[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.
____________________