[Congressional Record Volume 141, Number 17 (Friday, January 27, 1995)]
[Senate]
[Pages S1685-S1688]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                      UNFUNDED MANDATE REFORM ACT

  Mr. DASCHLE. Mr. President, I thank the majority leader for yielding.
  I did not have the opportunity to listen to his entire statement, but 
his comments at the end reflect sentiments that I had intended to 
express.
  This is the end of business as usual, at least as it affects our 
relationship with the States, local governments, and tribal 
governments. I commend the managers of the bill on both sides of the 
aisle for their hard work. They have done an outstanding job in the 
course of the last 2 weeks to bring us to this point.
  Senator Kempthorne and Senator Glenn have shown the demeanor and the 
comity between themselves, and certainly the patience in working with 
all of us, to make passage of this bill possible.
  Let me also say that because we took the time, because we deliberated 
thoroughly for the last 2 weeks, because we have had the opportunity to 
offer amendments and considered them carefully, this is a much better 
bill than the version that was presented to this body just 2 weeks ago. 
It has been improved by the process. Those improvements resulted in 
broad bipartisan support for the legislation in the end.
  To all of my colleagues, I say it is important that everyone 
understand the difference between the House and the Senate. Certainly, 
it is possible to pass legislation through the House more quickly, but 
I do not believe that all the legislation that goes through the House 
is exactly as we would like it in the Senate. The responsibility of the 
Senate is to deliberate more carefully and to deal more deliberately 
with the legislative issues at hand.
  There are many very complicated and difficult questions we have had 
to face with this issue, as there will be with other bills that will 
come before us. The amendment process is our only means to effectively 
deal with with those questions in a meaningful way.
  So it is with great admiration that I come to the floor this 
afternoon to congratulate the two managers of this legislation. But I 
must remind my colleagues that the minority feels very strongly that as 
these amendments and bills come before us, we will take our time, we 
will do what we must to ensure that all matters related to the 
legislation get thorough consideration. We will be as supportive as 
possible when we agree with our Republican colleagues on the merits. 
But certainly we must object when the process does not allow us or 
accord us the opportunities the minority deserves as these complicated 
bills come before us.
  Mr. President, I yield the floor.
  Mr. THURMOND addressed the Chair.
  The PRESIDING OFFICER (Mr. Kempthorne). The Senator from South 
Carolina.
  Mr. THURMOND. Mr. President, I was pleased to cosponsor S. 1, the 
Unfunded Mandates Reform Act of 1995, a bill to curb the practice of 
imposing unfunded Federal mandates on States and local governments.
  This is an important piece of legislation, and I am delighted it has 
passed.
  I wish to commend our majority leader, Senator Dole, and all the 
others who joined on this bill as cosponsors. I especially wish to 
commend Senator Dirk Kempthorne, the Republican manager of the bill, 
and Senator John Glenn, the Democrat manager.
  Senator Kempthorne is a new Senator, yet he managed this bill as if 
he were a veteran of 20 years. He artfully handled it with great skill 
and much grace. We are very proud of his efforts. I predict this bill 
is going to bring great results to this Government, and I look forward 
to those results in the years ahead.
  Mr. President, over 1 year ago, in October 1993, thousands of mayors, 
county commissioners, and Governors met in front of their town halls, 
court houses, and State houses and gathered here in Washington to speak 
out against, what is popularly described as, the unfunded mandates 
issue.
  Unfunded Federal mandates arise when the Federal Government, through 
legislative or executive action, directs State and local governments to 
establish a particular policy or program, without providing the 
financial resources to implement that policy or program.
  Mr. President, this situation emanates from our unique system of 
government. By design of our Founding Fathers, governmental power in 
our Nation is divided between the National Government and State and 
local governments. The National Government, with delegated and implied 
powers, coupled with the supremacy clause of article 6 of the U.S. 
Constitution, has taken upon itself to direct the States in many areas 
of law and public policy. On the other hand, the 10th amendment to the 
Constitution specifically reserves to the States or to the people, 
powers not delegated to the United States by the Constitution. Thus, a 
natural tension arises between levels of government, particularly when 
it involves unfunded mandates.
  Federal laws and regulations place a heavy burden on State and local 
governments, as well as businesses and consumers. Cities and counties 
are hit particularly hard by Federal environmental rules which require 
expensive capital expenditures and operational 
[[Page S1686]] costs to comply with Federal standards.
  Numerous surveys and studies have been conducted to determine the 
extent of the burden of unfunded mandates. These surveys consistently 
report findings that unfunded mandates consume significant portions of 
State and local budgets, totaling billions of dollars.
  Mr. President, the message of State and local government officials is 
being heard in Washington, and their concerns are being addressed. Last 
year, in addition to an Executive order issued by President Clinton, 
unfunded mandates legislation was considered by Congress, although 
final action on the measure could not be completed in the closing days 
of the last Congress.
  I am pleased that the Senate has acted on this reform legislation 
addressing unfunded Federal mandates. No one could have handled this 
bill with more talent and skill than Senator Kempthorne has done, and I 
congratulate him on the leadership he has shown on this issue. Also, I 
commend the majority leader and relevant committees for quickly 
bringing this bill to the floor. This measure is widely supported, as 
indicated by the bipartisan majority of Senators who cosponsored the 
bill, and who ultimately voted for final passage.
  Mr. President, S. 1 establishes a legislative framework based on 
three fundamental concepts--information, consultation, and 
accountability. First, this bill provides that Congress must consider 
information on the cost of mandates to State, local, and tribal 
governments, as well as to the private sector. This information will 
identify whether or not proposed legislation includes a mandate and, if 
so, the cost of the mandate.
  Second, the bill requires consultation with State, local, and tribal 
officials when Federal agencies develop regulations that contain 
significant Federal mandates. This provision is consistent with 
President Clinton's Executive order which seeks to establish a closer 
partnership between the Federal Government and the States.
  Third, the bill establishes a method of enforcement and 
accountability. It provides for a point of order against committee-
reported bills and resolutions which contain a mandate but fail to 
provide information on the cost of the mandate. Another point of order 
lies against legislation which contain unfunded mandates exceeding the 
$50 million threshold. These provisions put an end to the practice of 
passing hidden costs to the States. Congress must now openly address 
these costs and make a deliberate decision to impose a mandate and pass 
on the costs of that mandate.
  Mr. President, the issue of the proper role of the Federal Government 
is one which the Nation has faced from its beginning. Since our 
colonial days, Americans have been suspicious of centralized executive 
power. Recognizing a legitimate role for government, the Founding 
Fathers nevertheless sought to limit the power of the National 
Government. This bill is another step toward restoring the Federal-
State partnership as it was designed and intended by the Founders of 
the Constitution. The word ``Federal'' evolves from the Latin word 
foederatus, meaning covenant or compact. The Constitution establishes 
that compact or contract between the governed and the government, and 
between the National and State governments. It gives specified powers 
to the central Government, and reserves all other powers and rights to 
the people and to the States. Today, however, the Federal Government 
continues to expand its influence in commercial regulation, 
environmental protection, welfare reform, and health care. Any one of 
these areas contains the potential for continued pressure on both the 
Federal treasury as well as State and local budgets.
  Mr. President, while the issue of Federal mandates will not likely 
disappear in the foreseeable future, the Unfunded Mandate Reform Act of 
1995 will help to diminish the threat to State, local, and tribal 
governments and will bring timely information, accountability, and 
consultation to the process. I was proud to support this legislation 
which prohibits the Federal Government from mandating State or local 
government action, unless Federal funds are provided.
  Mrs. HUTCHISON addressed the Chair.
  The PRESIDING OFFICER. The Chair would like to thank the Senator from 
South Carolina for his comments.
  The Chair recognizes the Senator from Texas.
  Mrs. HUTCHISON. Mr. President, I thank the Chair.
  I would like to add my words of congratulations to the Senator from 
Idaho. As was mentioned by the Dean of the Senate, Senator Kempthorne 
is a freshman. He has only been here for 2 years, and it is a very rare 
thing that someone who has been here only 2 years would be able to take 
a bill to the floor and to handle that bill really alone as the sponsor 
of the bill, with able help and participation from Senator Glenn, as 
well.
  Senator Kempthorne really deserves the credit, and I wish to 
congratulate the people of Idaho for electing a person who is a former 
mayor of Boise, who came here with a mission, to try to help a 
situation that he had experienced firsthand as mayor. I relate to that 
experience because I was State treasurer of my State of Texas. The 
others that were the first people on this bill were also State or local 
officials, such as Senator Gregg, who was the Governor of New 
Hampshire.
  People like us, who came from local and State governments, really 
understand what was happening to the 10th amendment. The 10th amendment 
is one of the most important amendments to our Constitution. A lot of 
people forget it was the States that created the Federal Government; it 
was not the Federal Government that created the States. And the 10th 
amendment says exactly that, that all the powers not specifically 
reserved to the Federal Government shall go to the States and the 
people.
  We must return to the 10th amendment, and we took a historic step 
today on this side of our Congress to do just that, to restore the 
rights of the States and the local governments to make the decisions 
closest to the people. That is what our Founding Fathers intended, and 
that is what I hope every step we take throughout this session will 
continue to approach.
  I want the government closest to the people to make the decisions 
that relate to the people to whom they are closest. This was a major 
first step, and I am so proud to see that the House is now debating 
this very same bill. I look forward to the President having the relief 
to the States and cities on his desk by the end of next week. That will 
be a major step.
  In fact, this really has been a historic week in Congress. On the 
other side of the Capitol, the House yesterday passed a balanced budget 
amendment, a great step forward for our children and grandchildren to 
know that we are going to act responsibly to start trying to get toward 
that balanced budget so that we will not pass our debts on to the next 
generations. And on this side of the Capitol, we passed the first step 
to giving the States and local governments closest to the people the 
rights they should have.
  So I just want to commend Senator Kempthorne. I commend all who 
worked so hard on this bill. For the last 10 days, it has really rested 
on him, and I think it is a great step forward. We are beginning to do 
for the people what we hoped we could do, what they asked us to do on 
November 8, and that is to start making the Federal Government less 
intrusive on our lives.
  I thank the Chair.
  Mr. GLENN addressed the Chair.
  The PRESIDING OFFICER (Mr. DeWINE). The Senator from Ohio.
  Mr. GLENN. Mr. President, I want to respond to the very kind remarks 
made by several people about myself and Senator Kempthorne with 
relation to this bill. I do believe this is very, very important 
legislation. I referred to it several times during debate as landmark 
legislation, and I think it is that important. A lot of times some of 
these things about processes and procedures and what you have to 
consider before you do something else, the organization of Government, 
the intergovernmental relationships between the Federal, State and 
local governments and how that fits in with the Constitution and so on, 
are arcane. They are looked at as something boring and not too 
interesting. But we have referred to them, on the Governmental Affairs 
Committee, occasionally, as doing sort 
[[Page S1687]] of the grunt work of Government, if you will.
  They are not as spectacular, not as interesting, maybe, as looking at 
B-2 bombers, M1A2 tanks, radars, and all the other things that go on. 
But improvements in these areas have, for the future--5, 10, 15, 20 
years down the road--the potential of making our Government work 
better, work more efficiently, and that is what this is all about. That 
is why I do believe this is landmark legislation.
  What it has done basically is reversed a trend that was started some 
60 years ago. I mentioned on the floor several times during this debate 
over the last 2 weeks, that I go back in my own lifetime to the days of 
the Great Depression. I remember that very well. Why is that important 
in considering unfunded mandates? Because prior to that time there were 
not some of the demands made on States that came to be common in the 
days during and after the Great Depression. Prior to that time in this 
country families took care of families, communities took care of 
communities. It was rare people could not take care of each other 
within the local community. Once in a while maybe some young person had 
to be sent to the county orphanage or some old person had to be sent to 
the county home. That was looked at as a failure of the community at 
that time.
  That was sufficient. That Norman Rockwell view of America was 
sufficient in the early days of this country. It worked and I wish 
America still worked that way. But what happened in the days of the 
Great Depression was there was hunger, there were soup kitchens in the 
United States of America. If the movies portray it properly, the Okies 
were heading west with a mattress on top of the car. The United States 
at that time had enough doubt about itself that it was questionable 
what would become of this country--it was that serious.
  There was hunger in America, if you can imagine that, on a big scale. 
Unemployment was over 20 percent for 4 straight years; 1 year, 
unemployment was right at 25 percent. America had lost its ability to 
cope and to take care of each other in that Norman Rockwell world that 
had been so great for this country and a hallmark of this country--
people taking care of each other.
  But that broke down. I remember my dad running an extra 2 acres of 
land, planting a big garden, and giving food away to the people in the 
town. We helped. I will not go into all the details of that. But then 
came along, out of that kind of disaster, the election of Franklin 
Delano Roosevelt and the New Deal. Whether people today think that was 
a good idea or not, I can tell you about those days when the mortgage 
on the home I was living in was saved by the FHA, and where people were 
put back to work, where I remember my dad, who had a little plumbing 
shop, going to work on a WPA project in New Concord replacing the water 
system that was made out of wooden pipes--wooden pipes--with a new and 
more modern water system--things like that went on all over the 
country.
  A program was started for rural electrification and the lines went 
out across the country. The farmers, then, had new energy sources to 
help them do their work. I will not go into all the things that were 
part and parcel of that whole New Deal. I think too many people these 
days speak of the New Deal in scathing tones. But the New Deal 
addressed the problems of America at a time when America had lost its 
own capability to take care of itself, person to person, community to 
community and so on. It was that serious.
  Did some of those programs over the last 60 years go too far? Why, of 
course they did, and I would be the first to admit that. We say now 
that all of the concern for people and for training and job training 
that has resulted in, I believe it is 128 different Government job 
training programs, many that overlap--is wasteful. Is this wasteful? Of 
course it is. Should we correct that? Of course we should. But some of 
the things that have happened over the last 60 years began in tragedy 
for this Nation, and the programs that were put in back at that time 
were lifesaving programs for this Nation.
  We have come to the point over the last dozen years or so where 
Federal demands on the States, pursuant to programs quite laudatory as 
far as their purposes go--but too many of the programs have been just 
mandates given to the States. ``Let the States pay for them.'' Maybe we 
pay 10 percent from the Federal level, but then put big demands on the 
States.
  Where that could be done, perhaps satisfactorily back maybe 15 or 20 
years ago, it will no longer work because those Federal demands have 
become so great, with environmental concerns such as the Clean Air Act 
and Clean Water Act, building codes, police and law and order, and all 
the other things that we know about, where demands have been placed 
from the Federal level on the local communities or on the State 
government but the adequate money has not flowed along with that to 
help them implement those programs. Along with that, in the mid-1980's 
there was what was called the new federalism that cut out a lot of the 
normal Federal support. Community Development Block Grants and some of 
the other programs were cut out that the States had been depending on 
to help them cope with some of these Federal demands.
  So we have seen an enormous, exponential increase in the last 10 
years or so in demands on the States and local government that has 
become intolerable. Starting back about 3 or 4 years ago we saw 
complaints coming from the States, complaints coming from counties, 
from local governments and increasing in volume and increasing in 
concerns expressed about where this country was going if we continued 
this. Were we violating the Constitution? Were we violating propriety? 
Just ``what is right'' might be even a better question than one about 
the Constitution, because we cannot just heap requirements on the 
States and expect them to be able to cope with that.
  That is the reason I think this legislation is so important. To those 
who just decry everything about New Deal and everything about the 
Democratic support for some of those programs and so on, I point out 
those programs were born of necessity in a time of crisis for this 
country. Now, after a period of some 60 years, though, we are saying 
that what finally happened with these programs, where the funding was 
put back on the States too much, that this has to be reversed. So that 
is the reason I see this as landmark legislation.
  I think we have reached a height. We are leveling this off. We are 
saying there absolutely has to be considered up front the costs of 
programs and there has to be a vote on those programs, if it is 
demanded, right here. So we have to assume our responsibility, where 
too often in the past we have just taken these programs and said: I am 
sure the States can take care of that. Let us vote that in. There has 
not been too much squealing recently, they must be able to do it. So we 
just go and vote that out.
  That will no longer be the case. When this legislation is finally 
through the House or whatever compromise version comes out of the 
House, we will have moved to a different level, a different 
relationship between the States and the Federal Government and the 
local governments.
  I have been getting an increasing amount of mail about this subject. 
I would say to the Governors out there across this country, I have been 
getting an increasing amount of mail from local officials, from city 
and county officials, saying, ``They do to us what you do to them.'' In 
other words, the State does to my county, the State does to my town, 
what they are complaining the Federal Government does to the States. So 
I think the Governors have to take it upon themselves to make certain 
that this ``no money, no mandate'' that is sweeping the country 
includes the relationship among the States and local governments.
  There have been some editorials in our home State of Ohio to that 
effect, where they pointed out some things where the State has given 
the local government problems in just such an issue as we are trying to 
address in the relationship between the Federal and State Governments.
  So I think there is another area where the Governors and the States 
have to make certain that they are also taking adequate action. There 
are still needs of the people out there across this country. There are 
still needs of the poor. There are still needs to have to be met with 
regard to Medicaid, medical care, and health care, 
[[Page S1688]] some of which are provided for by Federal funds that are 
allowed to become less available to the States. But the needs of the 
people have not changed. Can the States adapt to this new situation, 
particularly if we pass a balanced budget amendment? Can the States 
adapt to this and assume those services now that they could not or 
would not do back in the days of the Great Depression, and assume it 
now some 60 years later as we reverse this relationship between the 
Federal, State, and local governments?
  I think that has yet to be seen, and I think as a result of the 
legislation that we are here passing and will be passed over in the 
House one of these days, I hope, I think we have to very carefully 
watch this to make sure that some States are not less careful to take 
care of the needs of the people so that we do not see them once again 
going through a trough, as a Federal necessity to move in, and come 
about because of the States unwillingness to act.
  So with those caveats on this I am very, very glad to see this 
legislation passed today. We worked on it a long time.


                   Commendation of Senator Kempthorne

  Mr. President, I want to mention briefly some of the people involved. 
Certainly Senator Kempthorne, who has been a real driving force behind 
this starting about 2 years ago, introduced the legislation along with 
about half-dozen other proposals that were put forth that were referred 
to the Governmental Affairs Committee, must be commended. I had been 
working on some legislation along this line myself. And so we combined 
forces on this. He has been an absolutely superb person to put this 
legislation forward. He has been a real spark plug on it, has kept 
after it when we were trying to have hearings in the Governmental 
Affairs Committee, and wanted to have hearings. If the hearings were 
not scheduled for a week or so, I would get a couple of phone calls 
from Senator Kempthorne very nicely, politely asking, ``John, couldn't 
we work this in? Don't you think maybe we could somehow work this in 
over there?'' And work it in we finally did, and we got the legislation 
out last August.
  I will not go through the litany which I have gone through a couple 
of times already today about what happened once we got it out of 
committee in August, and what happened during the fall when we could 
not get adequate time on the floor to have it considered. Then the 
election came about. There was a new attitude over in the House, and we 
thought perhaps S. 993, which was the first bill that was an adequate 
bill by all estimates, might not be the legislation that the House had 
wanted to agree to now with the changed political situation. So this 
new legislation, S. 1, was put forward and was given the preeminence 
that it deserved by being named S. 1, the No. 1 bill to be considered.
  Senator Kempthorne, through all of this, has been a superb person to 
work with, friendly, congenial. We have not had any harsh words. We 
have worked things out between us.
  I want to congratulate him for his persistence in this regard. It has 
been great to see him work, and as we mentioned here not too long ago 
on the floor--an hour or so ago--to have someone come here with a very 
complex piece of legislation and handle it the way he did is a real 
testimony to his capability.


                         Commendation of Staff

  Mr. President, on Senator Kempthorne's staff, of course, Buster 
Fawcett, who is here and has worked on this, as the prime person 
working on it; Brian Waldmann, also, Senator Kempthorne's 
administrative assistant, and Gary Smith, all have worked on this, have 
done a superb job, and have done a lot of work. They have had a lot of 
sleepless nights.
  On my own staff, Leonard Weiss is our staff director on the 
Governmental Affairs Committee, who is here, along with Sebastian 
O'Kelly and Larry Novey, who is back in the back here. All of them 
worked and worked and worked on this, and did a superb job in all the 
negotiating back and forth. I want to give them full credit for that.


              Commendation of Senator Levin and His Staff

  Mr. President, let me say a word also about Senator Levin from 
Michigan. I have never known a Senator since I have been here who is 
more persistent, who, once he gets his teeth into something that he 
believes in, becomes a real pit bull for that purpose, and who by his 
background and training, having been president of the Detroit Council 
at one time, has a feel for local issues as well as the Federal issues 
that we deal with here, but he brings that kind of a background to this 
consideration of such legislation as this. Where other people may say 
that phrase is OK, he wants to dig into every phrase to see what its 
impact is going to be, to see what can be misconstrued under this and 
whether it can be corrected by a change of wording.
  In other words, his emphasis through all of this is one of principle, 
of how we make legislation work better. How is it going to apply to the 
States? How will it apply to the city of Detroit? How will it apply to 
the counties? On and on, he tries to set up scenarios to illustrate the 
weaknesses in legislation. That is what motivated him through all of 
this in committee.
  He was so unhappy when we were not able to get any amendments 
considered in committee. They were automatically voted down, and we had 
to bring them to the floor. But he persisted, and he brought those 
concerns to the floor and dealt with many of them right here on the 
floor.
  I want to pay credit to him, and particularly to his staff, Linda 
Gustitus, who is the staff on the Oversight and Government Management 
Subcommittee of Governmental Affairs. She has done a superb job on 
this. I want to give credit to them.


                Commendation of Senator Daschle's Staff

  Mr. President, on the minority leader's staff, Senator Daschle's 
staff, Mike Cole and Eric Washburn, all worked very hard on this. I 
know that we stand up and take credit and we get all the laudatory 
comments about doing some good with a bill like this. But it is the 
staff who worked the long nights sometimes with us, sometimes in our 
absence, while the Senators were home in bed quite frankly, and did 
such great work on this.
  I do think they can take great pride in seeing their work on landmark 
legislation. I think that will be the case as the years go on, and as 
they continue to work with us to make sure that this is fine tuned, and 
that this legislation is working as intended.
  So I want to give credit to all of those people and the other 
Senators involved here, and we are proud to have worked on this 
ourselves. We are glad we got the bill through.
  We have the job now of hoping to get it through over in the House, or 
a compromise version thereof. We look forward to being able to attend 
the signing ceremony, I hope in the not-too-distant future at the White 
House when this finally becomes law.
  I yield the floor.
  Mr. BURNS addressed the Chair.
  The PRESIDING OFFICER. The Senator from Montana is recognized.
  Mr. BURNS. Thank you, Mr. President.
  I want to associate myself with the words of my colleague from Ohio 
on this legislation, that we understand that this is landmark 
legislation. We may have seen the turning of the corner of a new 
attitude, maybe a new cooperation between the States and the Federal 
Government.
  Senator Glenn was commenting on times gone by back in the Great 
Depression, of course, in that great era of drought and what drove the 
``Okies'' to California. I would have to say I do not know what it is 
doing now but the Californians are coming to Montana now. I do not know 
what is driving them. But also as a fellow marine, we did not even know 
it at the time, but that goes back further than either one of us want 
to visit about, I congratulate him on his tenacity, and Senator 
Kempthorne from Idaho, because unfunded mandates just did not start 1 
year ago or 2 years ago. It has been going on here quite awhile as the 
debate got going, and finally we see today it has come to fruition in 
the passage of this bill.

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