwood
Pressler
Roth
Santorum
Shelby
Simpson
Smith
Snowe
Specter
Stevens
Thomas
Thompson
Warner
NAYS--44
Akaka
Baucus
Biden
Bingaman
Boxer
Bradley
Breaux
Bryan
Bumpers
Byrd
Campbell
Conrad
Daschle
Dodd
Dorgan
Exon
Feingold
Feinstein
Ford
Glenn
Graham
Harkin
Hollings
Inouye
Kennedy
Kerrey
Kerry
Kohl
Lautenberg
Levin
Lieberman
Mikulski
Moseley-Braun
Moynihan
Murray
Nunn
Pell
Pryor
Reid
Robb
Rockefeller
Sarbanes
Simon
Wellstone
NOT VOTING--3
Johnston
Leahy
Thurmond
So, the motion to lay on the table was agreed to.
Mr. KEMPTHORNE. Mr. President, I move to reconsider the vote by which
the amendment was agreed to, and I move to lay that motion on the
table.
The motion to lay on the table was agreed to.
The PRESIDING OFFICER. Under the previous order, the Senator from
Delaware [Mr. Biden] and the Senator from Idaho [Mr. Kempthorne] are to
be recognized for up to 10 minutes.
Delegation of Constitutional Authority by Congress
Mr. BIDEN. Mr. President, I thank the Chair.
Mr. President, yesterday, or maybe even the day before yesterday, I
responded to an assertion that I thought was overbroad--not made by the
Senator from Idaho but by another Senator--as to what was within the
constitutional authority of the Congress to delegate or not delegate in
terms of legislative power. Mr. President, I got into this discussion
about the constitutional issue and separation of powers issue, of how
much we could and could not delegate and whether or not particular
sections of this legislation, in fact, exceeded the constitutional
authority we had to delegate power.
Before I begin this colloquy, I want to thank the Senator from Idaho
and his staff for spending the time with me and going through it. Mr.
President, this bill adds a new section to the Budget Act, section
408(C). That section, as I understand it, provides that a simple
majority point of order shall lie against any authorization bill that
imposes a mandate unless the authorization bill provides for the
possibility that the Appropriations Committee may not appropriate the
estimated cost set forth in the authorization bill to pay for the
mandate.
Section 408(C) provides that the authorization bill must deal with
that eventuality by designating a responsible Federal agency and by
establishing criteria and procedures for that agency to scale back the
mandate to match the funds that the Appropriations Committee has
provided, or to declare the mandate to be in effect.
Now, let me ask my friend from Idaho, what would happen under this
provision, and the provision I am referring to is section 408(C), if an
authorization bill imposed a mandate, named a responsible Federal
agency to implement the mandate, but did not provide any criteria at
all for the agency to use in scaling back the mandate or declaring it
ineffective? Would a point of order in section 408(C) lie in that case?
Mr. KEMPTHORNE. Mr. President, I say to my friend from Delaware, yes,
that the point of order would lie.
Mr. BIDEN. Now, further, I ask my friend from Idaho, what if the
authorization bill did claim to set out criteria [[Page S1181]] and
procedures for the responsible Federal agency but those criteria said
in effect, ``Federal agency, do what you think is right if the
Appropriations Committee does not fund the full amount set forth in the
authorization bill.'' Would a point of order lie in that circumstance?
Mr. KEMPTHORNE. Mr. President, yes, it would.
Mr. BIDEN. Mr. President, I thank the Senator from Idaho for his
answers. I do appreciate them.
Mr. KEMPTHORNE. Mr. President, I would like to pose a question to my
friend from Delaware. That is, can my colleague and ranking member of
the Judiciary Committee tell me if his constitutional concerns
regarding the delegation of authority to executive branch agencies in
this section have been satisfied?
Mr. BIDEN. Mr. President, the answer is yes.
As this colloquy has helped show, at least from my perspective,
section 408(C) provides that authorization bills that impose a mandate
and delegate authority to a Federal agency shall include criteria and
procedures to guide the Federal agency's actions. To the extent that an
authorization bill contains such criteria and procedures, it increases
the likelihood that the delegation of authority is constitutional. To
the extent that such a bill lacks appropriate criteria and procedures,
it increases the likelihood that the delegation is unconstitutional.
The Senate could, of course, vote to overrule any point of order
raised on this basis. But that does not necessarily mean that the
delegation is constitutional because the Senate overruled a point of
order. The ultimate question of constitutionality is for the courts to
decide. Of course, ultimately, all these questions of the
constitutionality of a delegation of authority through an executive
agency are through the courts.
I am satisfied that the attempt has been made in the legislation to
meet the constitutional requirements. I thank my colleague, the Senator
from Idaho, for making these points clear to me. As far as I am
concerned, on this point, I have no further concern.
Mr. KEMPTHORNE. Mr. President, I say to my friend from Delaware how
much I appreciate his looking into this issue and sitting down so that
we could go through this point by point.
Because of the universal respect for your legal ability, that was
important to me. So I appreciate that the Senator made that effort, and
I appreciate that the Senator has entered into this colloquy so we can,
I hope, lay this issue to rest. It allows Members, again, to move
forward on this bill, which is so important to all Members.
I do thank and show my respect to the Senator from Delaware.
Mr. BIDEN. Mr. President, I thank my colleague from Idaho for his
overly generous references to my legal abilities.
In the event that the next election does not turn out as I wish, I
hope everyone listened to it. And I wish it were true, although it is
not warranted. I appreciate the sentiment.
Mr. BYRD. Mr. President, will the distinguished Senator from Idaho
yield?
May I say that I, too, have great respect for the opinion and
viewpoints of our friend from Delaware, the ranking member of the
Judiciary Committee. He teaches courses in law, and has served as the
chairman of that Judiciary Committee for many years.
And what he says carry great weight with me. But I must say that this
Senator's concerns are not allayed. I will expound upon those concerns
in due time, and I also expect to have an amendment prepared, and
perhaps a couple of amendments, which, if agreed to, will allay my
concerns.
Mr. KEMPTHORNE. I thank the Senator from West Virginia.
Mr. LEVIN. I wonder if the Senator will yield briefly on this point
and my friend from Delaware will also perhaps engage me in a colloquy,
because I also have some continuing concerns on this issue, although I
do think there has been some significant clarification.
The PRESIDING OFFICER. Does the Senator yield to the Senator from
Michigan?
Mr. KEMPTHORNE. Yes, Mr. President, I yield but retain my right to
the floor.
Mr. LEVIN. My question would be this: The word ``specific'' is not in
here. Would this be clearer, does the Senator from Delaware believe, if
the word ``specific'' were added before the words ``criteria and
procedure"?
Mr. BIDEN. Mr. President, if I may respond, the answer is yes. I do
not think it is necessary, but it would not do any damage to the
section.
Again, I do not want to take too much time, but if you look at the
case law here, the real issue is not whether or not we can delegate
authority, it is how much authority can we delegate and with what
specificity do we delegate.
So to the extent that we demand specificity, it increases the
prospect that whatever authority is delegated is constitutionally
permissible. That is why I said in my colloquy with my friend from
Idaho that to the extent that an authorization bill contains such
criteria and procedure, specific criteria and procedure, to the extent
it does, it does not make it constitutional, it increases the prospects
that it will be constitutional. To the extent that it lacks
specificity, it diminishes the prospect that it would be held to be
constitutional.
So neither the Senator from Idaho nor I, I believe, are asserting
that this does not have the potential to raise a constitutional
question, but merely to suggest, and I would refer --maybe what I
should do before this bill is finished is refer to some of the case law
that I think indicates that it is likely--likely--that the Court would,
in fact, rule that we have not delegated authority beyond what we are
constitutionally permitted to do.
And to relate to the degree of specificity, I have no objection. It
is not my bill, so it is presumptuous of me to suggest what should and
should not be added. I have no objection it be added. I think it
strengthens it marginally without in any way weakening the intent of
the legislation.
Mr. LEVIN. I thank my friends from Idaho and Delaware.
The PRESIDING OFFICER. The Senator's time has expired. The Senator
from Idaho has the floor.
Mr. KEMPTHORNE. Mr. President, thank you.
The PRESIDING OFFICER. The Senator from Oklahoma.
Amendment No. 169 to Amendment No. 31
(Purpose: To ensure Federal agencies provide a written estimate of the
costs private sector mandates on the private sector during the
regulatory process)
Mr. NICKLES. Mr. President, I send an amendment to the desk and ask
for its immediate consideration.
The PRESIDING OFFICER. The clerk will report.
The legislative clerk read as follows:
The Senator from Oklahoma [Mr. Nickles], for himself, Mr.
Domenici, and Mr. Shelby, proposes an amendment numbered 169.
Mr. NICKLES. Mr. President, I ask unanimous consent that the reading
of the amendment be dispensed with.
The PRESIDING OFFICER. Without objection, it is so ordered.
The amendment is as follows:
At the end of the pending amendment, add the following:
(6) Notwithstanding any other provision of this Act, an
agency statement prepared pursuant to Section 202(a) shall
also be prepared for a Federal Private Sector Mandate that
may result in the expenditure by State, local, tribal
governments, or the private sector, in the aggregate, of
$100,000,000 or more (adjusted annually for inflation by the
Consumer Price Index) in any 1 year.
Mr. NICKLES. Mr. President, first, I wish to compliment the leaders
of this legislation, Senator Kempthorne and Senator Glenn, for their
patience and for their diligence in pursuing a piece of legislation
which I think is very much needed and is a very good piece of
legislation. They have taken giant steps toward eliminating unfunded
mandates on public entities.
This legislation says if we pass legislation, we should know how much
it costs on public entities, and if we are going to mandate something
on a public entity that if we do not provide the funding that a point
of order can be raised to stop that mandate. I think that is a good
step. We should know what it costs and, frankly, if we are not going to
provide the funding, we should have some capability to stop it, and
this legislation has done that and I compliment the authors.
The legislation also says that if we have legislation pending that
has a [[Page S1182]] negative or has an impact on the economy of over
$200 million on the private sector, that CBO should score it; CBO
should tell us what that impact is before it becomes final. I think
that is good. If we are going to pass legislation, if we are going to
make laws, we should know what its impact is on the economy before it
is too late. Maybe the impact is positive, maybe it is negative, but we
should know what it is. I think that makes us a lot more accountable.
Hopefully, it will make us better legislators. So I think that is a
very good provision.
The legislation also says that regulatory agencies, if they are going
to implement regulations that would have an impact on the public sector
of over $100 million, they should at least identify what that cost is.
So if you have the EPA or OSHA or if you have any other regulatory
agency make a regulation that has a negative impact or a positive
impact on the public sector--State, city governments--we should know
what that cost is if it exceeds $100 million.
The amendment that Senator Domenici and myself and Senator Shelby
offered, and in which others have an interest, would go a step further
and says if the regulatory agencies make a regulation that has a
negative impact on the private sector of over $100 million, we should
know what that cost is, too.
In other words, the legislation does a great job in identifying costs
and unfunded mandates from the legislators, from Congress, and it does
a good job from the regulatory side in at least identifying the costs--
not prohibiting it but at least identifying the costs from the
regulatory side--as it impacts the public sector, but it is silent
right now as far as the regulatory impact on the private sector.
That is what our amendment would do. It would say--and it does not
prohibit the regulatory agency from implementing it, it says they would
have to identify the cost.
I think it is a good amendment. It is one with which I hope my
colleagues can concur.
I thank my friend and colleague, Senator Domenici, for his leadership
because actually we have been working on this now for a couple of
years. This is supported very, very strongly by all the business
sector, all the private sector. I think it is an amendment that should
receive unanimous support.
Mr. KEMPTHORNE addressed the Chair.
The PRESIDING OFFICER. The Senator from Idaho.
Unanimous-Consent Request
Mr. KEMPTHORNE. Mr. President, I ask unanimous consent that there be
60 minutes of debate on the Nickles amendment No. 169, equally divided
between Senators Nickles and Glenn, and at the conclusion or yielding
back of time, a vote occur on or in relation to the amendment.
The PRESIDING OFFICER. Is there objection?
Mr. GLENN. Reserving the right to object--and I will object--we have
objection on our side to proceeding with that time limit at this time.
We might be able to agree to it later but not now.
The PRESIDING OFFICER. Objection is heard.
Mr. DOMENICI addressed the Chair.
The PRESIDING OFFICER. The Senator from New Mexico.
Mr. DOMENICI. Mr. President, I join Senator Nickles in urging the
Senate adopt this amendment. I do not know how many Senators have
participated with numbers of small business people in their States, but
I happen to be a fortunate one.
I set up a little project in my State. I called it Small Business
Advocacy Council, and asked five small business leaders to head it from
all over the State. Then we proceeded to invite groups of small
businesses to five different parts of New Mexico for 2 to 4 hours to
talk about the regulatory processes of this country as it applied to
their well-being, to their businesses, to their ability to have more
jobs and grow, and whether the regulations were reasonable and made
common sense.
I was absolutely dumbfounded to hear with almost one voice,
regardless from what sector--whether they were retailers, realtors,
manufacturers, service businesses--with one voice, they were saying
three things: One: ``Senator, the Federal Government's bureaucratic
agencies enforcing regulations treats us as if we are their enemies,
not constituents, not customers, not taxpayers, not small business
people earning a living and paying people, but as if we are their
enemies.''
I say this loud and clear: I do not have an answer to that. This
amendment will not answer that. But I tell you, it is part of this
great motion out there against big government. It is as much a part of
big government ought to get littler as the literal size of government
is being attacked.
Second, I regret to tell you that, again, with almost unanimous
feeling, the three agencies of this Government that are most
adversarial, less friendly, and thus for some less American happen to
be OSHA, the Environmental Protection Agency, and the IRS. Now,
frankly, I did not think the IRS was still in there since we reformed
the tax laws, but they are, I say to my friend. They are right up there
as the agency that treats people as if they were aliens, illegal,
enemies.
Then the second thing that was harmoniously spoken about, nobody has
a chance of looking at these regulations to see if they make sense and
to see how much they cost. They cited innumerable examples of both
unreasonable regulations and legislation that costs so much money that
if slightly changed toward common sense could dramatically reduce the
cost on people, on businesses, on our livelihood and our
entrepreneurial advantage called opportunity America.
The third was, why does not somebody look at these before they adopt
them--loud and clear--these regulations?
Now, again, we will through the year, under the leadership of Senator
Nickles and others, address these issues in a more specific manner as
we talk about overregulations, unpropitious regulations, regulations
that make no sense. But we can at least in this bill, which purports to
try to help small business in some way, require that we know how much
they are going to cost; that is, regulations to be promulgated and
rendered effective against American business, whether it be in Idaho,
Utah, Oklahoma, New Mexico, or New York.
All this amendment does is say to the regulatory processes of this
country, if a regulation is going to exceed $100 million, you must
weigh it and tell us about its economic disadvantages.
Now, frankly, some may say we are not going to be able to do that in
every case. We may not. But just as it is time to reorient our Federal
Government versus our cities and States and counties in something we
choose to call, again, refederalism, a new partnership, a return to the
10th amendment, which said we are not supposed to be doing so many
things up here, we ought to do the same thing for small business to the
extent that we can. We ought to be more understanding and more in
partnership with them than adversarial. And a very simplistic, but, I
believe, necessary approach to that, is to say these kinds of
regulations are going to be measured in terms of their dollar impact,
or cost is another way to say it, cost to American business, be it in
your State, Mr. President, or mine, or in California. All total, a $100
million impact is to be noted as to its effect on competitiveness, its
effect on other aspects so it is more apt to be vested with something
very, very simple, and that is that we understand before we do it
because we have some evaluations, so we act with knowledge.
If we acted with knowledge of the impacts, I do not think my group in
New Mexico, the small business advocacy group, in its four or five
hearings with a lot of business people, would be telling us the horror
stories we hear, nor would they be harboring the animosity, anger, and
anguish they hold toward their own Government today.
Anybody who thinks that does not exist is just not talking to them.
And anybody who thinks that is just because they do not want anybody to
tell them what to do on anything is just not talking to the responsible
business people I have been talking to. They just do not want to be
treated irresponsibly. They want to be treated responsibly.
While I say we are not going to do that with specificity, we are not
going to have a new approach to the whole regulatory process, we are
not going to have a new approach which I believe we should have to
receive input from those [[Page S1183]] affected, we are not going to
have statewide councils that might look at these regulations and report
before they become effective so we might have some common sense, these
are ideas that came out of these conferences of which I spoke. They are
good ideas. We ought to do them. We ought to even consider on the
regulatory process having them evaluated on an annual basis by an
outside group for customer satisfaction.
Every businessman that serves a lot of people does that, has a
private company come in and in a random way ask: Did we do what we said
when we said we would take your $138 and fix your car? Did we treat you
right? They get graded so the businessman knows if they are customer
friendly.
We do not have a chance of doing that with Federal regulations. Maybe
we will in the future. Let us take one small step today and put small
business in this bill. If we are going to affect them nationally over
$100 million, let us get the impact of that in ways that are
understandable. We may have to develop a few new techniques, but it is
sure worth it to get started down that path just as much as it is for
the public sector.
I thank the Senator for letting me join, and I yield the floor.
Mr. GLENN addressed the Chair.
The PRESIDING OFFICER. The Senator from Ohio.
Mr. GLENN. Mr. President, the problem of regulatory review is one
that goes across the length and breadth of the whole Government, as we
are all aware. We can pass all sorts of laws in the Senate or the
Congress, the House of Representatives, whatever; we can pass all sorts
of laws and then we pass them over to the executive branch to have the
rules and regulations written, and sometimes the way things come out is
completely different than what we expected when we passed the
legislation. So regulatory review is a most important item with which
we have to deal.
Now, I have been working in this area of regulatory review on the
Governmental Affairs Committee for a long time, for a number of years,
and I am very concerned about it. I compliment my colleagues from
Oklahoma and from New Mexico for the work they have done and the
interest they have taken in this particular area, and I think that is
great.
I had originally thought that perhaps I would oppose this on one
ground and that is--not on substantive grounds but on the fact that I
have legislation that will be in hearing on February 8 by the
Governmental Affairs Committee. It is S. 100. It is a bill that deals
with regulatory review in general all across Government. I hope we will
take a broad view of this and make more sense out of regulatory review
than the way we run it now.
We worked with IRA, Information and Regulatory Affairs, through the
years, and OMB, through the last two administrations and this
administration, and we hope that the new legislation will make more
sense out of regulatory review across the whole length and breadth of
Government, and make sure that we do not just let the regulation
writers proceed without some bridle on them as far as ignoring the
costs to public and private interests out there all across the country.
So, having said that, I am very, very sympathetic to what the
distinguished Senator from Oklahoma is trying to do here in making sure
that we get regulatory review.
Now, staff tells me that what Senators are proposing here is very
similar or nearly identical--very similar anyway to the Presidential
Executive order that deals with this same subject. We are checking that
right now. We are also checking with some of the people on our side who
we think might have a particular interest in this particular amendment,
and I will be able to give my colleague an answer as to whether we can
accept this shortly. I do not want to delay this. But unless he wanted
to talk or somebody else wanted to talk, I would just put in a quorum
call at the time until we get an answer back. I hope it will be just a
few minutes. It was my understanding in discussing this with my friend
from Oklahoma he would be willing to have a voice vote on this and we
could get on with other business.
The PRESIDING OFFICER. The Senator from Oklahoma.
Mr. NICKLES. Mr. President, I appreciate the comments from my friend
and colleague from Ohio. To answer a couple of his questions, I am
happy to have a voice vote. I am happy to proceed.
I have a hard time imagining anybody really opposing this amendment
because, as you mentioned, it may parallel what the administration is
trying to do. Certainly if regulatory agencies are going to have
mandates on the private sector in excess of $100 million, they should
at least identify it. I think in any of the regular reform bills that
will probably be included.
Plus the fact we are, in this legislation, telling the regulatory
agencies to identify the costs if they have an impact on the public
sector in excess of $100 million. Certainly, if they are going to do
that for the public sector, they should also do it for the private
sector. They can probably do it at one and the same time. A lot of
bills have impacts on both the public and private sectors. So I do not
even think it will be a duplicative effort. It will just be done.
Again, if a regulatory agency is going to take an action that has an
impact of over $100 million, for all practical purposes they should
have a cost estimate.
So I appreciate my colleague's interest in this. I also want to
compliment him and assure him and Senator Roth and others, Senator
Domenici, Senator Bond, Senator Hutchison, and others--a lot of people
have done a lot of work on regulatory reform. It is going to be very
extensive. I am looking forward to that.
And we are not doing that here. I am talking about cost-benefit
analysis, risk assessment, using science, as my friend and colleague
from Ohio has alluded to in the past. It is important that we use real
science in making some of our determinations.
I look forward to that debate and that bill, because I think it will
be a giant step, one that should be bipartisan and one that will help
rein in the excessive costs of regulation.
This particular amendment does not do anything to rein it in. It just
says it should be identified. That by itself might help rein it in. If
someone in the private sector disagreed with it, we could dispute it.
We could have a hearing. And if someone says this regulation from EPA
costs $500 million per year to the private sector, maybe the private
sector would come in and say, we disagree, it costs $3 billion. That
would be good interest, good information for people to have. This does
not stop the regulations from coming into effect. It just says they
should be identified. It is identical with the regulation on the public
sector. We think we should identify it for the private sector as well.
I know there was an interest a moment ago to have a 1-hour time
agreement. I told the managers of the bill that is not necessary for
this Senator. I think this is a commonsense amendment, readily
understood. Hopefully, it will be agreed upon.
Several Senators addressed the Chair.
Mr. GLENN. Mr. President, just one further comment. I see another
Senator seeking the floor here. Just one comment on this.
The only other caveat I had on this, this bill originally set out to
deal with unfunded Federal mandates. We now have gotten into public
overlap and so on, and we are into cross-pollination here in so many
areas.
I do not think this particular amendment breaks any new ground in
this. So I do not have any objection on that ground. We are going to
try to deal with a lot of these things, though, in the regular review
of S. 100.
I yield the floor.
The PRESIDING OFFICER. The Senator from Michigan.
Mr. ABRAHAM. Mr. President I also rise in support of the amendment.
As I think has already been articulated, the small businesses, and the
private sector more generally, of this country are heavily inundated
with burdens imposed by government and direct kinds of taxes and costs.
They are actually, I think, burdened by regulations that impose
mandates on them. So I believe the amendment is well in order and
should be supported.
Mr. President, I rise in support of S. 1, which, of course, addresses
the problem of unfunded Federal mandates. S. 1 would significantly
limit the Federal Government's ability to require State
[[Page S1184]] or local governments to undertake affirmative activities
or comply with Federal standards unless the Federal Government was also
prepared to reimburse the costs of such activities or compliance. As
with direct Federal expenditures, the financial burdens of such
mandates fall squarely upon the middle-class taxpayer. I strongly
commend Senator Kempthorne for continuing leadership on this issue and
for his sponsorship of S. 1.
Perhaps nothing better reflects contemporary trends in government
than the enormous growth in the level of unfunded Federal mandates over
the past two decades. An unfunded mandate arises when the Federal
Government imposes some responsibility or obligation upon a State or
local government to implement a program or carry out an action without,
at the same time, providing the State or local government with the
necessary funding. Several recent illustrations of unfunded mandates
include obligations imposed on States and localities to establish
minimum voter registration procedures in the Motor Vehicle Voter
Registration Act; obligations imposed on States and localities to
conduct automobile emissions testing programs under the Clean Air Act;
and obligations imposed on States and localities to monitor water
systems for contaminants under the Safe Drinking Water Act. These
examples, however, are only the smallest tip of the iceberg.
While there is virtually no area of public activity in which Federal
mandates are absent, such mandates are most visible in the area of
environmental legislation. Of the 12 most costly mandates identified by
the National Association of Counties in a 1993 survey, 7 of them
involve environmental programs such as the Resource Conservation and
Recovery Act, the Clean Air Act, the Clean Water Act, the Endangered
Species Act, the Safe Drinking Water Act, and the Superfund Act.
The negative effects of unfunded Federal mandates are at least
fivefold: First, such mandates camouflage the full extent of Federal
Government spending by placing an increasingly significant share of
that spending off-budget, in the form of costs imposed upon other
levels of government. While it is extraordinarily difficult to assess
the dollar costs of unfunded mandates, a sense of their magnitude is
evidenced by a 3-month study done earlier this year by the State of
Maryland, in which they concluded that approximately 24 percent of
their total budget was committed to meeting legal requirements mandated
by Congress. Assuming the rough accuracy of this estimation, and
assuming that Maryland is not subject to extraordinary levels of
mandates, this would amount to approximately $80 to $85 billion imposed
nationally upon all State governments. This figure does not include
mandates imposed upon local governments. To calculate the true burden
of Federal spending, the costs of these mandates must be added to an
already bloated Federal budget. The Federal Government consumes the
limited resources of the people every bit as much when it compels State
or local governments to do something as when it directly does something
itself.
Second, the impact of the unfunded Federal mandate is to distort the
cost-benefit analysis that Congress undertakes in assessing individual
pieces of legislation. The costs imposed by the Congress upon States
and localities are rarely considered, much less estimated with any
accuracy. As a result, the presumed benefits of legislative measures
are not viewed in the full context of their costs. Legislative benefits
tend consistently to be overestimated and legislative costs tend
consistently to be underestimated.
Third, unfunded Federal mandates burden State and local governments
with spending obligations for programs which they have never chosen to
incur while requiring them to reduce spending obligations for programs
which they have chosen to incur. For the options are clear when
mandates are imposed by Washington: Either State and local governments
must raise taxes--since they do not have the same access to deficit
spending as the Federal Government--or they must reorder their budget
by reducing or terminating programs which had already been determined
to merit public resources. With State balanced budget requirements and
with taxpayers already burdened to the hilt by government demands for a
share of their income, State and local governments are forced into a
zero-sum analysis by unfunded mandates; every new Federal mandate must
be compensated for directly by a reduction in another area of State or
local spending. Further, every Federal mandate must effectively be
treated as the number one spending priority by State and local
governments, notwithstanding the sense of their community and the
judgment of their elected officials. Such governments must first budget
whatever is necessary to pay for the mandates and only afterwards
evaluate the level of resources remaining for other spending measures.
Which leads to the fourth impact of the unfunded Federal mandate. An
increasing proportion of State and local budgets is devoted to spending
measures deemed to be important not by the elected representatives in
those jurisdictions, but rather by decisionmakers in Washington. In
1993, for example, compliance with Federal Medicaid mandates cost the
State of Michigan $95.3 million, which exceeded by $7 million the
combined expenses of the Michigan Departments of State, Civil Rights,
Civil Services, Attorney General, and Agriculture. Although the Supreme
Court in recent years has reduced the 10th amendment to effective
insignificance, I believe nevertheless that there are constitutional
implications to this trend. It is lamentable enough that the Federal
budget has grown at the pace that we have witnessed over the past
generation; for Washington additionally to be determining the budgetary
priorities of Michigan and Texas and Pennsylvania is for it to trespass
upon the proper constitutional prerogatives of the States. To the
extent that the States are straitjacketed in their ability to determine
the composition of their own budgets, their sovereignty has been
undermined.
Indeed, the Constitution aside, it is difficult to understand how a
reasoned assessment of the efficacy of Federal Government programs over
the past several decades would encourage anyone in the notion that
Washington had any business instructing other governments how best to
carry out their responsibilities.
Finally, unfunded Federal mandates erode the accountability of
government generally. The average citizen now finds that his State and
local representatives disavow responsibility for spending measures
resulting from Federal mandates, while his Washington representatives
also claim not to be responsible. Lines of accountability are simply
too indirect and too convoluted where Federal mandates are involved.
The result is that the citizenry come to feel that no one is clearly
responsible for what government is doing, and that they have little
ability to influence its course.
I am particularly supportive of S. 1 because I believe that it will
result in governments at all levels thinking more seriously about the
proper scope of government. In truth, unfunded mandates are but one
symptom of the more fundamental problem that the Federal Government has
lost sight of the proper scope of its functions. While there are some
mandates that are reasonable, Congress should be prepared to reimburse
the States for the costs attendant to such mandates. In cases where the
wisdom of mandates is more dubious, S. 1 would force upon Congress a
more balanced and a sober decisionmaking process. Instead of neglecting
the hidden pass-the-buck costs entailed in unfunded mandates, Congress
instead would be forced to make hard-headed decisions about the costs
and benefits of new programs. In at least some of these cases, I am
confident that the legislative balance will be drawn differently than
that we have consistently seen over recent decades. I am confident that
the virtues of federalism will be recognized more readily when new
programs are no longer free but must be explicitly accounted for in the
Federal budget. The one-size-fits-all mentality which tends to underlie
most Federal mandates may also be reconsidered in the process.
At the same time, State and local officials will also have to make
difficult decisions. With Congress likely to curtail or terminate
altogether some mandates when confronted with the requirement that they
have to pay for them, State and local governments will
[[Page S1185]] have to determine whether they are willing to support
such programs on their own. No longer will they be able to enjoy the
benefits of such programs while being able to divert responsibility for
their costs to the Federal Government. Rather, they will have to make
equally hard decisions as those that will have to be made by Washington
lawmakers about the relative merits of public programs.
Perhaps the greatest long-term benefit of the present legislation is
that it will force more open and honest decisionmaking and budgeting
upon all levels of government. When greater governmental accountability
is achieved, the public will be better positioned to punish and reward
public officials for actions. As a result, government will be more
responsive to the electorate in its spending decisions. Government, in
short, will be made more representative by this legislation.
Further, Federal bureaucracies themselves will have to be more
respectful of the costs that they impose upon State and local
governments. Currently, these bureaucracies give little or no
consideration to such costs because none of those costs are borne by
the agencies themselves. When the real costs of Federal regulation are
attributed to the agency responsible for such regulation, agencies will
gain an extraordinarily useful perspective on the burdens that they are
imposing on other levels of government.
Going beyond the present measure, I would hope that we will be able
to address several related matters in the near future. First, I do not
believe that the bar on unfunded mandates should be limited to future
initiatives. Given the burdens currently being borne by State and local
governments, I favor in certain instances the retroactive application
of the commonsense principle incorporated in this legislation. Second,
I favor legislation that addresses the problem of conditional mandates.
Conditional mandates arise when the Federal Government provides grants-
in-aid to the States with strings or conditions attached. While these
conditions may be reasonable and designed to ensure that money
dispensed is being utilized effectively, other conditions may be far
more tangentially related to the grants. I do not believe that Federal
grant programs should be used to circumvent the present legislation's
bar on direct Federal mandates. Therefore, I would support legislation
such as that offered by Senator Hatch, which would prohibit conditional
mandates unless they were directly and substantially related to the
specific subject matter of the Federal grants-in-aid.
Mr. President, by changing the rules of the legislative process and
forcing upon Congress more accountable decisionmaking, the present
legislation will, in my judgment, contribute greatly to a more
responsible and balanced legislative product. This measure is not
antienvironment, anti consumer safety, or antiregulation, as its
opponents have suggested. Rather, it is pro open and honest government
decisionmaking. If a majority of the Congress continues to support a
particular mandate, that majority has the unfettered discretion to
promulgate the mandate; they are constrained only in their ability to
hide the costs of the mandate and to obscure where governmental
responsibility lies for the mandate.
I ask unanimous consent to have printed in the Record several
resolutions and letters I have received from governmental bodies in
Michigan in support of this legislation. In view of the strong support
for this measure from the National Conference of State Legislators, the
National Association of Counties, and the National League of Cities, as
well as on the basis of my own conversations over the past year, I am
convinced that these writings reflect the overwhelming sentiment of
Michigan communities, as well as communities across the United States.
There being no objection, the material was ordered to be printed in
the Record, as follows:
City of Inkster,
Inkster, MI, January 5, 1995.
Re unfunded mandates.
Senator Spencer Abraham,
Dirksen Building,
Washington, DC.
Dear Senator Abraham: Unfunded Mandates have very
debilitating effects upon cities similar to Inkster. Perhaps
I should not repeat the litany of complaints that you have
already heard, but I am compelled to advise you of the
limiting factors which automatically places the City of
Inkster in a position of default under the existing rules and
regulations related to these unfunded mandates.
Inkster is mandated to erect three (3) retention basins in
regard to the Combined Sewer Operation program imposed by the
Federal Government.
Listed below you will find some very important factors
about the City of Inkster and how unfunded mandates affect
our community:
We have an annual General Fund Budget of only
$10,908,350.00;
By Michigan law we can levy no more than 20 mills Real
Property tax;
Our current levy is 19.52 mills;
Our water and sewer rates are controlled by the amount
charged by the City of Detroit and they are outrageous;
Our bonding capacity is such that our share ($23 million)
for the first basin has to be guaranteed by Wayne County to
the Michigan State Bond Authority and the State Revolving
Fund;
Additionally, Inkster must lease the land upon which the
basin will be sited for $1,500.00 per year;
I need not go on. You can see the untenable position that
we are in. I very strongly urge you to vote relief for all
cities caught in this impossible web by supporting and
seeking support to HB 5128 and SB 993 which will soon be
considered.
Very sincerely,
Edward Bivens, Jr.,
Mayor.
____
City of Taylor,
Taylor, MI, January 12, 1995.
U.S. Senator Spencer Abraham,
Dirksen Office Building,
Washington, DC.
Dear Senator Abraham: As Mayor of the City of Taylor, I
have watched with growing dismay the increase in unfunded
federally mandated programs. Congress should implement the
following provisions for any future legislation:
1. Require that state and local officials be afforded the
opportunity to provide meaningful input (given a real voice
in the planning.)
2. Require an assessment of costs and benefits associated
with the planning and/or implementation of any federally
mandated programs.
3. Federal funds should be budgeted/appropriated prior to
enactment of any such legislation.
Senator Abraham, if implemented these suggestions will go a
long way toward building a meaningful partnership between the
federal, state, and local governments, to better serve the
American people. I wish to commend you for your pro active
position on this vital issue and urge the support of your
colleagues.
Sincerely,
Cameron G. Priebe,
Mayor.
____
City of Muskegon,
Muskegon, MI, January 12, 1995.
Hon. Spencer Abraham,
State Senator,
Warren, MI.
Dear Senator Abraham: I appreciated the opportunity to talk
to you yesterday regarding my concerns about Unfunded Federal
Mandates and the burden they place on cities such as
Muskegon. These mandates create an undue burden that
compounds the problems and difficulties already encountered
by local municipalities. Therefore, I encourage you continued
efforts in eliminating unfunded mandates.
Thank you for your assistance in this very important
matter.
Sincerely,
James W. Pruim,
Mayor.
____
City of Wyandotte,
Wyandotte, MI, January 12, 1995.
Hon. Spencer Abraham,
U.S. Senator,
Washington, DC.
Dear Senator Abraham: I am writing this letter as a result
of the discussion I heard while watching C-SPAN this morning,
January 12, 1995, at approximately 10:00 a.m. This
discussion, which took place before a committee chaired by
Senator Nancy Kassabaum from Kansas, has prompted me to send
this FAX.
I thought Governor Thompson did an excellent job, however,
I was disturbed by the comments made by Democratic Senator
John Breaux from Louisiana and by Senator Ted Kennedy from
Massachusetts, whose statements indicated their apparent
distrust of the individual states. What I feel was really
said by these senators was that we at the local level of
government would not be sensitive to the needs of the poor
unless the programs developed to assist the poor were
designed in Washington. Where have they been?
Why do people in Washington feel that they are more honest
and do a better job than those of us on the firing line day
in and day out? As Governor Thompson suggested, let us design
our own projects and hold us accountable for the results
rather than having to abide by mandates written by
bureaucrats in Washington who are, in my opinion,
[[Page S1186]] out of touch with what goes on in our cities
on a daily basis.
Evaluate us based on our results rather than trying to pass
laws and make rules that reduce the flexibility we all need.
(Local) Government must have the authority to react more
quickly in order to serve the people that Senate Kennedy and
Senator Breaux, as well as the other senator from Minnesota,
thought we would ignore.
This letter is meant to be straightforward and direst so
there is no misunderstanding concerning my feelings about the
issue of unfunded mandates.
Sincerely,
James R. DeSana,
Mayor.
____
City of Dearborn,
Dearborn, MI, January 12, 1995.
Hon. Spencer Abraham,
U.S. Senator,
Washington, DC.
Dear Senator Abraham: In response to your initial request
for my opinion regarding national issues requiring immediate
attention, the issue of unfunded mandates stands out in my
mind as one with extremely direct consequences for local
governments.
According to studies conducted by Price Waterhouse,
unfunded federal mandates will cost local governments nearly
$90 billion over the next five years. Cities will pay about
$6.5 billion this year and $54 billion over the next five
years, while counties will incur costs totaling $4.8 billion
this year and $33.7 billion over the next five years.
I have attached a copy of a resolution that was adopted by
our City Council. The resolution attempts to focus local and
national attention on the threat unfunded federal mandates
pose to local budgets and local citizens. It urges our
representatives to force change in the way the federal
government considers future mandates.
I believe that any action on this issue that views local
governments as partners in the governance of this great
country will benefit all of us who call ourselves public
servants.
Respectfully submitted,
Michael A. Guido,
Mayor.
Resolution
Whereas: Unfunded federal mandates on state and local
governments have increased significantly in recent years
(according to Price Waterhouse, unfunded mandates will cost
local governments nearly $90 billion over the next 5 years);
and
Whereas: Federal mandates require cities and towns to
perform duties without consideration of local circumstances,
costs, or capacity, and subject municipalities to civil or
criminal penalties for noncompliance; and
Whereas: Federal mandates require compliance regardless of
other pressing local needs and priorities affecting the
health, welfare, and safety of municipal citizens; and
Whereas: Excessive federal burdens on local governments
force some combination of higher local taxes and fees and/or
reduced local services on citizens and local taxpayers; and
Whereas: Federal mandates are too often inflexible, one-
size-fits-all requirements that impose unrealistic time
frames and specify procedures or facilities where less costly
alternatives might be just as effective; and
Whereas: Existing mandates impose harsh pressures on local
budgets and the federal government has imposed a freeze upon
funding to help compensate for any new mandates; and
Whereas: The cumulative impact of these legislative and
regulatory actions directly affect the citizens of our cities
and towns; and
Whereas: The National League of Cities, following up on
last year's successful effort, is continuing its national
public education campaign to help citizens understand and
then reduce the burden and inflexibility of unfunded
mandates, including a National Unfunded Mandates Week,
October 24-30, 1994; therefore, be it
Resolved: That the City of Dearborn, by its Mayor and City
Council, endorses the efforts of the National League of
Cities and supports working with NLC to fully inform our
citizens about the impact of federal mandates on our
government and the pocketbooks of our citizens; be it further
Resolved: That the City of Dearborn endorses organizing and
participating in events during the week of October 24-30,
1994, and throughout the year; be it further
Resolved: That the City of Dearborn resolves to continue
our efforts to work with members of our Congressional
delegation to educate them about the impact of federal
mandates and actions necessary to reduce their burden on our
citizens.
____
City of St. Clair,
St. Clair, MI, November 9, 1994.
Senator Elect Spencer Abraham,
Senate Office Building,
Washington, DC.
Dear Mr. Abraham: Enclosed with this letter is a resolution
adopted by the St. Clair City Council on Monday, November 7,
1994. The resolution details the City of St. Clair's stance
on Unfunded Federal Mandates and the need for Congress to
address this matter.
Also included is a pledge to vote on legislation which
addresses Unfunded Federal Mandates. I, the members of the
City Council and the residents of the City of St. Clair ask
that you please sign the attached pledge to push for a vote
on the unfunded federal mandates legislation. Please return a
signed copy of the pledge to me at the following address:
Bernard E. Kuhn, Mayor, City of St. Clair, 411 Trumbull
Street, St. Clair, Michigan 48079.
Thank you in advance for your attention to our concerns. If
you have any questions, please do not hesitate to contact me.
Sincerely,
Bernard E. Kuhn,
Mayor.
Resolution No. 94-54
Whereas, unfunded federal mandates on state and local
governments have increased significantly in recent years; and
Whereas, federal mandates require cities and towns to
perform duties without consideration of local circumstances,
costs or capacity, and subject municipalities to civil or
criminal penalties for non-compliance; and
Whereas, federal mandates require compliance regardless of
other pressing local needs and priorities affecting the
health, welfare and safety of municipal citizens; and
Whereas, excessive federal burdens on local governments
force some combination of higher local taxes and fees and/or
reduced local services on citizens and local taxpayers; and
Whereas, federal mandates are too often inflexible, one-
size-fits-all requirements that impose unrealistic time
frames and specify procedures or facilities where less costly
alternatives might be just as effective; and
Whereas, existing mandates impose harsh pressures on local
budgets and the federal government has imposed a freeze upon
funding to help compensate for any new mandates; and
Whereas, the cumulative impact of these legislative and
regulatory actions directly affect the citizens of our cities
and towns; and
Whereas, the National League of Cities, following up on
last year's successful effort, is continuing its national
public education campaign to help citizens understand and
then reduce the burden and inflexibility of unfunded
mandates; now, therefore, be it
Resolved, That the City of St. Clair endorses the efforts
of the National League of Cities and supports working with
NLC to fully inform our citizens about the impact of federal
mandates on our government and the pocketbooks of our
citizens; and
Be it further resolved, That the City of St. Clair endorses
organizing to receive a written pledge from our
representatives in Washington to vote on federal relief from
unfunded mandates; and
Be it further resolved, That the City of St. Clair resolves
to continue our efforts to work with the members of our
Congressional delegation to educate them about the impact of
federal mandates and actions necessary to reduce their
burdens on our citizens.
Unfunded Federal Mandates Week Pledge
I pledge to the voters and taxpayers of the City of St.
Clair to ensure a vote in Congress on federal unfunded
mandates relief legislation for state and local governments
before April 1, 1995.
If we in Congress fail to have a recorded vote to
demonstrate accountability by that date, I pledge to submit a
written report to the Mayor and Council of the City of St.
Clair specifically detailing my efforts and the specific
steps I will take to ensure action.
Signed: .
____
Michigan Townships Association,
Lansing, MI, January 12, 1995.
Hon. Spencer Abraham,
U.S. Senator,
Washington, DC.
Dear Senator Abraham: The Michigan Townships Association
urges your yes vote on S. 1, the Unfunded Mandates Reform
Act. On behalf of all Michigan township officials, I also
encourage you to resist any and all amendments that would
weaken the intent of this proposed legislation.
Michigan has had a state law since 1978 designed to prevent
the imposition of mandated costs on local governments. During
its passage, however, 15 or more ``loopholes'' were written
into the language that weakened the intent of the Bill.
Please hold the line against these attempts to water down the
intent of S. 1.
Sincerely,
John M. La Rose,
Executive Director.
Mr. NICKLES. Mr. President, I wish to congratulate the Senator from
Michigan for an outstanding speech, a relatively new Member to our
body, but as evidenced by his speech and by his work in the Senate this
month he in my opinion will prove to be an outstanding asset to the
State of Michigan without any doubt and certainly to this body and to
our country.
So I compliment him on his remarks. I thank him very much for his
support of our amendment as well.
The PRESIDING OFFICER. Is there further debate on the amendment?
Mr. LEVIN addressed the Chair.
The PRESIDING OFFICER. The Senator from Michigan is recognized.
Mr. LEVIN. Mr. President, I thank the Chair.
Mr. President, I wanted to ask a question of my friend from Oklahoma
about the meaning of his amendment. [[Page S1187]] As I understand it,
the statement that would be required to be prepared, pursuant to
section 202(a), if this amendment is adopted, would have to be prepared
for either the private sector or the public sector providing they reach
in either case $100 million annually adjusted for inflation. Is that
correct? In other words, if the public sector mandates the cost of $100
million in any one year, that will trigger the reform.
Mr. NICKLES. The Senator is correct.
Mr. LEVIN. If the private sector mandate is $100 million more, that
would trigger the reform.
Mr. NICKLES. The Senator is correct.
Mr. LEVIN. But if they were both $60 million, there would not be a
report triggered.
Mr. NICKLES. The Senator is correct again.
Mr. LEVIN. I thank the Senator for that clarification.
I have one other question. Perhaps my friend from Ohio will want to
help on this. There could be an easy answer to it. In any 1 year, is
that any one of the 5 fiscal years that are estimated, or is that any 1
year? When? Anytime, ever? What does that 1 year reference? I am sorry
I did not have a chance to ask it of either Senator before. I am asking
this on the floor. Perhaps we could get an answer to that later. I am
just not sure what that means, ``1 year.''
Mr. NICKLES. Mr. President, just looking at the language on page 35
of the bill, that is really where we are amending the section, that
section 202, that is the one which defines the call for reports.
Basically it says the report shall be issued if you have regulatory
impact of in excess of $100 million or the public sector in any one
year. I would think that would be any one calendar year. Regulatory
agencies would be analyzing the cost of their changes, and they would
have an annual cost. They may do an annual cost over several years. My
guess would be that would be in any one particular calendar year. That
is just my reading. We did not amend that language. We just included
private sector in our amendment.
Mr. LEVIN. I thank the Senator from Oklahoma for that. Maybe I should
address this then to the managers. What does the reference ``any one''
year mean, on line 15, page 35? Is that any one year, ever? Is that any
one year of the 5 years of the 5 fiscal years? What is that reference?
Mr. KEMPTHORNE. Will the Senator yield?
Mr. LEVIN. I would be happy to.
Mr. KEMPTHORNE. I apologize. Will the Senator repeat the question?
Mr. LEVIN. My question is this: On line 15, page 35, there is a
reference to the $100 million which the Senator from Oklahoma is now
amending to apply to either public or private. And my question that
properly should have been addressed to the Senator from Idaho is: Is
that 1 year, 1 year of the 5 fiscal years for which the estimate is
being made? Or is that some other reference? I assume that means a
fiscal year, too. I am trying to clarify what the reference is.
Mr. NICKLES. If the Senator will let me respond, again, I think you
are right. The reference is to the legislation. My guess is that the
regulatory agencies would determine the fiscal impact. I would think
they would do it not on fiscal year but on calendar year--I may be
incorrect--and that if the regulatory impact exceeded $100 million, as
adjusted for inflation in subsequent years, then they would have to
identify the costs.
Again, I do not see that as a big burden. If you are going to have a
regulatory impact on the public sector in excess of $100 million, they
should know it and identify it. If they are going to have a regulatory
impact on the private sector in excess of $100 million, for subsequent
years--my colleague mentioned 5 years, and I do not know what
regulatory agencies--we do 5-year budgeting, although not very well.
But I do not know that when they issue those regulatory statements,
they automatically cover 5 years. I am not sure.
Mr. LEVIN. While we are on this line--I am wondering, while we are
focused on this one line of the bill, I have not had a chance to ask my
friend from Idaho this question either. Is the reference to ``adjusted
annually for inflation,'' adjusted from the effective date of the law,
so that if the law is effective January 1, 1996, that that is the
baseline for the $100 million, and then if it is 3 percent inflation,
on January 1, 1997, this then will reread $103 million? Is that the
intent of the Senator from Idaho?
Mr. KEMPTHORNE. In response to the Senator, Mr. President, that is my
understanding of the intent, yes.
Mr. LEVIN. I thank the Senator.
The PRESIDING OFFICER. Is there further debate on the amendment?
Mr. GLENN. Mr. President, I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The legislative clerk proceeded to call the roll.
Mr. GLENN. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. GLENN. Mr. President, we have finished checking on our side, and
we would be glad to accept the amendment of the distinguished colleague
from Oklahoma. As I said earlier, we will be addressing this same
regulatory review problem in the Governmental Affairs Committee with
the hearing on S. 100, which is legislation I put in on a broader gauge
of regulatory review consideration. We welcome the Senator's input on
that, so we can work this out together. We would be happy to accept his
amendment on this side.
Mr. KEMPTHORNE. Mr. President, we also would be very supportive of
accepting this amendment. We thank the Democratic side for the
agreement. We commend Senator Nickles and Senator Domenici for their
work on this. It is an important addition to the bill.
Mr. NICKLES. Mr. President, I thank my friends from Idaho and Ohio,
as well as Senators Domenici and Shelby. I appreciate their
cooperation.
The PRESIDING OFFICER. Is there further debate?
The question is on agreeing to the amendment of the Senator from
Oklahoma.
The amendment (No. 169) was agreed to.
Mr. KEMPTHORNE. Mr. President, I move to reconsider the vote.
Mr. GLENN. I move to lay that motion on the table.
The motion to lay on the table was agreed to.
Mr. LEVIN addressed the Chair.
The PRESIDING OFFICER. The Senator from Michigan [Mr. Levin] is
recognized.
Amendment No. 170
(Purpose: To include gender in the statutory rights prohibiting
discrimination to which the Act shall not apply)
Mr. LEVIN. Mr. President, I send an amendment to the desk and ask for
its immediate consideration.
The PRESIDING OFFICER. The clerk will report.
The legislative clerk read as follows:
The Senator from Michigan [Mr. Levin], for himself, Mr.
Glenn, Mr. Kempthorne, and Mr. Grassley, proposes an
amendment numbered 170.
The amendment is as follows:
On page 12, line 18, insert ``age'' after ``gender,''.
Mr. LEVIN. Mr. President, this bill has certain exclusions in certain
areas where sponsors of the bill have determined that it should not
apply. Section 4 on page 12 reads that ``The provisions of this act and
the amendments made by this act shall not apply to any provision in a
bill, or joint resolution before Congress, and any provision in a
proposed or final regulation that''--and then there is a list of six
exclusions. These are important exclusions, because what the bill would
do is to say where any of these six things exist, no point of order
would lie, and there is not going to be any presumption that a mandate
has to be funded in order to apply to State and local governments. For
instance, if a mandate enforces the constitutional rights of
individuals, that mandate is going to apply to State and local
governments and there is not going to be any presumption of
nonapplicability in the absence of a mandate.
The next exclusion under section 4 is, ``If the bill or the joint
resolution establishes or enforces any statutory rights that prohibit
discrimination on the basis of race, religion, gender, national origin,
or handicap or disability status.'' [[Page S1188]]
It is that exclusion that I believe is deficient, and it is that
exclusion to which my amendment is addressed. We have laws that protect
people against age discrimination, which are very vital laws in this
country.
Those laws have been fought over, fought for, and they are vital to
Americans. We have mechanisms to enforce that antidiscrimination law.
And it is important that age discrimination be placed in the same
paragraph and also excluded from this bill's applicability and that we
also require State and local governments to carry out the national
purpose of no discrimination based on age.
Just as we have said that where there is a statutory right that
prohibits discrimination based on race or religion or gender or
national origin or handicap or disability status, this law is going to
not be applicable. A mandate, even if it is unfunded, is going to apply
to State and local governments where it establishes or enforces rights
that prohibit discrimination based on any of those factors.
So this amendment would add the word ``age'' to that subsection 2 so
we would protect age discrimination laws the way we do other
discrimination laws and we would apply age discrimination laws to State
and local governments without any presumption that they would have to
be given the funds in order to implement this mandate.
That is the heart of this amendment.
I know that the managers have accepted the amendment, since both of
them are cosponsors of it. I understand that the Senator from Ohio,
however, may have a modification to it and that he may want to address
that.
Mr. GLENN addressed the Chair.
The PRESIDING OFFICER. The Senator from Ohio.
The Chair would advise the Senator from Michigan that the amendment
is out of order.
Mr. LEVIN. I thank the Chair.
I am wondering if we could note the absence of a quorum so we could
discuss this.
Mr. GLENN. Perhaps we could go ahead and I could discuss this without
it being out of order while we get an input from a couple other
Senators that have an interest in it. If we could discuss it until we
get that information, we might just save a little time.
The PRESIDING OFFICER. Is there objection? Hearing none, the Senator
from Ohio is recognized.
Mr. GLENN. I thank the Chair.
Let me congratulate my friend from Michigan. He has not been pointed
out much on this whole bill, but there is no one who has looked into
this in any more detail and with real detail on specific wording and
taking an active part and making sure that this legislation, if passed,
is going to be workable--workable. And that is the important thing of
having someone like the Senator from Michigan, who does look into
details. We, too, often pass things out of here that do not have that
kind of scrutiny and we wind up regretting later that we really did not
take time to go into details.
In committee, in considering this legislation the other day when we
were brushed aside pretty much in the committee by party-line votes, he
was trying to lead the charge there on making sure that the language
was workable, that we corrected errors in the bill, and that we made it
as workable as possible.
Now, that was not possible in committee, but he is continuing that
effort here on the floor. He certainly deserves every credit for what
he has been doing on this, and I am the first to acknowledge that. He
has really been a tiger in seeing that this thing was done properly,
and I want to commend him for that.
I think, once again, he has come up with the suggestion here where
age was left out. In almost all the legislation we pass now, we make
sure that these areas of minority discrimination, of age and
disabilities and so on are left in the bill.
I had originally planned to put in an amendment on this myself. My
amendment would have been a little more broad than the one that the
Senator from Michigan has proposed. My amendment would have said,
``that prohibit discrimination on the basis of race, color, religion,
sex, national origin, age, handicap, or disability.'' So in one line it
was taking a little broader sweep than just correcting age.
I believe, in the original planning of the bill, that color was also
left out. And that is normally considered as part of our standard
litany in new legislation with regard to those people we wish to
protect within our society.
Mr. President, with the parliamentary situation being what it is, I
cannot offer a second-degree amendment to the amendment that the
distinguished Senator from Michigan has proposed. I submit to him, I
wonder if he might prefer to swing the little broader loop that I was
going to propose with my amendment and perhaps, if he wished to modify
his amendment with some of this language, that would take care of not
only the age but the color that was also left out and in one line then
include the things we normally include in it. And it would read, then,
``that prohibit discrimination on the basis of race, color, religion,
sex, national origin, age, handicap, or disability.''
I yield the floor.
Mr. LEVIN addressed the Chair.
The PRESIDING OFFICER (Mr. Frist). The Senator from Michigan.
Mr. LEVIN. Mr. President, first, let me thank my good friend from
Ohio for his very fine comments. His leadership on the Governmental
Affairs Committee has been extraordinary over the years. He is now
ranking member. He has continued to not only insist on legislation
which is workable, as he phrases it, which is so important, but he has
also fought hard to protect the rights of all the members of that
committee so that we would have an opportunity to offer amendments.
I would remind this body that the Senator from Ohio is a chief
cosponsor of this legislation and was the principal sponsor of last
year's legislation, which was somewhat different but not greatly
different and aimed at exactly the same purpose. So he is an expert on
this subject of unfunded mandates and has been a leader in the fight to
try to reduce the number of unfunded mandates.
Whatever is easier, I would be happy either to modify the amendment
or that it be second degreed as soon as we can get clearance that I can
make my amendment in order by asking that the committee amendment be
set aside so that it be in order.
Mr. BYRD. Mr. President, is the Senator making that request?
Mr. LEVIN. Mr. President, I ask unanimous consent that the committee
amendment be laid aside so that the amendment which I sent to the desk
be in order. I understand it is not in order and I understand why. So I
do ask unanimous consent that the committee amendment be laid aside for
that purpose and then apparently it would again become the pending
business as soon as this amendment and its modification were disposed
of.
Mr. BYRD. Mr. President, reserving the right to object; of course, I
will not object.
Mr. President, as I say, I have no objection and will not object, but
I want to compliment the Senator for a trait that I discovered many
years ago about this Senator from Michigan. He goes over matters with a
fine-tooth comb. He is meticulous. He is a meticulous, careful
craftsman. And I have said this to him privately on several occasions.
I congratulate him. I want to do it publicly.
And also I think this points out the beneficial effects of proceeding
with a little more care, taking a little more time and not acting in
quite so much haste. It underlines what I said a number of times, that
we need to slow down and take a look and carefully examine what we are
doing. And it seems to me that in this instance we can feel assured
that we did the right thing. I congratulate the Senator.
Is the Senator going to ask for the yeas and nays?
Mr. LEVIN. Mr. President, I believe they will accept this amendment.
If they do, in this case I will not ask for the yeas and nays unless
there are others that would request the yeas and nays. I believe the
managers have accepted this and, indeed, have cosponsored it. In this
instance I will not ask for the yeas and nays. But there may be others
who would want the yeas and nays.
Mr. KEMPTHORNE. Would the Senator yield?
Mr. LEVIN. I yield.
[[Page S1189]]
Mr. KEMPTHORNE. That is correct, Mr. President. We are certainly
supportive of accepting this amendment and would state that I agree
with the Senator, that there was no intention to leave out these
classes. In fact, we had discussed that they would be included in the
managers' amendment. I think this is very appropriate to proceed with
this amendment as proposed by Senator Levin.
I would point out also when we think about the pace, that the
language that we have in S. 1 dealing with this is the identical
language that was in Senate bill 993 last year that went through
committees in both the Senate and the House. This was not addressed.
Again, it was not done intentionally. This is appropriate to correct
it. We appreciate the Senator from Michigan.
Mr. LEVIN. Mr. President, I do not know if I have the floor or not.
The PRESIDING OFFICER. The Senator from Michigan has the floor.
Mr. LEVIN. Mr. President, let me say to my friend from West Virginia
that he is the legislative craftsman par excellence, as far as I am
concerned. And he has been a role model in this regard, reminding all
Members of the importance of taking the time to craft laws which will
work in the real world.
There are times we have the best of intents and we have the worst of
unintended consequences. We have to take the time to work through bills
such as this. That is a different bill from last year in very
significant ways. He has been a role model, indeed, in this area for me
and to the extent that I got involved with nuts and bolts, as he has
pointed out.
I am grateful for his comment. It is in large measure because there
have been a lot of people who have set a standard in this area, that I
think is very important for me to follow. I am thankful for the
comments.
Mr. BYRD. Will the Senator yield?
Mr. President, I think it is important to the extent that it ought it
to be given public recognition. The kind of public recognition that is
given to a rollcall vote. We have had rollcall votes on matters of
lesser importance, at least in my view. I am just looking at it from
one man's vantage point. I think we ought to have a rollcall vote on
it. This is an important amendment. At some point in time we ought to
do that.
I have not made the request, but I will make the request at the
appropriate time.
The PRESIDING OFFICER. The request made by the Senator from Michigan
is pending.
Mr. LEVIN. Mr. President, if the majority leader would just withhold,
I have a pending unanimous-consent request that they have not yet ruled
on, that the committee amendment be set aside in order that my
amendment, as modified by the Senator from Ohio, be in order. That was
a pending unanimous-consent request, and I am wondering if the majority
leader might withhold to see if there is any objection to that.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. LEVIN. Mr. President, I thank the Chair and I thank the majority
leader.
The PRESIDING OFFICER. Is there further debate on the amendment?
Mr. DOLE. The Senator from West Virginia has the floor. I want to
make an inquiry.
If the yeas and nays are ordered, I wonder if we might have that vote
occur at about 8:30. I think a lot of people left with the
understanding there might be debate but no vote. I will check with the
Democratic leader. I do not have any quarrel with the rollcall. Maybe
we can have a couple more amendments by that time, too.
Mr. BYRD. Mr. President, I certainly have no problem with that.
May I say to the distinguished leader I felt that this is a very
important amendment. We will have this bill, it is very important to a
lot of people in this country. The word ``age'' and other words, that I
understand the Senator from Michigan and the Senator from Ohio are
interested in. It gives the public recognition to an amendment just
that important. A rollcall vote is more noticed in conference with the
House, as well, than a voice vote. It also shows that this bill is
being improved by our taking a little time. By our taking a little
time, studying the bill, debating, probing. So we are making some
improvements.
Would the distinguished majority leader like to lock in the vote at
this point?
Mr. President, while we are on this amendment, I ask for the yeas and
nays.
The PRESIDING OFFICER. Is there a sufficient second?
There is a sufficient second.
The yeas and nays were ordered.
Mr. GLENN. Mr. President, I suggest the absence of a quorum.
The PRESIDING OFFICER. The Clerk will call the roll.
The bill clerk proceeded to call the roll.
Mr. ROBB. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. ROBB. Mr. President, I ask unanimous consent, although it is not
necessary, that we turn to a period of morning business for about 7
minutes.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. ROBB. Mr. President, thank you.
The Senator yields to the Senator from Ohio.
Amendment No. 170, as modified
Mr. GLENN. If the Senator would yield for a moment. When we sent the
Levin amendment to the desk, it did not have the changed language that
I suggested. He was changing his own amendment. The copy that was sent
to the desk was not the proper copy. We would like to modify that
amendment, and since the yeas and nays have been ordered that would
normally not be in order.
I would ask unanimous consent that Senator Levin be permitted to
modify his amendment.
The PRESIDING OFFICER. Without objection, it is so ordered.
The amendment will be so modified.
The amendment (No. 170), as modified, is as follows:
On page 12, strike lines 17 through 19 and insert ``that
prohibit discrimination on the basis of race, color,
religion, sex, national origin, age, handicap or
disability;''.
Mr. GLENN. I yield the floor.
The PRESIDING OFFICER. The Senator from Virginia.
____________________