[Congressional Record Volume 141, Number 17 (Friday, January 27, 1995)]
[Senate]
[Pages S1699-S1701]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




               THOUGHTS ON UNFUNDED MANDATES LEGISLATION

  Mr. BYRD. Mr. President, I thank the Chair.
  The Senate has just passed S. 1, the unfunded mandates legislation. 
Each of us has come to his own conclusion after weighing the pros and 
cons of the bill and deciding whether or not this bill is in the best 
interests of the Nation.
  My point in speaking on this bill now, after the vote on final 
passage, is, No. 1 to explain my vote against the bill; and second, to 
offer a word of caution.
  This bill has not produced a panacea, as I will address shortly. One 
of the reasons why I voted against the bill is that the Senate rarely 
imposes restraints upon itself by statute.
  When the Senate addresses its procedures in statute it is usually to 
provide expedited procedures for the consideration of specified 
measures such as War Powers, Budget Act, Trade Act, or various 
provisions authorizing Congressional approval or disapproval of 
Executive proposals. In other words, Defense Base Closure Commission 
recommendations).
  The Senate addressed its rules in the Legislative Reorganization Acts 
of 1946 and 1970, and imposed certain requirements and safeguards which 
may not have explicitly authorized points of order, but whose 
provisions could arguably be enforced by points of order on the Senate 
floor.
  The Senate has imposed numerous restrictions on itself and provided 
for their enforcement by points of order in the Congressional Budget 
Act of 1974, which I had a great deal to do with writing, and the 
related laws such as the Balanced Budget and Emergency Deficit 
Reduction Act of 1985 and 1987 (Gramm-Rudman-Hollings) and the Budget 
Enforcement Act of 1990.
  But the Senate usually establishes internal discipline by amending 
its rules or entering into unanimous consent agreements, agreements 
which can be objected to by any Senator. One objection and the proposed 
amendment does not go into effect.
  Amendments to the rules almost invariably occur by the adoption in 
the Senate of a simple Senate resolution.
  Establishing points of order in statutes is unnecessary, and should 
be avoided as much as possible.
  To establish points of order in statutes is unnecessary, and allows 
the Senate to change its procedures (if not its rules per se) without 
one day's notice in writing, and also avoids the more stringent cloture 
requirement of two-thirds vote on proposals to amend the Standing Rules 
of the Senate.
  This is one way of getting around the cloture requirement of two-
thirds vote on proposals to amend the Standing Rules of the Senate.
  Establishing points of order in statutes unnecessarily lengthens the 
process by involving consideration in the House of rules governing the 
Senate, involving consideration in committee, on the floor, in 
conference on the House and Senate floors during the consideration of a 
conference report, and also involves the President of the United 
States.
  If the President should obtain a line-item veto at some point, God 
forbid, it is conceivable that a President could become involved in 
internal Senate discipline by vetoing some but not all of the 
provisions that deal exclusively with Senate procedure.
  A point of order against unfunded mandates is a departure from 
previous changes to Senate procedure in that it can have the effect of 
precluding the consideration of a particular subject matter by the 
Senate. What other types of subject matters will be added to this list?
  If one specific subject matter may be thus avoided in the future, 
then what other subject matters may be avoided, because they are made 
subject to statutorily imposed points of order?
  So I view this with concern, Mr. President. We are going down a 
slippery slope from which there is no return when we impose points of 
order as a means of internal discipline in the course of Senate 
deliberation on a bill. We impose those points of order by a law, by 
statute, as I say, bringing not only the Senate, as should be the case, 
but also the House and the President into the act.
  S. 1 is not a cure-all for the problem of federally imposed mandates. 
And most importantly, it is not the safety net for the States that it 
has been characterized to be.
  This legislation will not provide any State, local or tribal 
government a foolproof sanctuary against future mandates. Nor will it 
protect those governmental units against increased costs should the 
requirements of any current mandate be increased. All that S. 1 does in 
this regard is to establish a majority point of order against any bill 
or joint resolution reported by a committee without a CBO cost 
estimate. And obviously, as with any majority point of order, that is 
an additional hurdle to be overcome by those who may wish to enact a 
piece of legislation. But I would stress, in the strongest possible 
terms, that the point of order is merely a majority point of order. And 
as such, it takes the votes of no more than 51 Senators to waive, if 
all Senators are present and voting.
  And if all Senators are not present and voting, it takes a majority 
of those who are present and voting. If only 60 Senators are present 
and voting, then only 31 Senators would be needed to waive.
  Fifty-one Senators, or a majority of those who are present and 
voting, can say that the mandate contained in the bill or joint 
resolution is important enough to the health, safety, and welfare of 
the American public that they are willing to enact the mandate without 
an estimate. If only 51 Senators are present and voting, then only 26 
are needed to constitute a majority.
  Apparently forgotten by those who would make S. 1 out to be a 
protective shield against the whims of the Congress is that the number 
of Senators needed to waive the point of order is precisely the number 
of Senators needed to pass any bill containing a mandate.
  The point must be emphasized, particularly to the Governors of this 
Nation--and to the mayors of cities who are meeting in this Capital 
City--that S. 1 will not with certainty protect them from the costs and 
responsibilities of future mandates.
  Further, there is nothing in S. 1 which will provide any relief 
whatsoever to State and local governments for the costs of existing 
Federal mandates. No relief whatsoever, Governors. None. No relief 
whatsoever.
  According to the report of the Budget Committee on S. 1, one study 
prepared for the GSA Regulatory Information Service Center in 1992 
found the cost of Federal mandates to State and local governments and 
the private sector 
[[Page S1700]] was estimated to amount to $581 billion, or roughly 10 
percent of the gross domestic product.
  Witnesses before the Budget and Governmental Affairs Committee at a 
joint hearing on January 5, 1995, from State and local governments 
testified about the damaging impact of existing Federal mandates on 
State and local governments.
  The National League of Cities testified over the past 2 decades that 
the Congress has enacted 185 new laws imposing mandates on State and 
local governments.
  The U.S. Conference of Mayors testified that 314 cities will spend an 
estimated $54 billion over the next 5 years to comply with only 10 of 
those Federal mandates.
  Mr. President, Governors and mayors should keep in mind that nothing 
in S. 1 will relieve them of compliance with a single one of these 
existing Federal mandates or provide them with one thin dime of 
reimbursement of their costs.
  In addition, this bill will do nothing to protect the States against 
the harsh pain that they will be forced to endure if the biggest 
unfunded mandate of all--a constitutional amendment to balance the 
budget--is ever riveted into the Constitution.
  So those Governors and mayors who have been supporting a 
constitutional amendment to balance the budget under the belief that 
the passage of the unfunded mandates bill today, if enacted into law, 
will relieve them of the burdens that are imposed upon them, they are 
going to be sadly and badly mistaken.
  This bill will not safeguard one single State from that pain. Where 
are the States going to find the money to replace the hundreds of 
billions of dollars that currently flow from Washington to those State 
capitols when we start slashing the Federal budget promiscuously? Where 
are those Governors going to find the quarter trillion dollars that 
will cease to flow to their States in fiscal year 2002? A quarter 
trillion dollars, Mr. President, is the amount of money that will be 
lost to the States according to projections from the Treasury 
Department. Those are dollars that go for highways, additional police 
on our streets, housing, education, environmental cleanup, cleanup of 
toxic wastes, and myriad other programs.
  Moreover, that amendment does not even count additional moneys that 
would need to be cut if the tax cuts called for in the Republican 
``Contract With America'' are enacted. Under that scenario, the loss of 
Federal dollars to the States is even worse.
  So to those Governors and those mayors who are in town--hopefully 
they are watching C-SPAN--who think that S. 1 will protect them, I say 
to you, Mr. Governor, Mr. Mayor, think again. This bill, with or 
without its points of order, will not screen them from the overwhelming 
hurt that they are going to feel under that constitutionally sanctioned 
``unfunded mandate,'' the largest mandate of all, a colossal mandate--a 
constitutional amendment to balance the budget.
  Much has been said about the fact that this bill, S. 1, is different 
from the bill which the Senate considered last year--and I voted today 
for the amendment by Mr. Levin to substitute the bill that was 
considered last year, which I believe was a better bill--the big 
difference being the creation of a point of order.
  With respect to these points of order, left unsaid is the perverse 
political reality that Senators who do in fact vote to waive a point of 
order will undoubtedly find their procedural vote used against them in 
the next election. A point of order then, in a sense, that is nothing 
more than a brilliant political ploy directed at portraying any Senator 
who has the audacity to stand up for the health and well-being of the 
American people as some sort of ``budget buster.''
  I can see the television ads already. I can see the demagoguery and 
depraved mischaracterization of a Senator's vote. Any of us who may be 
willing to waive the point of order, willing to do what is right and 
best for our constituents, will find the big guns of the 30-second ad 
men aimed at our heads. Those political hucksters will have a field 
day, and we all had better know it, if we do not know it already. It 
will happen, Mr. President, because that is what elections have become, 
I am sorry to say. As a result of our incessant desire to avoid 
thoughtful reflection and meaningful debate aimed at educating the 
public, we have sunk to the level of 30-second public policy--30-second 
public policy. If the answer to a problem does not fit on a bumper 
sticker, well, then the answer must not be correct.
  Sadly, that truth will undoubtedly dissuade some from otherwise 
casting a vote they feel is all right on future legislation. I hope it 
will not dissuade many.
  Mr. President, let me just try to emphasize to Governors of the 
States and the mayors of our cities again that, if they think that, 
with passage of this bill, with its eventual enactment into law, the 
way will then be paved for a constitutional amendment to balance the 
budget because, and by virtue of this unfunded mandates bill, the 
States will be protected, they are mistaken. It is my understanding 
that many of the Governors and mayors wanted, before the Congress 
debates the constitutional amendment to balance the budget, wanted the 
Congress first to pass an unfunded mandates bill. They wanted that 
first. But if they are counting on these points of order to protect 
them, they are in for a rude awakening.
  We already have majority points of order, Mr. President, in the 
Senate Rules concerning appropriations bills. Let us turn in the Senate 
Rules to rule XVI.
 Rule XVI, paragraph 4--I will read this paragraph, as follows:

       4. On a point of order made by any Senator, no amendment 
     offered by any other Senator which proposes general 
     legislation shall be received to any general appropriation 
     bill, nor shall any amendment not germane or relevant to the 
     subject matter contained in the bill be received; nor shall 
     any amendment to any item or clause of such bill be received 
     which does not directly relate thereto; nor shall any 
     restriction on the expenditure of the funds appropriated 
     which proposes a limitation not authorized by law be received 
     if such restriction is to take effect or cease to be 
     effective upon the happening of a contingency; and all 
     questions of relevancy of amendments under this rule, when 
     raised, shall be submitted to the Senate and be decided 
     without debate; and any such amendment or restriction to a 
     general appropriation bill may be laid on the table without 
     prejudice to the bill.

  Now, Mr. President, that point of order is honored mostly in the 
breach. We all know that when an appropriation bill comes to the floor, 
if a Senator makes a point of order against an amendment as 
constituting legislation on an appropriation bill, another Senator will 
immediately raise the point of germaneness, and without debate, the 
Chair will submit that question of germaneness to the Senate for its 
decision. And we all know what happens. We all know what happens. 
Senators pay no attention to that point of order. They look at the 
substance of the amendment and disregard the rule and the point of 
order and vote that the amendment is germane to the bill.
  That point of order is a majority point of order and it is little 
heeded and it poses no obstacle. Senators simply wave it aside by 
voting on the question of germaneness.
  The same thing will happen here. In the case of unfunded mandates, 
Senators will get to the point where they pay no more attention to a 
point of order than a hog does to Sunday.
  Section 101 of S. 1, the Unfunded Mandate Reform Act of 1995, amends 
title 4 of the Congressional Budget and Impoundment Control Act of 
1974, and adds a new section 408 to that title to create a point of 
order that precludes consideration of legislation in the Senate 
regarding unfunded mandates. Section 904(b) of the Congressional Budget 
Act currently authorizes a motion to waive points of order under titles 
3 and 4 of the Congressional Budget Act by a majority vote, and would 
thus provide a waiver for this new point of order.
  I have already mentioned Rule XVI of the Standing Rules of the 
Senate, which prohibits proposing amendments that are legislative in 
character to general appropriations bills.
  I say it once again to you mayors and Governors who may be listening. 
Under Senate precedents, the Chair seldom gets to rule on this point of 
order because the proponent of the amendment may raise the defense of 
germaneness which is then submitted to the Senate for decision and 
decided by a majority vote. This procedural vote by the Senate should 
be based on whether the proposed Senate amendment is germane to some 
legislative language in the House 
[[Page S1701]] passed bill. However, it has now simply become a 
substantive vote on the Senate amendment. In many instances, those 
Senators who support the amendment vote that it is germane and those 
who oppose the amendment vote that it is not germane, despite the fact 
that they are being asked to resolve a procedural issue. In this way 
valid procedural constraints are frequently sacrificed for transient 
substantive ends.
  Mr. President, since the beginning of the Republic, the Federal 
Government has imposed important and necessary requirements on the 
States. The Constitution requires the States to have elections, even 
though the Federal Government does not pay one penny for them. It 
requires States to allow defendants a fair trail. Those Federal 
requirements on the States transcend mere financial considerations. 
They fall into a higher category. They represent bedrock beliefs and 
sacred values held by all Americans to be of paramount importance. Fair 
elections, fair trails--each of these, Mr. President, lies at the very 
heart of what makes up the American tradition, and no point of order 
should deter us from continuing to uphold those values because we fear 
a 30-second spot or a misrepresentation of a procedural vote.
  But the point of order in the bill will simply add to an already 
cumbersome process. It will be nearly impossible, as the Director of 
the Congressional Budget Office has said, to issue cost estimates in a 
time fashion. How can we expect CBO to canvas the 87,000 State, local, 
and tribal governments throughout the Nation with anything resembling 
efficiency? The answer, Mr. President, is that we cannot.
  We will simply see a trampling over, a mad rush to put aside, to 
waive the points of order. That is one thing I think we can expect to 
see. We could very well see a situation whereby the agenda of this 
institution is set, not by the majority and minority leaders, but by a 
small group of budget analysts in the basement of the CBO. But here 
again I think that will be avoided by simply waiving points of order.
  Senators need only think back to the closing days of the last 
Congress, when various health-care bills were waiting for CBO scoring 
data, to see how that situation could develop. Is that what Senators 
want? Do we really want the agenda of Congress set on the basis of how 
fast a budget analyst can do his job? Do we really want to be told 
that, despite our wishes, we cannot go to a particular bill because the 
cost estimate is not ready? That, Mr. President, is absurd.
  Because of these problems, I was pleased to join my colleague, 
Senator Levin, in support of his substitute amendment. The Levin 
amendment was, in effect, a complete substitute based on the version of 
the bill that we considered last Congress. That version, as I have 
noted, did not contain the point of order. It was a good substitute, 
and one that should have been adopted.
  Mr. President, as I have previously stated, and as my vote in favor 
of the Levin substitute showed, I am a supporter of an unfunded 
mandates bill. I believe that, under certain circumstances, if we in 
Congress require the States to carry out our laws, then we should pay.
  We should not offload that financial burden on the States.
  Notwithstanding the fact that I did not vote for this bill, I would 
like to compliment the efforts of those Senators on both sides of the 
aisle who worked hard to improve S. 1. Senator Glenn, of course, 
deserves more than a fair share of credit for the time and the energy 
he put into the bill in committee and here on the floor. Senator Levin, 
too, deserves an enormous amount of credit for the number of hours he 
has been here, lending us his expertise, and asking of the managers 
probing questions designed to get at the heart of the matter.
  Finally, I offer my congratulations to the distinguished Senator from 
Idaho [Mr. Kempthorne], who, while we are not in agreement on most of 
the amendments offered, demonstrated throughout a high sense of purpose 
and immaculate fairness to all of us. He is a man of extraordinary good 
sense, a man of civility, a gentleman, and I have no doubt that he will 
go far in this institution.
  Then I extend my congratulations to Senator Boxer, Senator Murray, 
Senator Bingaman, and others for the job they performed in coming 
forward with good, meaningful amendments.
  I compliment the minority. This is a big minority. This is not a 
fledgling or small minority. There are 47 Senators on this side of the 
aisle. There were only 44 Senators in the minority on the other side of 
the aisle in the last Congress; 44. But in this Congress, the minority 
has 47 Members.
  I think the minority played an important and meaningful role in 
slowing down this legislation--saying, ``Let us hold on a bit; not so 
fast.''--in amending it, in improving it, debating it, and exposing its 
weaknesses. The minority has refused to be run over by the majority 
steamroller, and that is as it should be. As a result, this legislation 
which has just passed has been improved, and it is better understood.

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