[Congressional Record Volume 141, Number 12 (Friday, January 20, 1995)]
[Senate]
[Pages S1262-S1265]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




               END DELAY ON UNFUNDED MANDATES LEGISLATION

  Mr. SMITH. Thank you, Mr. President.
  Mr. President, the bill that has been before the Senate for 8 days 
now basically has been delayed and stalled, is very important business 
for the people of the United States of America and certainly many 
communities around the country who suffer from the unfunded mandates 
that they have to comply with.
  I want to discuss that legislation today for a few minutes and also 
to say that I sincerely hope that in the very near future, hopefully 
some time early next week, that we will be able to pass that 
legislation and get it on through the House and the Senate and get it 
to the President. Hopefully he will sign it. This is a major piece of 
legislation that the majority, overwhelming majority of the American 
people support.
  I do not understand why we are delaying it. Apparently there seems to 
be, based on those we talk with, a great number of people on the other 
side of the aisle who say they support the bill yet when it came down 
to signing the petition for cloture, we did not get much help at all. 
Indeed, we only had one vote. I find a strange inconsistency here that 
those who say they support the legislation cannot bring themselves to 
bring the legislation to a vote. I think sometimes we get criticized 
here for not being able to accomplish anything and the American people 
look at this and say, why is it that a Senator, perhaps my own Senator, 
would say, ``I am for this bill but I do not want us to vote on it.''
  When we get criticized out there in the public, we really should not 
wonder why that happens. There is nothing wrong with debate. All 
Senators have every right to debate this legislation as long as they 
wish. Certainly, I stand here today before one of the most historic 
desks in the U.S. Senate. This desk belonged to Daniel Webster, one of 
the few original desks in the Senate.
  Daniel Webster, of course, at one time represented New Hampshire in 
the House, was born in New Hampshire, and represented Massachusetts in 
the U.S. Senate, one of the greatest orators of the pre-Civil War time. 
He certainly stood on the floor of the U.S. Senate before this desk and 
debated many of the great issues of the day and, I am sure, frustrated 
a lot of people on the other side. That is the way it should be. That 
is what the Senate is. There is nothing wrong with that. I do not 
criticize that in any way.
  I will say that this is an issue, the unfunded mandate issue, that is 
so overwhelmingly supported by the people in this country--I hesitate 
to say this, but I think it is true--that the American people, I think, 
are going to exact a price from those who delay it. I think they do it 
under grave risks.
  This legislation places, very interestingly, increased and added 
responsibilities on those who want to create the new mandate. It would 
also increase the cost of an existing one. In other words, they must 
get an estimate of the cost of the new requirement to both State and 
local government and the private sector and provide the 
[[Page S1263]] funds needed for the State and local governments to 
comply with the change. So it puts the responsibility on those who want 
to produce the mandates.
  It is a very important piece of legislation that is going to provide 
not only relief from the unfunded mandates--that is a very general way 
of saying it--but it is also going to provide relief for the taxpayers, 
the local and State taxpayers who have to pay for this when the Federal 
Government puts the mandate in and does not fund it. Those are the 
people who are going to benefit from this bill. Those are the people 
who need relief. When we pass a piece of legislation without funding it 
and insist that the local community pay for it, what has to happen? 
Money does not come from heaven. It has to come from the taxpayers. It 
is extracted involuntarily from those taxpayers in those local 
communities.
  These local communities, Mr. President, all over the country are 
speaking out to us saying, ``Pass this bill.'' It is enthusiastically 
endorsed by the U.S. Conference of Mayors, National League of Cities, 
Council of State Governments, National School Boards Association, U.S. 
Chamber of Commerce, National Governors Association--and on and on--
National Association of Counties.
  This information has been stated on the floor during the debate, but 
it is interesting, one quote comes from John Motley, the vice president 
of NFIB, who strongly supports S. 1, who said:

       It was not the cities and States who paid roughly $10 
     billion in unfunded mandates during the 1980's. It was the 
     taxpayers, small business owners as well as everybody else. 
     In June 1994, a poll of all NFIB members resulted in a 
     resounding 90 percent vote against unfunded mandates.

  Even the Democratic Governor, who is the chairman of the National 
Governors Association, Gov. Howard Dean, said:

       We begin the 104th Congress with S. 1, the Unfunded Mandate 
     Relief Act of 1995, which is a major priority for all State 
     and local officials. We have reviewed the new bill, drafted 
     in full consultation with all our organizations, and strongly 
     support its enactment.

  So it is bipartisan support that we have--support from communities, 
from selectmen, from mayors, from Governors, from taxpayers all across 
America in every State and hamlet. It is one of the most overwhelmingly 
supported pieces of legislation in recent time. Yet, here it is bottled 
up in the U.S. Senate for 8 days. We are essentially doing no business 
today, other than debating it and offering amendments. We are in 
morning business, which means we do not have to debate it. I choose to 
debate it because I think it is important. That is why I am here. The 
majority leader, to his credit, sought on the floor last evening to get 
support to bring this thing to a head, and I hope that this will happen 
in the next few days and that we will see a vote.
  In talking about unfunded mandates, it really is an interesting 
dichotomy, just the very fact that we are here to try to repeal 
unfunded mandates or to stop future unfunded mandates, as this bill 
specifically does, because we always hear experts, if you will, 
constitutional experts, telling us what the Founding Fathers intended 
or what they did not intend. It is always very interesting. I would be 
fascinated to see people like Thomas Jefferson and James Madison and 
George Washington and Alexander Hamilton, John Jay, and others come 
here and listen to the debate that goes on in this Chamber regarding 
what they thought these gentlemen really believed and what they were 
saying in the remarks that they made. It is interesting the way we 
twist and turn these remarks.
  If you take them literally, there is not any doubt. Let us listen to 
Thomas Jefferson:

       When all government, domestic and foreign, in little as in 
     great things, shall be drawn to Washington as the center of 
     all power, it will render powerless the checks provided of 
     one government on another and will become as venal and 
     oppressive as the government from which we separated.

  It does not get any clearer than that. Jefferson was saying that we 
left England, we separated from the Government of England for this very 
reason. They created a government here where they did not want all of 
the power in Washington, and they made it very clear in the 10th 
amendment to the Constitution that all power would not be in 
Washington. Yet, here we are debating a bill that we want to pass to 
eliminate unfunded mandates which we really should not have in the 
first place. That is exactly where we are.
  The 10th amendment is the constitutional embodiment of Jefferson's 
belief in a limited Federal Government, respectful of the rights of the 
States. How are we being respectful to the rights of the States, Mr. 
President, when we simply put unfunded mandates on them telling them 
they must do this without the money? That is not being respectful. With 
all due respect, that is being disrespectful. Of course it is being 
disrespectful, and we have been doing it to the States and the 
communities all across this country for years in education, 
environment, you name it, we have done it to them and they know it. 
That is why we have so much support, so much grassroots support from 
all over America, at the levels that I discussed, coming back and 
saying to us, ``Get this off our backs, we are sick of it, we are tired 
of it. We want it off our backs.''
  What does the 10th amendment say? Again, we get all these 
interpretations. Let us read it. It is very simple:

       The powers not delegated to the United States by the 
     Constitution, nor prohibited by it to the States, are 
     reserved to the States respectfully, or to the people.

  Yet somebody somewhere along the line at some course in our history 
has come up with this terrible idea, stupid idea that this is wrong and 
that we ought to be able to provide unfunded mandates to the States and 
communities. This is in direct conflict with the 10th amendment. But 
all these great legal scholars and constitutional scholars and probably 
some of our predecessors on the floor of this body thought otherwise 
and basically took the 10th amendment and tore it up as if it did not 
exist. And there it goes. So here we are now trying to get this 
corrected.
  That is what went wrong. When did this start happening? We can go 
back to the New Deal. Ever since then, the Federal Government has 
increasingly encroached upon fiscal and constitutional prerogatives of 
the State and local governments. When you put a mandate on a State, on 
a community, you force the taxpayers to pay for it. That is where it 
comes from. The State and local government has no choice but to 
increase those taxes. So you are mandating a tax increase on a small 
community, whether it is in Indiana or New Hampshire or Georgia or West 
Virginia, or wherever.
  This is exactly what Jefferson warned us against. Very clearly he 
warned us against it: Do not draw all the power to Washington, for the 
same reason they did not want all the power drawn to England or to a 
monarch or to a tyrant. They were afraid of it. They feared it. That is 
why they came here and built this country. That is why they wrote the 
Constitution, because they did fear it. That is why they disseminated 
the power among the three branches of government as they did, and 
between the States and the Federal Government.
  These States were reluctant to create this country from the 
Constitution. The Federalist papers by Madison and Jay and Hamilton 
were particularly written to convince the people to write the 
Constitution.
 They had to be persuaded because they were afraid to give up their 
State and community rights. That is why the 10th amendment was put in 
the Constitution, my colleagues.

  Unfunded Federal mandates impose enormous costs on the States. 
Nationwide examples are all over the place. The U.S. Conference of 
Mayors recently reported that the Clean Water Act alone mandated costs 
on the cities with populations greater than 30,000 more than $3.6 
billion in 1993.
  Now, our opponents will say, ``What's wrong with the Clean Water 
Act?'' I am not opposed to cleaning up the water in the United States. 
I do not think there is a citizen in America who wants to drink dirty 
water or swim in dirty water. The issue is not that. The issue is 
should this Congress, this Government, pass laws that mandate that be 
done without providing the dollars? Did they ever stop to think that 
maybe a community of a few hundred people cannot raise that kind of 
money out of the taxpayers? It is not there.
  That is what is wrong. That is why the American people voted the way 
[[Page S1264]] they did on November 8, 1994--because they are sick of 
it. They are sick of it. They want it changed. They made it very clear.
  Now, from 1994 through 1998, the Conference of Mayors reports 10 
Federal mandates that they studied--10, just 10 Federal mandates, 
unfunded some of them--will cost $54 billion. The Clean Water Act alone 
is $29.3 billion; Safe Drinking Water Act, $8.6 billion, and RCRA, 
Resource Conservation and Recovery Act, $5.5 billion--again, well 
intended pieces of legislation, some of which do a good job. But should 
it be mandated without the funds? The answer is no. That is what we are 
here talking about. That is what is being delayed. That is what the 
other side, our friends on the other side of the aisle are doing. They 
are delaying this bill to stop this stuff so it does not happen in the 
future.
  Now, there was a Price Waterhouse survey that said counties are 
spending $4.8 billion annually--1993, $4.8 billion annually--to comply 
with just 12 of many unfunded mandates in Federal programs, and that 
they will spend $33.7 billion over the next 5 years.
  Let me give you a couple of examples in New Hampshire.
  The city of Berlin, NH, economically depends on one business really 
for its livelihood, and that is a big paper mill--11,700 residents and 
declining. It is under an EPA order to construct a new $18 million 
water supply system pursuant to this Safe Drinking Water Act, mandated 
$18 million.
  Berlin has problems with its water, and it is trying to correct them, 
and it needs the time to do that. Those citizens, many of whom I know 
personally, do not want to drink polluted water. But they cannot bond 
this amount of money within the time that is dictated to them by the 
EPA. They simply cannot do it. So they are facing fines of $25,000 a 
day, a depressed community of 11,700 people facing $25,000 a day fines 
for not complying with the regulations.
  I might inquire of the Chair, has my time expired?
  The PRESIDING OFFICER. It has. The Senator may seek additional time 
if he wishes to ask unanimous consent.
  Mr. SMITH. I ask unanimous consent for an additional 10 minutes.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. SMITH. I thank the Chair.
  The PRESIDING OFFICER. The Senator from New Hampshire.
  Mr. SMITH. Here we are facing fines of $25,000 a day, trying to fix 
$18 million worth of problems. Does that make sense? Does it really 
make sense to fine these people to try to comply?
  That is what an unfunded mandate does. Not only is it an unfunded 
mandate; it is fining for not complying with an unfunded mandate, which 
compounds it. It makes it worse. You cannot get $25,000 a day from 
people who do not have jobs, who are worried about the mill closing. It 
just does not work. Yet, here we go. I have people in those towns tell 
me, ``Senator, why don't you have the Federal Government come up here 
and take over the town because it will be a lot easier. It will give us 
less headaches. You run it. You want to tell us what to do, so go ahead 
and run the town.''
  Rochester, NH, same thing--mandate under the Clean Water Act. I could 
mention numerous examples all over my State, and of course every 
Senator could mention similar horror stories all over America. Because 
of the enormous costs associated with the removal of these materials, 
for example, in Rochester, it has been forced to hire lawyers now to 
fight its case.
  Oh, boy, there is always the opportunity to hire lawyers. Get the 
lawyers involved and stretch it out to cost even more. There is always 
a lawyer on either side to get a lot of money out of this thing. So we 
do not spend any money on cleanup; we spend it on lawyers rather than 
on cleanup, which makes it worse.
  Why? You know why? Do you know why we have the lawyers involved in 
this? Because somebody back beginning approximately in the New Deal 
era, and built upon since then, has said that the 10th amendment ought 
to be torn up and thrown in the waste basket and ignored, and that we 
ought to put mandates on the people of America. That is why lawyers are 
fighting. And it is ironic that these same lawyers are the ones who are 
sworn to uphold the Constitution and to work under the Constitution.
  I was a local official. I was a school board member for 6 years. I 
was the chairman of that same school board for 3 years. I know what it 
is like. I have seen what happened to my school district when an 
unfunded mandate came in that said: You will do this. I do not care 
what it costs, you will do it. That forces many small communities to go 
out and raise additional taxes on that mandate.
  But again, we always get the debate off on whether or not what the 
mandate directs is good or bad. That is not the issue. In most cases, 
they are good. For example, handicapped children, absolutely, educating 
the handicapped, helping those people to get mainstreamed, absolutely 
supported by me and others. But should it be an unfunded mandate? If 
you want to mandate it, if that is what America wants, then fund it. Do 
not force a community that cannot pay for it to pay for it.
  Do you really want to cut taxes for the middle class? That is what I 
hear the President say--cut taxes for the middle class. Then, Mr. 
President, when you get this bill, if you ever get it, if your party 
ever will let us get it to you, sign it and you are going to save 
hundreds of millions of dollars--hundreds of millions of dollars on 
middle-class Americans who carry the load.
  Unfunded Federal mandates encroach on the authority of the States in 
contravention of the 10th amendment.
  So what is the solution? The solution has been proposed by my most 
distinguished colleague, the Senator from Idaho [Mr. Kempthorne], 
himself a former mayor, who drafted this legislation, who traveled all 
over the country getting support for it and pulling this thing together 
and managing it so brilliantly in the Chamber. Some say he has only 
been here 2 years as a Senator. But he had several years as a mayor on 
the receiving end of these mandates. He knows what those mandates do to 
his tax base, as the mayor of Boise, ID, and he knows what it does to 
the tax base of every community that is impacted by one of those 
mandates.
  This is a vital step. It will end a deplorable practice of Congress 
imposing unfunded mandates on State and local governments.
  Now, S. 1, the bill which we are talking about, sets a tough 
standard. It is stuff. You bet it is. And it ought to be. We are trying 
to get back to the Constitution of the United States, which we have 
ignored. It needs to be tough. This bill provides that it shall not be 
in order for the Senate to even consider any bill, joint resolution, 
amendment, motion, or conference report that would increase the direct 
costs of Federal intergovernmental mandates by an amount that causes 
the $50 million threshold to be exceeded unless the mandate is paid by 
the Federal Government.
  That is the way it ought to be. We cannot even consider it, let alone 
pass it. That is how tough it is, and that is good. That is why it is 
being opposed by some on the other side, because some of our colleagues 
on the other side--not all--are responsible for the fact that we have 
these mandates in the first place, and they do not want them to go 
away. But the American people want them to go away.
  Any bill that imposes an unfunded mandate above that threshold of $50 
million on State and/or local governments shall be out of order on the 
Senate floor. You cannot even get a chance to vote on it to pass it.
 That is tough. That is the way it should be.

  There is a further step. I am going to support Senator Hatch's 
constitutional amendment to prohibit unfunded mandates on State and 
local governments unless two-thirds of the Houses of Congress decide to 
do so. And there again is another irony. We have a 10th amendment that 
says we cannot have unfunded mandates, in my opinion, yet we are now 
going to probably have to have a 27th or 28th amendment which says we 
are going to prohibit them.
  That tells you where we are at in this country. It tells you that 
people in this country--some in this Congress--are willing to trash the 
Constitution of the United States of America. For what? Political gain? 
I do not know. How do you get political gain out of something the 
majority of the American people do not want by advocating it? It beats 
me.
   [[Page S1265]] It is unfortunate, and frankly ironic, that S. 1 has 
become necessary. Our Founding Fathers are probably spinning around in 
their graves right now. They created a limited Federal Government that 
would respect the rights of the States and here we are on the floor of 
the Senate, trying to gain back what the Founding Fathers never wanted 
to lose in the first place. They made that protection very explicit in 
that 10th amendment. Frankly, not only the Congress, the Supreme Court 
as well--let us not let the Supreme Court off the hook here--all these 
brilliant judges, scholars, over the years who have allowed this to 
happen. They are responsible, too. They have not afforded sufficient 
respect to the 10th amendment.
  There have been some brilliant people who have served in Government 
since the Constitution was written, many of them. I stand at the desk 
of one of them, Daniel Webster. Henry Clay, John C. Calhoun--great 
orators, great Senators down through the years as well as others in the 
House and the Senate. And, frankly, out of politics--on the courts: 
brilliant people. But I have not yet met the match for Thomas Jefferson 
and James Madison and John Jay and others during that time, our 
forefathers, who wrote this brilliant document.
  They knew what they were doing. They knew what they were doing. I 
think we made some terrible mistakes. The Senator from Idaho with this 
legislation is giving us the opportunity to correct some.
  The Senator from Tennessee, who is a surgeon, who was talking about 
health care a while ago on floor when I was in the Chair--we are going 
to have to perform corrective surgery. And it is about time. It is 
about time. That is why the American people changed course on November 
8. I hope this Senate will get the message and pass this legislation 
next week, get it through the House, and get it to the President of the 
United States so it will become the law--which it already should be 
under the 10th amendment.
  In conclusion, we must never forget--and I think we have--that it was 
the States, there were only 13 at the time, but it was the States that 
created this Government. I used to teach history, so forgive me for a 
moment. The States created this Government. Without the large State-
small State compromise, the Senate would not be here. The House would 
not be here. The Federal Government would not be here. They decided to 
give certain powers to the Federal Government and created that 
Government as a result. They never wanted the Federal Government to go 
beyond the specific powers they were given.
  Let us get back to the Constitution. If we do the debate, the 
integrity of the debate is on our side, and we will win. I think we 
will. It is just going to take a little time. It is a little 
frustrating that Senators exercise the right that they have to delay 
and debate. If you are going to delay to debate to make your point that 
is fine. If you are going to delay simply to stop the legislation, from 
us getting a chance to vote on it, I think that is wrong. Especially 
when you are trying to repeal something that is unconstitutional, in my 
opinion, to begin with.
  Mr. President, I yield.
  The PRESIDING OFFICER. The Senator from Pennsylvania.

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