[Congressional Record Volume 141, Number 47 (Tuesday, March 14, 1995)]
[Senate]
[Pages S3875-S3889]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
UNFUNDED MANDATE REFORM ACT OF 1995--CONFERENCE REPORT
Mr. KEMPTHORNE. Mr. President, I submit a report of the committee of
conference on the Unfunded Mandate Reform Act of 1995 and ask for its
immediate consideration.
The PRESIDING OFFICER. The report will be stated.
The assistant legislative clerk read as follows:
The committee on conference on the disagreeing votes of the
two Houses on the amendment of the House to the bill (S. 1)
to curb the practice of imposing unfunded Federal mandates on
States and local governments; to strengthen the partnership
between the Federal Government and State, local and tribal
governments; to end the imposition, in the absence of full
consideration by Congress, of Federal mandates on State,
local, and tribal governments without adequate funding, in a
manner that may displace other essential governmental
priorities; and to ensure that the Federal Government pays
the costs incurred by those governments in complying with
certain requirements under Federal statutes and regulations;
and for other purposes, having met, after full and free
conference, have agreed to recommend and do recommend to
their respective Houses this report, signed by all of the
conferees.
The PRESIDING OFFICER. Without objection, the Senate will proceed to
the consideration of the conference report.
(The conference report is printed in the House proceedings of the
Record of March 13, 1995.)
The PRESIDING OFFICER. There will be 3 hours debate equally divided
on the conference report.
Mr. KEMPTHORNE. Mr. President, I ask for the yeas and nays on the
vote on the conference report on S. 1.
The PRESIDING OFFICER. Is there a sufficient second?
There is a sufficient second.
The yeas and nays were ordered.
Mr. KEMPTHORNE. It is my understanding that vote will occur tomorrow,
immediately following the 10:30 cloture vote.
The PRESIDING OFFICER. The Senator is correct.
Mr. KEMPTHORNE. Mr. President, we have certainly come a long way
since May 1993 when we first began this effort. Now, 22 months later--
with Governors, mayors, county commissioners, tribal leaders, school
board members, and business leaders throughout the country looking on--
Congress is about to end the debate on mandate relief, and begin a new
partnership with States, cities, counties, tribes, schools, and the
private sector by voting on final passage of the conference report on
S. 1 the Unfunded Mandates Reform Act of 1995.
This bill has been described as landmark legislation, as far-reaching
and visionary. It is all of those. Ever since 1791 when the 10th
amendment was first ratified the Federal Government has slowly eroded
the power of the States. Today, with passage of S. 1, we begin to
reverse that role. S. 1 is founded on the premise of responsibility and
accountability. This will change the mind set of Washington, DC, from
this point forward.
First, it requires the Federal Government to know and pay for the
costs of mandates before imposing them on State, local, and tribal
government.
Second, the Federal Government should know the costs and impacts of
mandates before imposing them on the private sector.
S. 1 thoroughly reforms the process by which Congress and Federal
agencies impose new mandates on the public and private sector. Congress
must identify the costs of new mandates imposed on State and local
governments and the private sector. Congress must pay the costs of the
new mandates on State and local governments by either providing
spending, increasing receipts or through appropriations. If a mandate
is to be paid for with a future appropriation, the appropriation must
be provided for the mandate to take effect. If subsequent
appropriations are insufficient to pay for the mandates, the mandates
will cease to be effective unless Congress provides otherwise by
[[Page S3876]] law within 90 days of the beginning of the fiscal year.
This process is enforced by a point of order. Legislation
that does not meet these requirements can be ruled out of order,
blocking further consideration in the House and Senate. Debate
continues only if a majority of the House and Senate votes to do so. A
rollcall vote will decide whether the Senate and House should consider
unfunded mandate legislation. S. 1 applies to all legislation--
committee bills, House and Senate floor amendments, motions and
conference reports--containing mandates.
Required cost estimates of legislated mandates will be done by the
nonpartisan Congressional Budget Office. CBO will consult with State
and local officials in preparing estimates.
Existing State and local government mandates will be reviewed by the
Advisory Commission on Intergovernmental Relations. This Commission,
comprised of State, local and Federal officials, will report to the
President and Congress on existing mandates that should be modified or
repealed. The Commission's final report is due in 12 months.
In developing legislation and Federal rules affecting State and local
governments, Congress and Federal agencies are to consult with State
and local government officials in the drafting of legislation.
S. 1 does not apply to certain mandates, including those that enforce
constitutional rights of individuals, prohibit discriminations on the
basis of race, age, religion, national origin, handicapped or
disability status, are necessary to protect national security or
provide for emergencies.
S. 1 applies to legislation being considered in Congress that imposes
mandates of greater than $50 million on State and local governments and
$100 million on the private sector. S. 1 applies to regulations being
considered by Federal agencies that are greater than $100 million. S. 1
will apply to legislation considered in Congress either 90 days after
additional appropriations are provided to CBO to do required cost
estimates or January 1, 1996, whichever comes first.
S. 1 got better and smarter during the legislative process. S. 1 was
better than last year's bill; after floor consideration, S. 1 was
better than when it was first introduced. The record will show that a
number of Senators made important contributions to this bill. My
approach to amendments was simple. If they improved the bill, if they
clarified the bill, if they made the bill smarter, I wanted to get
those amendments in this bill. There were 9 strengthening amendments to
S. 1 that were agreed to and we tabled 18 weakening amendments. Two
examples of amendments that strengthen S. 1 were Senator Byrd's
amendment that improved and perfected the point of order and Senator
McCain's amendment that applied the point of order to appropriations.
I felt we took a solid bill in S. 1 to the conference committee, and
as chairman of the conference, I worked to protect the Senate position.
Virtually every amendment adopted by the Senate is in this report.
As Senators know, it took several weeks of negotiations between the
House and Senate to write this final conference report. I want to
review the major issues that the conferees had to resolve.
First, there is the issue of judicial review. As Senators know S. 1
said that nothing in this bill was judicially reviewable. The House
bill provided that virtually everything contained in its unfunded
mandates bill would be reviewed by courts.
To understand the significance of these two approaches, remember that
in S. 1 we required that federal agencies do cost/benefits analyses of
mandates imposed on State, local and tribal Governments. In S. 1 we
added a cost benefits analysis for the private sector. This requirement
began as a codification of the Reagan Executive order on federalism and
was designed to provide general direction to agencies and foster
greater sensitivity on the issue of mandates. The Executive order did
not provide for review of agency compliance with the Executive order's
requirements and it also allowed agencies to seek waivers of the
requirements imposed by the Executive order for cause.
I supported the lack of judicial review in S. 1 for good reason.
First, my State of Idaho has been devastated by the ability of private
individuals and philosophically motivated groups to slow down or stop
legitimate and necessary natural resource industries in my State
through the use of judicial review of agency decisionmaking. Timber and
salvage sales for one have been delayed to the point that the forests
of Idaho have been turned into a tinder box for yearly summer forest
fires. Second, I supported the concept of no judicial review in the
original S. 1 because I did not think that the requirements of title I
of this bill, with their emphasis on legislative operation should allow
judicial review. I saw a possibility of unconstitutional interference
if we were to invite the judicial branch into the workings of Congress.
The House bill, H.R. 5, differed from S. 1 in a most significant way.
The House did not include in its bill a prohibition of judicial review.
In fact instead of addressing it, the House bill simply avoided the
issue entirely. As a result, under H.R. 5, all agency rulemakings would
be subject to the Administrative Procedures Act in title 5 of the
United States Code. Under the House bill, virtually everything could be
reviewed and interpreted by the courts. Courts could have the power to
say whether a cost estimate was correctly prepared, whether agencies
had consulted enough economists, or had consulted the right experts.
Further, courts could have stopped any and all rules from being issued
pending the completion of this analysis.
I am no fan of agency rulemakings. I support agency rulemaking
moratoriums. We have had enough rules and the people of America want
and need a rest from the heavyhanded Federal bureaucrats who make their
livelihoods from dictating Federal policy to the people who pick up the
tab. But neither am I a proponent of putting lawyers to work
challenging rules for the sake of delay or wasting the taxpayers money
in time consuming Federal rules that languish in the courts.
Therefore, in conference we were faced with a couple of very
difficult problems. We had a Senate bill which passed with a 90-percent
majority without judicial review and we had a House bill which had
passed with an almost identical percentage of approval which had
virtually unfettered judicial review. The main reason that the House
wanted judicial review was the belief that Federal agencies were
ignoring the requirements of Congress. One of the statutes they cited
in support of their assertion was the Regulatory Flexibility Act. That
act is not judicially reviewable and there is general belief that the
agencies have a poor record of compliance. The House therefore wanted
to make sure that the executive branch would observe the requirements
of Congress--not an unreasonable request.
As a result of the inherent conflict between the parties on this
issue, I suggested that we develop a checklist approach to a limited
judicial review. The theory would be that we should provide a method
which would ensure that agencies would provide the analysis without
allowing courts to impose their judgement on the subjective quality of
the agency's compliance. It is important to note that the analyses
required by S. 1 act as additional requirements on statutes creating
mandates. We call the statute actually creating the mandate the
underlying statute. We wanted to ensure that the cost/benefits
requirements of S. 1 would not supersede cost/benefit analyses in
either an existing law or require a cost benefit analysis where one was
specifically prohibited in an underlying statute.
The conference committee reviewed what title II directed agencies to
do to make sure that agencies could meet the requirements. We cannot
complain of an agency's failure of compliance with the requirements of
Congress if
we are irresponsible in what we ask them to do and if we are vague in
our instructions. Therefore we had to redraft the requirements of title
II in S. 1 to make sure that those requirements were tighter, more
efficient and addressed the problem we sought to resolve.
Let me take a second to talk about the changes to title II of S. 1 as
it comes out of conference. Recognize that most of the changes to title
II are as a result of our need to tighten up
[[Page S3877]] the requirements if we are going to have judicial
review.
S. 1 as passed by the Senate provided that agencies would assess the
effect of mandates on State, local government and the private sector
and seek to minimize the burdens. However, if you are going to allow
judicial review, minimizing the burden is so unspecific and so
subjective that virtually every rulemaking would be challenged on that
basis alone.
S. 1, as passed by the Senate, provided that agencies would develop a
plan to allow elected State, local and tribal officials to have input
into agency rulemakings, but there was some fear that the Federal
Advisory Committee Act could be used to prevent local officials from
meeting with Federal officials. Judicial review of this issue would be
a haven for lawyers. As a result of some of these problems and others,
we knew that some redrafting of title II would be in order and would be
necessary.
Title II as it comes out of conference is more objective, more
achievable and more effective than in either the House or Senate passed
bills.
Title II provides that for every rulemaking each agency should assess
the effects of regulatory action on States, local governments and the
private sector. For significant rulemakings, which are judicially
reviewable, an agency shall provide; a written statement of the
authority under which the agency is proceeding; a qualitative and
quantitative assessment of the cost and benefits of the rule;
estimates, to the extent its feasible to determine it, of the future
compliance costs of the mandate and any disproportionate effect on
particular regions of the country or sectors of the economy; a macro
economic analysis of the effect of the rule on the national economy;
and, a description of the agency's contacts with State, local and
tribal governments.
New in title II is a provision which clarifies that the Federal
Advisory Committee Act does not apply to meetings between Federal
officials and elected officers of State, local and tribal governments
where those officials want to make their views, and the views of their
constituents known. Local officials should not be shut out of the
process. We want to know their views and get their advice.
We also added a provision previously in the House bill which requires
that agencies identify and consider the least costly, most cost-
effective or least burdensome alternative to achieve the objective of
the rule containing a federal mandate. We require the OMB director to
report specifically on this least burdensome regulation requirement in
1 year and we require an annual statement from the OMB director on
agency compliance with title II.
The judicial review provision in the conference report of S. 1,
provides limited scope of review under the APA if an agency unlawfully
withholds or unreasonably delays compliance with the requirements of S.
1. A court would look to see if the agency had prepared the written
statement required by section 202 and 203. If the analyses, statement,
description or written plan were not completed the court could compel
the agency to complete the requirements of section 202 and 203.
However, to ensure that Federal rules were not delayed by endless
litigation, S. 1 provides that failure by the agency to provide the
analyses, statement, description or written plan could not be used to
stay, enjoin, invalidate or otherwise affect the rule.
We also wanted to make sure that the underlying analysis needed to
substantiate a rule under the requirements of S. 1 couldn't be used to
invalidate the rule under some
other rulemaking requirement in the underlying statute which imposed a
mandate. But, if the analysis which was used to meet S. 1 requirements
was provided pursuant to the underlying statute which imposed a
mandate, then a court in review could invalidate the rulemaking based
on that underlying statute.
Finally, S. 1 provides a limitation of 180 days on the time under
which an action could be filed unless the underlying statute provided a
different period. The judicial review provisions apply to proposed
regulations issued after October 1, 1995.
No other provision of S. 1 is judicially reviewable. Title I deals
with the requirements of Congress, and judicial review is not
appropriate for the internal actions of Congress. Title III deals with
ACIR's review of existing mandates and judicial review is not at issue.
The remainder of title II deals with either general requirements that
do not lend themselves to judicial review or with analyses which are
essentially subjective--like the least burdensome option requirement
added to the conference report on S. 1.
In all, I think we have developed a system which addressed the
concerns in the House compelling agencies to comply with the
requirements of Congress while being responsible to the agencies we
have asked to perform.
Last December I spoke at the annual meeting of the Council of State
Governments. On the stage, next to the podium, was the flag of the
United States of America. And behind us, as a backdrop, were the flags
of each of the 50 States. I told the folks who were gathered there,
``That flag of the United States of America represents the greatest
nation in the world! But let us not lose sight of the fact that its
greatness is comprised of the 50 sovereign states that make up the
United States. We are the United States of America, we are not the
Federal Government of America!''
For the past two decades, the Federal Government has dominated our
States and cities. Congress and the executive branch have not been
partners with States and cities. The Federal Government has been the
overseer and the mandate maker, telling States and cities what to do,
when, where, and how, but never paying for it.
Congress passed legislation without ever knowing the costs or
consequences of their actions on State and local governments. The
mandates made Congress feel good, and, for a while, even look good back
home.
But this is not the federalism that our Founding Fathers intended.
Stanley Aranoff, who is the senate president in Ohio, stated,
The Constitution, and specifically the 10th Amendment,
guarantees that certain functions will be performed by
certain levels of government, thus ensuring direct
accountability of the elected official to the voters. Our
Constitution guarantees a federal, state, and local
partnership. Unfunded mandates undermines, blurs, and
corrupts that fundamental understanding upon which our
governmental framework is based.
One of the big steps forward, I believe, in helping to reaffirm the
10th amendment rights is the effort to stop these unfunded Federal
mandates which are simply hidden Federal taxes. We should not be paying
for national programs with local property taxes.
This legislation forces Congress and agencies to know the mandate
costs it imposes on the public and private sector. It requires Congress
to pay for mandates imposed on State and local governments, and go on
record with a vote when it does not.
S. 1 reflects a philosophy of limited government, that the best
government is the government that governs least and to let local issues
be decided by local officials and their citizens.
Those local officials set their priorities based on their finite
resources. But for years, Congress has not had to
worry about that. We come to the floor, and stand up and argue
righteously and with great passion about the problems that are facing
the United States, knowing full well that until now, we have not been
held accountable. Congress has not had to pay for it. Those mandates
have not been part of the Federal budget process, and the local
governments end up paying for it, because it is mandated by Congress.
The Federal Government has, in essence, made local and State elected
leaders nothing more than Federal tax collectors. Those officials have
been very vocal about how they resent that, and they have every right
to resent it.
Ben Nelson, the Democratic Governor of Nebraska, pretty well sums up
the frustration of the States when he says: ``I was elected Governor,
not the Administrator of Federal programs for Nebraska.''
Now, people say, ``How much do these Federal mandates cost?'' Nobody
knows. Congress does not know, because we have never, ever asked that
question before voting on them.
And so we must be intellectually honest. If it is a Federal program,
pay for it with Federal money, if it is State, pay for it with State
money, and if it is local, pay for it at the local level.
[[Page S3878]] Mr. President, this moment would not be possible
without my partners in State and local government, and the private
sector. I close my remarks by reminding Senators that S. 1 is strongly
endorsed by the: U.S. Conference of Mayors, National Association of
Counties, National Governors Association, National Conference of State
Legislatures, National Association of School Boards, National League of
Cities, the U.S. Chamber of Commerce, National Association of
Homebuilders, National Association of Realtors, NFIB, and the Small
Business Legislative Exchange Council.
I want to thank the citizens of Idaho for the opportunity they have
given me in serving in the Senate. I hope they will take a small
measure of pride that the effort to reform unfunded mandates was born
in Idaho.
There are many people who made significant contributions to this
process that I would like to thank. I want to especially thank our
majority leader, Senator Bob Dole. His support and commitment to
mandate relief was critical to our success. His designation of our
mandate legislation as S. 1 insured that we would have the highest
priority for the 104th Congress. I also want to acknowledge the
dedication and hard work for my Senate colleagues on the conference
committee. First, of course, is my long time partner on mandate relief
Senator John Glenn. As we began this crusade we repeatedly stressed
that relief from Federal mandates was not a Republican issue or a
Democratic issue. We knew that if we were to be successful we had to
keep the debate nonpartisan and focused on the merits of the issue.
Without John Glenn that would not have been possible and we would not
be here today voting on final passage of mandate relief legislation. I
believe our friendship and partnership have deepened during this
process.
I note that last session, when the Democratic Party was the majority
party and Senator Glenn was the chairman of the Governmental Affairs
Committee, this was not necessarily a popular issue to take up. But he
scheduled the hearings, he held the hearings, and he forged a
partnership with me so we could come forward. It has allowed us to be
where we are today. Ohio is rightfully proud of Senator Glenn.
Two key members of our conference team were the Republican chairmen
of the two committees of jurisdiction, Senator Roth of Governmental
Affairs and Senator Domenici of the Budget Committee. These two
experienced and knowledgeable leaders gave me valuable advice and
constant support throughout the conference process and were
instrumental in moving us toward the successful conclusion we have
before us today.
Also my friend Senator Jim Exon, the ranking member of the Budget
Committee who offered valuable insight during the committee process.
Senator Exon has been a long-time supporter of relief from mandates and
cosponsored my original bill in the last session of Congress.
Many other Senators--Democrats and Republicans--on both sides of the
aisle have made enormous contributions to this legislation. I want to
thank Senators Craig, Burns, Coverdell, and Gregg for being the
original cosponsors of the first bill I introduced in Congress, and to
Senators Hatch and Brown for their help.
And I must give a great amount of credit and thanks to our House
colleagues.
Speaker Gingrich also made this a high priority, and he so stated
repeatedly. Chairman Bill Clinger of the Government Reform and
Oversight Committee and Congressman Rob Portman were terrific teammates
and diligent partners on this legislation. We have had other strong
partners in Congressmen Gary Condit, David Dreier, and Tom Davis.
I have often mentioned that mandate relief legislation was my top
priority when I came to Congress. I want to acknowledge those members
of my personal staff that worked so long and hard in helping me
accomplish this important personal goal. My lead person in conference
and the principal author of the final bill, my legislative director
W.H. ``Buzz'' Fawcett, who was my city attorney when I was mayor of
Boise, Gary L. Smith, my deputy legislative director who also came with
me from Boise where he was a city council member and my administrative
assistant, and my current administrative assistant in the Senate, Brian
Waidmann who brought his invaluable experience and expertise on
congressional process to our team.
But most of all I would like to share this victory with my family: my
wife Patricia, my daughter Heather, and son Jeff. Perhaps only other
Members of Congress can fully appreciate the sacrifices our families
make on our behalf. I have a very special family that I appreciate very
much.
I want to conclude by reading to you a quote from a Founding Father,
James Madison. Here is what he said:
Ambitious encroachments of the federal government on the
authority of the state governments, would not excite the
opposition of a single state, or of a few states only. They
would be signals of general alarm. Every government would
espouse the common cause. A correspondence would be opened,
plans of resistance would be concerted, one spirit would
animate and conduct the whole.
James Madison, the great visionary, predicted that this sort of thing
would happen by the Federal Government. But he also said that someone
will band together and stop it. And that is what S. 1 is all about.
Mr. President, I yield the floor and reserve the remainder of my
time.
Mr. GLENN addressed the Chair.
The PRESIDING OFFICER. The Senator from Ohio.
Mr. GLENN. Mr. President, this is a day that has been long in coming.
We have worked for the better part of 2 years to get this legislation
to the point where it is now, out of conference and here to get its
final stamp of approval by the U.S. Senate. And with the same action
taking place over in the House, that means this legislation will
finally go to the President, who has announced his support for this
legislation.
This has been a long process. To those not directly involved in all
the committee work and I do not know how many hundreds of meetings and
so on involved with all of this, without having been involved directly
with some of that, I think it is difficult to appreciate what has
happened with regard to this legislation.
It is landmark legislation. I think we have come up with a very
excellent product here, one that literally does change the relationship
between the Federal, State and local governments for the first time in
probably 55 or 60 years.
This is legislation that passed the Senate back in January by a vote
of 86 to 10, and my hope is that we will be able to pass this bill
through the House and Senate tomorrow morning and get it to the
President shortly.
Before I go into a description of the conference report, I would like
to provide just a little bit of background to the whole unfunded
Federal mandates debate.
On October 27, 1993, State and local elected officials from all over
the Nation came to Washington and declared that day to be ``National
Unfunded Mandates Day.'' These officials conveyed a very powerful
message to Congress and the Clinton administration on the need for
Federal mandate reform and relief. They raised four major objections to
unfunded Federal mandates.
First, unfunded Federal mandates impose unreasonable fiscal burdens
on their budgets.
Second, they limit State and local government flexibility to address
more pressing local problems like crime and education.
Third, Federal mandates too often come in a one-size-fits-all box
that stifles the development of what might be more innovative local
efforts--efforts that ultimately may be more effective in solving the
problem the Federal mandate is meant to address.
And, fourth, they allow Congress to get credit for passing some
worthy mandate or program, while leaving State and local governments
with the difficult task of cutting services or raising taxes in order
to pay for it. And that fourth item was probably the most important of
all.
In hearings held by the Committee on Governmental Affairs in both
this and the last Congress, we heard testimony from elected State and
local officials from both parties representing all sizes of
government--State, local, county, townships, all levels and all sizes
of government. It was clear from
[[Page S3879]] the testimony that unfunded mandates hit small counties
and townships just as hard as they do big cities and larger States.
I think it is worth stepping back and taking a look at the evolution
of the Federal-State-local relationship over the last decade and a
half, so we can put this debate into some historical context. I believe
the seeds from which sprang the mandate reform movement can literally
be traced clear back to the so-called policy of new federalism, a
policy which resulted in a gradual but steady shift in governing
responsibilities from the Federal Government to State and local
government over the last 10 to 15 years. During that time period,
Federal aid to State and local governments was severely cut or even
eliminated in a number of key domestic program areas. At the same time,
enactment and subsequent implementation of various Federal statutes
passed on new costs to State and local governments. In simple terms,
State and local governments ended up receiving less of the Federal
carrot and more of the Federal stick.
The actual cost of Federal mandates.
Let us examine the cost issue first. While there has been substantial
debate on the actual costs of Federal mandates, suffice it to say that
almost all participants in the debate agree that there is not complete
data on Federal mandates to State and local governments. In fact, one
of the major objectives of S. 1 is to develop better information and
data on the cost of mandates and to force that to be considered up
front. Likewise, there is even less information available on estimates
of what potential benefits might be derived from selected Federal
mandates--a point made by representatives from the disability,
environmental, and labor community in the committee's second hearing in
the last Congress.
Nonetheless, there have been efforts made in the past to measure the
cost impacts of Federal mandates on State and local governments.
And those efforts do show that costs appear to be rising. Since 1981,
CBO, the Congressional Budget Office, has been preparing cost estimates
of major legislation reported by committee with an expected annual cost
to State and local governments in excess of $200 million. According to
CBO, 89 bills, with an estimated annual cost in excess of $200 million
each, were reported out of committee between 1983 and 1988.
I would point out one major caveat with CBO's analysis--it does not
indicate whether these bills funded the costs or not, nor how many of
the bills were eventually enacted. Still, even with a rough
calculation, CBO's analysis shows that committees reported out bills
with an average estimated new cost of at least $17.8 billion per year
to State and local governments. In total, 382 bills were reported from
committees over the 6-year period with some new costs to State and
local government. So, if anything, the $17.8 billion figure is a
conservative estimate for reported bills.
Federal environmental mandates head the list of areas that State and
local officials claim to be the most burdensome. A closer look at two
of the studies done on the cost of State and local governments of
compliance with environmental statutes does indicate that these costs
appear to be rising. A 1990 EPA study, titled ``Environmental
Investments: The Cost of a Clean Environment,'' estimates that total
annual costs of environmental mandates from all levels of Government to
State and local governments will rise from $22.2 billion in 1987 to
$37.1 billion by the year 2000--an increase in real terms of 67
percent.
EPA estimates that the cost of environmental mandates to State
governments will rise from $3 billion in 1987 to $4.5 billion by the
year 2000, a 48-percent increase. Over the same timeframe, the annual
costs of environmental mandates to local governments is estimated to
increase from $19.2 billion to $32.6 billion. That is a 70-percent
gain.
According to the Vice President's National Performance Review, the
total annual cost of environmental mandates to State and local
governments, when adjusted for inflation, will reach close to $44
billion by the end of this century.
The city of Columbus, in my home State of Ohio, also noted a trend in
rising costs for city compliance with Federal environmental mandates.
The mayor of Columbus, Gregg Lashutka, has taken a personal interest in
this and has done a superb job in detailing what the impact is on a
medium-sized U.S. city from Federal mandates.
Our Governor, George Voinovich, has represented the National
Governors Association in his representation of wanting this legislation
through all and has given a lot of information that has come from the
Governors across the country on this. Probably the most definitive
study of all, as far as the impact on the city, is what Mayor Lashutka
has done in Columbus, OH.
In his study, the city concluded that its cost of compliance for
environmental statutes would rise from $62.1 million in 1991 to $107.4
million in 1995. That is--in 1991 constant dollars--a 73-percent
increase. The city estimates that its share of the total city budget
going to pay for the mandates will increase from 10.6 percent to 18.3
percent over that timeframe. This is just one medium-sized American
city.
In addition to environmental requirements, State and local officials
in our committee hearings cited other Federal requirements as
burdensome and costly. They highlighted compliance with the Americans
with Disabilities Act and the Motor-Voter Registration Act, complying
with the administrative requirements that go with implementing many
Federal programs and meeting Federal criminal justice and education
requirements.
Now, I note that while each of these individual programs or
requirements clearly carries with them costs to State and local
governments, costs which we have too often ignored in the past, I
believe that on a case-by-case basis, each of these mandates has
substantial benefits to our society and our Nation as a whole.
Otherwise I, along with many of my colleagues in the Senate, would
not have voted to enact them in the first place. State and local
officials readily concede that individual mandates on a case-by-case
basis may indeed be worthy, but when looking at all mandates spanning
across the entire mammoth of Federal laws and regulations, we begin to
understand that it is the aggregate impact of all Federal mandates that
has spurred the calls for mandate reform and relief.
The Advisory Commission on Intergovernmental Relations testified in
our April hearings that the number of major Federal statutes with
explicit mandates on State and local governments went from zero during
the period of 1941 to 1964. In other words, we did not pass along the
bill during that period from 1941 to 1964.
But then it went to the Federal mandates during the rest of the
1960's, went to 25 in the 1970's, and 27 in the 1980's. However, to
truly reach a better understanding of the Federal mandates debate, we
must also look at the Federal funding picture, vis-a-vis State and
local governments.
Addressing that first under Federal aid and to State and local
governments, the record shows that Federal discretionary aid to State
and local governments to both implement Federal policies and
directives, as well as complying with them, saw a sharp drop in the
1980's.
An examination of Census Bureau data on sources of State and local
government revenue shows a decreasing Federal role in the funding of
State and local governments. In 1979, the Federal Government's
contribution to State and local governments' revenues reached 18.6
percent. By 1989, the Federal contribution of the State and local
revenue pie had instead daily shrunk to 13.2 percent before edging up
to 14.3 percent in 1991, the latest year data was available.
What contributed to the declining trend in the Federal financing of
State and local governments? A closer look at patterns in Federal
discretionary aid programs to State and local governments during the
1980's provides the answer. According to the Federal Funds Information
Service, between 1981 and 1990, Federal discretionary program funding
to State and local government rose slightly from $47.5 to $51.6
billion.
However, this figure, when adjusted for inflation, tells a much
different story. Federal aid dropped 28 percent in real terms over the
decade. A number of vital Federal aid programs to State and local
government experienced
[[Page S3880]] sharp cuts, and in some cases outright elimination,
during the decade.
In 1986, the administration and Congress agreed to terminate the
General Revenue Sharing Program. We all remember that one. That was a
program that provided approximately $4.5 billion annually to local
governments and allowed them very broad discretion on how to spend the
funds.
Since its inception in 1972, general revenue sharing has provided
approximately $83 billion to State and local government. Unfortunately,
the Reagan administration succeeded in terminating the program.
Congress followed its lead and approved that. There were other
important Federal and State and local programs that were substantially
cut back between 1981 and 1990. They include the economic development
assistance, community development block grants, mass transit, refugee
assistance, and low-income home energy assistance.
Luckily, under both the Bush and Clinton administrations, we managed
to restore some of the needed funding--I repeat, needed funding--to
these programs. And still, in real dollars, funds for discretionary aid
programs to State and local governments remain today 18 percent below
their 1981 levels. That is despite the fact we have put more of an
unfunded mandates load onto the backs of the State and local
governments.
Looking at our committee's legislative efforts in the last Congress,
eight bills were referred to the Governmental Affairs Committee that
touched on this aspect of the unfunded mandates Federal mandates
problem.
After two hearings, we marked up a bill. I think it could be called,
at least in part, a compromise bill. The basic part of it, though, was
the bill that Senator Kempthorne has submitted, and it became the
vehicle that borrowed the best of the various provisions and
requirements from the bills that had been submitted. It was basically--
the basic bill--his work.
We worked closely in a deliberative, bipartisan fashion, and he was
the de facto leadership on this issue. Along with other Members, and
with the administration, we moved ahead with this legislation. What
became known as the Kempthorne-Glenn compromise has the endorsement and
strong support of the seven groups representing State and local
governments. They are the National Governors Association, the National
Conference of State Legislators, the Council on State Governments, the
National League of Cities, the U.S. Conference of Mayors, the National
Association of Counties, and the International City Management
Association. It had the backing of the Clinton administration, and was
endorsed by such editorial boards as the New York Times, the Cleveland
Plain Dealer, and other newspapers across the country, both large and
small. That largely embodies or includes, also, all that we had last
year in Senate bill 993.
Let me just say that on this bill, if there is anyone who can be
looked at as the father of this bill and the one who really kept going
on this and kept interest going, it is Senator Kempthorne. He did a
magnificent job on this bill, not only here in Washington, but he
traveled all over the country, meeting repeatedly with different groups
representing those seven organizations that I just mentioned in getting
their views on this legislation and bringing it back, putting it
together. And he did a superb job in keeping contact with all these
people. He deserves the full credit for being the sparkplug for this
legislation.
(Mr. GORTON assumed the chair.)
Mr. GLENN. Mr. President, let me explain what the bill does.
It requires the Congressional Budget Office to conduct State, local
and tribal cost estimates on legislation that imposes new Federal
mandates in excess of $50 million annually onto the budgets of State,
local, and tribal governments. The current law requires these estimates
at a $200 million threshold, and I believe that that high a figure
allows a lot of Federal mandates to slip through without being scored.
Two hundred million dollars spread equally among all the States may not
be much, but if it falls particularly hard on any one State or any one
region, which does happen with legislation, it can be a substantial
impact.
Let me make clear, however, that what CBO will score here are new
Federal mandates--new Federal mandates--not what State, local, and
tribal governments are spending now to comply with existing mandates,
nor what they are spending to comply with their own laws and mandates.
Second, and I think most importantly, is that the bill holds Congress
accountable for imposing additional unfunded Federal mandates. We do
this by requiring a majority point-of-order vote on any legislation
that imposes new unfunded Federal mandates in excess of a $50 million
annual cost to State, local, or tribal governments.
To avoid the point of order, the sponsor of the bill would have to
authorize funding to cover the cost to State and local governments of
the Federal mandate or otherwise find ways to pay for the mandate. This
could come from the expansion of an existing grant or subsidized loan
program or the creation of a new one or perhaps a raising of new
revenues or user fees.
The authorizing committee must also build into the legislation
certain provisions to go into effect if funds for the mandate are not
fully appropriated or not appropriated at all. This was the basic
thrust of the Byrd amendment which the House receded to in conference
and accepted in its entirety. The House bill would have left the fate
of an unfunded or underfunded mandate in the hands of the Federal
bureaucracy rather than in the hands of Congress where it properly
lies.
Under the Byrd amendment, the authorizing committee would have to put
expedited procedures into the underlying intergovernmental mandates
bill that would direct the relevant Federal agency to submit a
statement based on a reestimate done in consultation with State, local,
and tribal governments that appropriations are sufficient to pay for
the mandate or the agency submits legislative recommendations to
implement a less costly mandate or to render the mandate ineffective
for the fiscal year.
Under the expedited procedures, the authorizing committee must
provide for consideration in both Houses of the agency statement or
legislative recommendations within 60 calendar days. After the 60-day
time period expires, the mandate ceases to be effective unless Congress
provides otherwise by law. And I will discuss the Byrd amendment in
greater detail a little later in my statement.
The conference report on S. 1 also includes provisions for the
analysis of legislation that imposes mandates on the private sector.
CBO would have to complete a private sector cost estimate on bills
reported by committee with a $100 million or more annual cost
threshold. In the Senate bill, we had a threshold of $200 million and
the House had $50 million as their threshold, so we split the
difference and wound up with $100 million being our threshold.
We do exempt certain Federal laws from this bill. Civil rights and
constitutional rights are excluded. National security, emergency
legislation, and ratification of international treaties are also
exempt.
I want to also point out that the bill does not prohibit Congress
from passing unfunded Federal mandates. Let me repeat that. It does not
prohibit Congress from passing unfunded Federal mandates. There may be
times when it is appropriate, for whatever purpose, to ask State and
local governments to pick up the tab for Federal mandates. But the
legislation does force us to take into consideration the cost of the
unfunded mandates up front, consider it in its entirety with a point of
order to lie against it if it is not funded. But the debate over
whether it is appropriate to ask State and local governments at times
whether it is a constitutional matter or whatever it might be, to pick
up the tab across the country--all States--let that debate take place
on the Senate floor, as it will under this legislation, and let the
majority work its will on the specific mandate in the legislation.
The Kempthorne-Glenn bill also addresses regulatory mandates. We all
know how the Federal bureaucracy can impose burdensome and inflexible
regulations on State and local governments, as well as on others who
end up trapped in the bureaucracy's regulatory net. In the committee's
November hearing in 1993, we heard testimony from Susan Ritter. She is
county auditor for Renville County, ND. Ms. Ritter
[[Page S3881]] noted that she comes from the town of Sherwood in her
State with a total population of 286 people, and they will have to
spend $2,000, which is one-half of their annual budget on testing the
water supply in order to comply with certain EPA regulations.
Clearly, there is no way that that town is going to be able to meet
this kind of a requirement. So, consistent with the President's
Executive orders, we have required that Federal agencies conduct cost-
benefit analysis and assessments on major regulations that impact
State, local, and tribal governments, as well as the private sector. We
have allowed a limited judicial review of agency preparation of some of
those assessments and analysis. The House would have allowed full scale
judicial review of practically everything, of both the agency analysis
and the CBO cost estimates. This could have been a way of almost
shutting down the whole regulatory process, as we saw it.
Enactment of these provisions also would have resulted in what I
termed the Lawyers Full Employment Act, and would have had the law
firms along K Street breaking out the champagne all over. So we
significantly curtailed and narrowed and focused the judicial review
requirements, which I will discuss in a little more detail a little
later on also.
Further under S. 1, agencies must develop a timely and effective
means of allowing State and local input into the regulatory process.
Given the State and local governments are responsible for implementing
many of our Federal laws, it is not only fair they be considered
partners in the Federal regulatory process, but it is also good public
policy as well.
The bill also requires Federal agencies to make a special effort in
performing outreach to the smallest governments. Then maybe we will be
able to minimize the occurrence of situations like the one that took
place in the town of Sherwood that I mentioned a moment ago.
Let me put the issue into a larger perspective. As we all know, the
Federal, State, and local relationship is a very complicated, a very
complex one. It is a blurry line between where one line's level of
responsibility ends and another begins. All three levels of government
need to work together in a constructive fashion to provide the best
possible delivery of services to the American people in the most cost-
effective fashion. After all, as Federal, State, and local officials,
we all serve the same constituency.
Further, we serve the American people at a time when their confidence
in all three levels of government may be at an all-time low. There are
numerous explanations for this lack of confidence in government, and we
will not go into a long discussion of those here. Vice President Gore's
National Performance Review attributes ``an increasingly hidebound and
paralyzed intergovernmental process'' as at least a part of the reason
why many Americans feel that government is wasteful, inefficient, and
ineffective. We need to restore balance to the intergovernmental
partnership, as well as strengthen it so that government at all levels
can operate in a more cost-effective manner.
Both the administration and a number of my colleagues have made
proposals to shift a number of Federal programs and responsibilities to
State and local governments. Clearly, as this mandates debate has shown
us, I believe we ought to at least experiment to see if State and local
governments can carry out some of these programs in a more effective
fashion than we have been doing at the Federal level.
I know from my years as chairman of the Governmental Affairs
Committee that Americans do want more efficient and less costly
government, and I, for one, do not believe that efficiency and
government need necessarily be an oxymoron statement. We worked on the
Governmental Affairs Committee to bring forth better ways of dealing
with efficiency in the Federal Government, such as the Chief Financial
Officer Act, the Inspectors General Act, Financial Management Act, and
so on, and a number of different things we have done in that area. So
it is not that we have ignored the efficiencies of government, but
certainly we want to make the Government a more efficient and better
and less costly government.
That certainly is a big move. Maybe one way to help accomplish that
objective is to grant more flexibility to State and local governments
and let them run some of these programs.
Where I think we should proceed with some degree of caution, we need
to remember the reason many of these programs became part of the
Federal level was back some 50 or 60 years ago when the country was in
dire straits and we were not able, either would not or could not, at
the State and local level to address problems and concerns of our
citizens that had been dealt with in the family and local communities
up to that time. We found soup kitchens on the corners, and we had
people because of weather changes also--we remember the movies, famous
movies of the Okies going West with a mattress on top of the car, and
so on. The United States had lost its way at that time.
I grew up in that Great Depression. I learned that State and local
governments do not have sometimes the wherewithal and resources to meet
all human needs. That is why President Roosevelt came through with the
New Deal. That was to address economic and social problems that
previously were dealt with by State and local governments or by the
local communities and families themselves more likely. And we followed
the New Deal up with the Great Society and moved more of these programs
up to a national level.
Now, I am the first to say many of these programs may have gone too
far and so we need to tailor things back somewhat. But there has been
and will continue to be the need for Federal involvement and
decisionmaking in many domestic policy areas. But that should not
preclude us from maybe loosening the reins on State and local
governments in some areas or even dropping them entirely.
But we should be careful and look at it on a case-by-case basis, not
with a meat ax approach, not just swinging the ax and taking whole
programs out without considering what is going to happen to a lot of
people.
Unfortunately, the House, in its race to devolve, as they call it,
and seemingly block grant the entire Federal Government, I believe, is
moving much too quickly in areas which should require closer scrutiny
and greater deliberation.
I believe that the conference report on S. 1 will help to restore the
intergovernmental partnership and bring needed perspective and balance
to future Federal decisionmaking.
I think S. 1 is landmark legislation, as I said in starting out my
remarks. I think it is landmark legislation that will help to redefine
for the first time in 60 years the entire Federal, State and local
relationship. And so I obviously urge my colleagues to vote for passage
of this legislation.
I have some remaining remarks concerning the conference report, and I
would like to clarify some of the provisions of the proposed
legislation.
I would first refer to section 425(a)(2)(B)(iii)(III) of the
conference report. Subsection (III) establishes a timeframe for
expedited procedures under which Congress will consider the agency
statement or legislative recommendations under subsections (aa) or
(bb). The timeframe is 60 calendar days from which the agency submits
its statement or legislative recommendations. Under such an expedited
process, the mandate would cease to be effective 60 calendar days after
the agency submission unless Congress provides otherwise by law.
The Senate Parliamentarian has provided us with his interpretation of
the 60-day time period in a letter which has been attached as an
appendix to the conference report. The letter states that a sine die
adjournment ``will result in the beginning again of the day counting
process and that the sine die adjournment of a Congress results in all
legislative action being terminated and any process [the counting of
the 60 days] ended so that it must begin again in a new Congress.''
Thus, if Congress adjourns sine die prior to the end of the 60-day
time period after the agency submission of its statement or legislative
recommendations then the the 60-day time clock terminates and would
start all over again, beginning with day one, when Congress convenes
the next year. In those instances, Congress would then have 60 calendar
days to act on the agency submission or the mandate would cease to be
effective after the 60-
[[Page S3882]] day period expires. Depending on when we convened in
January, the time period would likely expire sometime during the month
of March.
After a discussion with the Parliamentarian, I understand that his
interpretation on the counting of days would also apply after sine die
adjournment of the 1st session of a Congress as well.
This clarification by the Parliamentarian over the counting of days
under S. 1 is critically important. During election years we usually
adjourn sometime in early October. My concern had been that with a
continuous 60-day clock we might be forced in those years to reconvene
for a lame-duck session in December to vote on an agency statement or
legislative recommendation
or otherwise the mandate would cease to be effective. I think as a
general rule we should avoid having to convene lameduck sessions except
in emergencies and times of national crisis.
So I am pleased that the Parliamentarian's ruling would avoid putting
us in a situation of having to schedule lameduck sessions to deal with
agency statements or legislative recommendations.
I would like to clarify another provision in the act. Section
202(a)(2) requires Federal agencies to prepare qualitative and
quantitative assessments of the costs and benefits of Federal mandates
as well as its effect on health, safety, and natural environment. I
believe that the meaning of the word ``effect'' would include both
qualitative and quantitative costs and benefits to health, safety and
the environment as well as other impacts in those areas. Further, the
statement of conferees states that included in the agency written
statement under section 202 ``must be a qualitative, and if possible,
quantitative assessment of the costs and benefits of the
intergovernmental mandate.'' The word ``intergovernmental'' should be
crossed out to make the sentence consistent with the statutory
language. However, the sentence properly notes that a quantifiable
assessment of the costs and benefits of a particular mandate may not be
possible. This difficulty in preparing accurate quantitative
assessments and estimates is noted in the statutory language for both
section 202(a) (3) and (4). Indirect costs and benefits are
particularly difficult to quantify and may be better addressed as part
of an agency qualitative assessment of the Federal mandate.
In addition to addressing indirect costs and benefits, such a
qualitative assessment would also include an assessment of
considerations other than economic costs and benefits but are still
necessary and important in guiding an agency in the promulgation of a
major rule.
I would also like to discuss section 204, dealing with State, local,
and tribal government input into the Federal regulatory process. Both
the House and Senate bills required Federal agencies to develop an
effective process to permit elected State, local, and tribal officials
to provide timely and meaningful input into the development of agency
regulatory proposals containing significant intergovernmental mandates.
The language in both bills was consistent with the President's
Executive order. The House bill, however, implicitly exempted all
meetings and communications between Federal and
State, local, and tribal officials under this process from the Federal
Advisory Committee Act. The House felt that FACA was a bureaucratic
encumbrance that impeded closer coordination between Federal, State,
and local officials in the administration of programs with shared
intergovernmental responsibilities. The Committee on Governmental
Affairs has examined problems with FACA in the past and 3 years ago
reported out unanimously legislation I wrote to reform FACA. The bill
exempted elected State and local officials from some of its
requirements. So I was sympathetic with the House position in this
case. However, I believed that the House language needed to be
tightened and narrowed so as not to give State and local officials an
unfair advantage over others in the administrative process. So we
developed compromise language in section 204(b) to provide an exemption
from FACA for elected State, local, or tribal officials--or their
designated employees with authority to act on their behalf--for
meetings concerning the implementation or management of Federal
programs that ``explicitly or inherently share intergovernmental
responsibilities or administration.'' So we have been careful to limit
the FACA exemption to instances where Federal officials and State,
local, and tribal officials are coimplementers or managers of a
program. We did not want to allow a FACA exemption in instances where
State and local officials are acting as advocates, which is what the
House bill would have likely allowed. Further, we have asked the
administration to promulgate regulations to implement section 204 and
to ensure that there are proper safeguards in place.
I would note that the effective date of title I is January 1, 1996 or
90 days earlier if CBO receives appropriations as authorized. Thus,
title I would apply to any bill, joint resolution, amendment, motion,
or conference report considered by the House or Senate on or after
January 1, 1996.
Finally, I would like to describe and explain the provisions of
section 401, which deals with the subject of judicial review.
The version of S. 1 that passed the Senate contained an absolute bar
on all judicial review. However, the bill that passed the House
authorized judicial review of regulatory agency compliance with many
requirements in the bill.
The conferees agreed to a compromise between the Senate and the House
positions. Our goal was to provide for meaningful judicial review, so
as to reassure the regulated community that agencies will prepare
certain key statements and plans that are called for under S. 1.
However, we also wanted to assure that agency rules and enforcement
would not be stayed or invalidated by the judicial review, and that the
regulatory process would not get bogged down in excessive litigation. I
believe that section 401 achieves these goals.
Sections 401(a) (1) and (2) provide for limited judicial review of
agency compliance with section 202 and sections 203(a) (1) and (2). As
I discussed a moment ago, section 202 requires preparation of
statements to accompany significant regulatory actions, and sections
203(a) (1) and (2) require agencies to develop small agency plans
before establishing certain regulatory requirements.
Subparagraph (A) of section 401(a)(2) provides that judicial review
is available only under section 706(l) of the Administrative Procedure
Act. Section 706(l) of the APA authorizes a court to compel agency
action unlawfully withheld or unreasonably delayed. Subparagraph (A)
also states that such review will only be as provided under
subparagraph (B). Subparagraph (B) states that, if an agency fails to
prepare the written statement under section 202 or the written plan
under section 203(a) (1) and (2), a court may compel the agency to
prepare such a written statement.
Sections 401(a) (1) and (2) specify that the only remedy that a court
may provide is to compel the agency to prepare the statement. So, for
example, the court may not stay, enjoin, invalidate, or otherwise
affect a rule. Nor may the court postpone the effective date of the
rule, stay enforcement of the rule, or take any other action to
preserve status or rights pending conclusion of the review proceeding
or pending compliance by the agency with any court order to prepare a
statement.
Furthermore, in this review under sections 401(a) (1) and (2), the
court may not review the adequacy of a written statement under section
202 or of a written plan under sections 203(a) (1) and (2). This is
because paragraph (2)(B) provides that a court may compel preparation
of a written statement only if the agency actually fails to prepare the
written statement under section 202 or actually fails to prepare the
written plan under sections 203(a) (1) and (2).
Sections 401(a) (1) and (2) deal with the situation where rules that
are subject to sections 202 and 203(a) and (b) undergo judicial review
under Federal law other than section 401(a) (1) and (2).
Paragraph (3) states that, in any such judicial review, the failure
of an agency to prepare a required statement or plan shall not be used
as a basis for staying, enjoining, invalidating, or otherwise affecting
the agency rule. Subparagraph (3) further provides that, if the agency
does prepare a statement
[[Page S3883]] or plan, any inadequacy of the statement or plan shall
not be used as a basis for staying, enjoining, invalidating, or
otherwise affecting the agency rule. Subsection (3) not only forbids a
court to use the inadequacy or failure to prepare a statement or plan
as the sole basis for invalidating or otherwise affecting a rule; the
subsection also prohibits the court from using such inadequacy or
failure as any basis, even if considered together with other
deficiencies in the rulemaking, for invalidating or otherwise affecting
a rule.
Subparagraph (4) states the circumstances when the information
generated under section 202 or section 203(a) (1) and (2) may be
considered by a court in the course of reviewing the rule under law
other than sections 401(a) (1) and (2). Subparagraph (4) has two
elements. First, the information may be considered by the court only if
it is made part of the rulemaking record for judicial review. Second,
if the information is made part of the record for review, then the
information may be considered by the court as part of the entire record
for the judicial review under the other law.
The question of whether the information is made part of the record
for judicial review is not determined by any provision of S. 1; the
contents of the record is governed by the law and court procedures
under which the judicial review takes place. In judicial review of
agency rules, the agency makes the initial decision of what documents
to include in the rulemaking record for judicial review. Thus, the
agency would make the initial decision of whether to include any
information generated under sections 202 and 203(a) (1) and (2) in the
record for judicial review. If the agency makes such information part
of the record for judicial review, the court may then proceed to
consider such information as part of the record for judicial review
pursuant to the other law.
In no event may a court review whether the information generated
under sections 202 or 203(a) (1) or (2) is adequate to satisfy
requirements of S. 1. Such review is clearly prohibited by subparagraph
(3). However, in reviewing a rule under law other than sections 401(a)
(1) and (2), if information generated under section 202 or 203(a) (1)
or (2) is included in the record for review, the court may consider
whether such information is adequate or inadequate to satisfy the
requirements of such other law.
Any information that is made part of the record subject to judicial
review, including information generated under sections 202 and 203(a)
(1) and (2) that is made part of the record, may be considered by the
court, to the extent relevant under the law governing the judicial
review, as part of the entire record in determining whether the record
before it supports the rule under the arbitrary capricious or
substantial evidence or other applicable standard. Pursuant to the
appropriate Federal law, a court looks at the totality of the record in
assessing whether a particular rulemaking proceeding lacks sufficient
support in the record.
Section 401(a)(5) states that a petition under paragraph (2) to
compel the agency to prepare a written statement shall be controlled by
provisions of law that govern review of the rule under other law. This
applies to such matters as exhaustion of administrative remedies, the
time for and manner of seeking review, and venue. Consequently, the
petition under paragraph (2) may be filed only after the final rule has
been promulgated, at which time review of the rule may be available
under other law. The petition under subparagraph (2) may be filed only
in a court where a petition for review of the rule itself could also be
filed under other law. And the same requirements for exhaustion of
administrative remedies that would apply in review of the rule shall
also apply to the petition under paragraph (2). However, if the other
law does not have a statute of limitations that is less than 180 days,
then paragraph (5) limits the time for filing a petition under
paragraph (2) to 180 days.
Section 401(a)(6) states the effective date for the judicial review
provided under subsection (a). The effective date is October 1, 1995,
and subsection (a) will apply to any agency rule
for which a general notice of proposed rulemaking is promulgated on or
after such date. Consequently, in the case of rules for which a general
notice of proposed rulemaking is promulgated before October 1, 1995,
subsection (a) does not apply. For these rules that are not subject to
subsection (a), a petition under subsection (a)(2) may not be filed,
and information generated under section 202 and 203(a) may not be
considered as part of the record for judicial review pursuant to
subsection (4).
Section 401(b)(1) broadly prohibits all judicial review except as
provided in subsection (a). Thus, all of title I, those portions of
title II not expressly referenced in subsection (a), and all of title
III are completely exempt from judicial review. This section also
prohibits judicial review of any estimate, analysis, statement,
description or report prepared under S. 1. This list is intended to
cover all forms of documentation or analysis generated under S. 1, so
that no such documentation or analysis is subject to any form of
judicial review except as provided in subsection (a). For example, not
only is an agency's compliance with section 205 not subject to judicial
review; but also the regulatory alternatives and the explanations
prepared under section 205, and other records of the agency's
activities under section 205, may not be reviewed in any judicial
proceeding.
Subsection (b)(2) further states that, except as provided in
subsection (a), no provision of S. 1 shall be construed to create any
right or benefit enforceable by any person.
Finally, the provisions of S. 1 do not affect the standards of
underlying law, under which courts will review agency rules. In other
words, insofar as they provide the basis for judicial review of a rule,
neither the standards of the statute that authorizes promulgation of
the rule, nor the procedural standards for rulemaking under the
authorizing statute or the APA, nor the standards for judicial review
of the rule, nor agency or court interpretations, are affected by the
provisions of S. 1.
Likewise, to the extent that applicable law vests discretion in an
agency to determine what information and analysis to consider in
developing a rule, nothing in S. 1 changes the standards under which a
court will review and determine whether the agency properly exercised
such discretion. Thus, even where the authorizing statute is vague or
silent about what factors the agency must or may consider in
promulgating a rule, a court reviewing the rule may not consider the
requirements of section 202 or of any other provisions of S. 1 in
interpreting the requirements of the statute. This is because, except
as provided by a petition under section 401(a)(2), section 401
prohibits all judicial review of compliance or noncompliance with S. 1.
If courts were allowed to interpret S. 1 as implicitly amending or
superseding the provisions of another statute or to constrain the
agency's discretion under another statute, and if the conference report
had been written to allow a court to consider an agency's compliance or
noncompliance with these amended or superseded provisions of the other
statute, this would be the same thing as judicial review of the
agency's compliance or noncompliance with the provisions of S. 1. But
section 401 of the conference report clearly prohibits courts from
doing this.
Furthermore, even when an agency prepares any statement under section
202, nothing in section 202 authorizes or requires consideration of the
statement in development of the rule. Where the conference report
intends to require that agencies consider certain factors, the language
of the bill is drafted to say so explicitly, as in the provision of
section 205 requiring that agencies consider a reasonable number of
regulatory alternatives under certain circumstances. Furthermore, an
agency may choose to prepare a statement even if consideration is
clearly prohibited under other statute, and an agency may prepare a
statement even if the applicable statute affords discretion to the
agency to consider or not to consider the statement. Therefore, neither
the provisions of S. 1 nor the fact that an agency prepares any
statement under S. 1 affects the standards and interpretations under
which courts will review the rule and the agency's exercise of
discretion in developing the rule.
[[Page S3884]] Mr. President, I would like to close by acknowledging
some people who deserve a great deal of credit for this legislation.
This has been tough legislation to bring through, and we had a long
debate in the Chamber about it after it came out of committee. We
remember some of the difficulties of getting it out of the committee,
and I will not go into all the details of that.
I indicated earlier in my remarks, of all the people who have brought
this through, Senator Dirk Kempthorne certainly deserves credit as the
spark plug for this legislation. I have been glad and honored to join
him in it. W.H. ``Buzz'' Fawcett, who is sitting here with
him today, deserves credit for his work on this, and Gary Smith, who is
on the floor also today.
On our side of the aisle, those people who deserve a tremendous
amount of credit are Sebastion O'Kelly, who is with me here today, who
has worked on very little but this for the last couple of months, I
guess, or ever since we came back into session; Larry Novey, who is not
on the floor with us today--yes, he is back in the back. Larry worked
on this legislation also, as did our minority staff director on the
Governmental Affairs Committee, Len Weiss, who is here with us today.
Congressman Rob Portman over in the House, who was the real sponsor
of this and the prime mover of it, deserves a lot of credit, along with
his principal staff person who worked on this, John Bridgeland;
Congressman William Clinger over there, and the person on his staff,
Christine Simmons, who worked so hard on this; Congresswoman Cardiss
Collins and her staff person, Tom Goldberg, who met repeatedly with the
group; Gary Condit over there, and his staffer, Steve Jones, played a
vital role in this.
And back on our side again, Senator Jim Exon and Meg Duncan on his
staff, and on our Governmental Affairs staff again Senator Carl Levin
and Linda Gustitis, who has done such yeoman work on a number of pieces
of legislation on our Governmental Affairs Committee staff.
I know to people out there maybe who watch this on television, the
names are not associated directly with the people involved. You may or
may not have seen them in the Chamber from time to time when we were
debating the bill, sitting here beside us, keeping some of the
legislative matters straight as we were debating some different parts
of this bill. But they are people who should be known because they are
the ones who have to write things up overnight, spend two-thirds of the
night writing things up for our approval in the morning to go to
another meeting and try to work things out, work differences out and
different views on legislation. And this legislation did have a lot of
things we had to work out together. It was together that we worked
these things out. There was a lot of togetherness, legislative
togetherness that let us get to the point where we are today.
So I urge my colleagues to vote for passage of this bill. I think it
is landmark legislation, and we have so many people who have been part
of this I probably have left some people out. I regret that. But I am
glad we have come to this day, and I look forward to tomorrow when we
will have a record rollcall vote. I hope it will be unanimous.
I yield the floor. I reserve the remainder of my time.
Mr. KEMPTHORNE. Mr. President, I certainly appreciate the remarks of
the Senator from Ohio and the great role that he has played in bringing
us to this point where we can have successful passage of this
conference report.
I should like to associate myself with his remarks about the
different staff members who have all played a key role. I would now
like to yield 7 minutes to the Senator from Minnesota, who again has
been one of those Senators on this issue who every time we needed to
have assistance was there.
Mr. GRAMS. I thank the Senator from Idaho.
The PRESIDING OFFICER. The Senator from Minnesota.
Mr. GRAMS. Mr. President, I rise today in support of the unfunded
mandates conference report.
By forcing Congress to know the costs of any legislation it passes
down to our States, counties, cities, and townships, by forcing
Congress to vote--openly in the light of day--to specifically impose
those costs if it does not come up with the dollars itself, this
legislation is a good first step toward loosening the noose of costly
Federal requirements.
And it is also a good first step toward a return to States rights,
and an end to what has too often amounted to taxation without
representation by the Federal Government.
In Redwood Falls, MN, former Mayor Gary Revier echoes what I have
heard time and time again since debate began in Washington on unfunded
mandates.
He said to me recently:
How can cities like Redwood Falls meet their own needs when
our scarce dollars are continually going to meet Washington's
needs?
How do we tell our residents that we may need to reduce
services or raise local taxes because a bureaucrat 2,000
miles away thinks he knows best how to spend our dollars?
I agree with Mr. Revier. In fact, I have asked him to chair my
unfunded mandates task force, where he will play a key role in
formulating a strategy to reduce the Federal Government's reach into
Minnesota pockets.
Even with the Unfunded Mandates Relief Act in place, we must be
vigilant of the unintended costs our actions here in Congress may
represent on the local level.
Future legislation needs to be carefully scrutinized so that we avoid
new and unwelcome financial pressures on the local level.
Other regulatory relief measures we consider this year will further
enable local governments to get back to doing local business, and away
from having to do the Federal Government's bidding.
We could learn a lot from Florida Gov. Lawton Chiles, who wants to
repeal at least half of his State's nearly 29,000 regulations and
replace them with loose guidelines, guidelines that promote
accountability.
While trading archaic rules for common sense may not make sense to
the Washington bureaucrats, it makes a lot of sense back home, and it
is an approach we ought to encourage on the Federal level.
For all the good accomplished by the Unfunded Mandates Relief Act, it
leaves untouched most of the 200 previously enacted unfunded mandates
passed by this institution--and passed on to local governments--over
the last two decades.
Implementing the requirements of the 10 costliest mandates--contained
in bills like OSHA, the Clean Water and Clean Air Acts, and the
Endangered Species Act--cost cities an estimated $6.5 billion in 1993.
By the year 2000, the price tag for those mandates will rise to
nearly $54 billion.
It may be too late to change things with this bill, but it is not too
late to change things with the next.
In the House, Speaker Gingrich will begin monthly Corrections Days,
and I urge my colleagues in the Senate to follow suit.
We will pull out the most inefficient Federal laws and regulations
and bring them up for a vote.
We will begin stripping away the layers of Federal bureaucracy that,
like bad varnish over good wood, have obscured for too long the role of
the Government envisioned by our Founding Fathers.
Maybe, with the help of the Unfunded Mandates Relief Act and 2 years
of Corrections Days, we will be able to say by the end of the 104th
Congress that we have truly made a difference to the people back home
who sent us here to change Washington.
I reiterate, this change begins with passage of the Unfunded Mandates
Relief Act.
With that, I yield the remainder of my time.
The PRESIDING OFFICER. The Senator from Idaho.
Mr. KEMPTHORNE. Mr. President, I note Senator Hutchison was here a
short time ago. She had hoped to speak on this issue but unfortunately
a previous commitment had caused her to leave the floor. I wish she
could have been able to remain because during the 11 days of the debate
that we had on S. 1, there were different occasions when it was
necessary to seek someone with her background in State government to
come be an advocate and spokesperson for this bill. Whenever we called,
she
[[Page S3885]] was there. I want to acknowledge her role in this as
well.
With that, Mr. President, I know there are additional speakers who
are on their way to the floor.
I suggest the absence of a quorum.
The PRESIDING OFFICER. Does the Senator suggest the time be divided
equally on both sides, under the quorum call?
Mr. KEMPTHORNE. Mr. President, that will be fine.
The PRESIDING OFFICER. The clerk will call the roll.
The bill clerk proceeded to call the roll.
Mr. INHOFE. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Who yields time?
Mr. KEMPTHORNE. Mr. President, I yield 5 minutes to the Senator from
Oklahoma.
The PRESIDING OFFICER. The Senator from Oklahoma.
Mr. INHOFE. I thank the distinguished Senator from Idaho for
yielding.
Mr. President, I have been most interested in what I think is our
first major success in both Chambers. And certainly it is due to the
perseverance of the Senator from Idaho that we are where we are today.
I watched with interest what is happening in the House and, of course,
what is happening over here. I think it is so significant because this
symbolizes what I think is one of the products of the revolution that
took place on November 8.
I have often joked around with many Members of both bodies in
Washington. I said, ``If you want to know what a real tough job it is
to become a mayor in a major city, there is no hiding place there. If
they do not like you, they trash you and they throw it in your front
yard.''
Of all the problems--and even though there are people serving in this
body, distinguished Senators, who have had distinguished careers,
including being mayor of major cities such as the Senator from
California, Mrs. Feinstein, and many of us may disagree philosophically
on certain subjects, but if you were to ask any city official, any
mayor, any city commissioner, city council member in America what the
most serious problem is, they will not say, as you might expect, the
crime problem or the welfare problem or other problems like that. They
would say it is unfunded mandates. I had the honor of serving as mayor
for three terms in the city of Tulsa, OK, with a half-million people.
There are so many aspects of unfunded mandates that people do not
talk about because sometimes it is politically sensitive to talk about
it, such as the Davis-Bacon Act and how that affects what we do with
capital improvements in many of our large cities.
I can remember when I became mayor of the city of Tulsa, even though
I was conservative it was very uncomfortable to do this. I had to pass
a 1-cent sales tax increase for capital improvement because our city
had been neglected in its infrastructure. Unfortunately, it is a
political reality. Until you can visibly see the problems, you do not
really do anything about it. So we passed it.
We calculated afterward that, if we had not had to comply with the
Davis-Bacon Act, the taxpayers would have benefited so much more than
they did. Without the Davis-Bacon Act, we could have produced 17
percent more in capital improvements for the citizens of Tulsa. Keep in
mind this is all totally funded within the city with a 1-cent sales tax
increase--6 more miles of roads and streets within one city, Tulsa, OK;
34 more miles of water and sewer lines. And we could have hired--this
is simply the labor issue that you hear so much about--we could have
hired 500 more people during that timeframe. At that time our
unemployment was high. It was something that we needed. So it was one
of those deals where no one would have been punished by our
successfully not having to serve under the mandates of the Davis-Bacon
Act.
A lot of us in Oklahoma put the pencil to these things so that we
would know how many dollars it saved. The motor-voter law that came in
is going to cost about $1 million a year. We are still working with
that right now. That was something that came in that sounded very good
when it surfaced. A lot of the authorities were certainly well meaning.
But it was a very expensive thing for the people of Oklahoma. We went
and looked at some of the things that happened in the city. Certainly
we all know or are sensitive today to the League of Cities which is
having their annual meeting here in Washington.
In one city, Oklahoma City, the compliance with storm water
management and the Clean Water Act, in Oklahoma City alone it is
estimated to be $2.7 million. The transportation regulations, which is
the metric conversion, some of their anticipated fees are in excess of
$2 million over the next 5 years. Land use regulations--that is the
recycling and landfill requirements that have come--$2.5 million; the
Clean Water Act, Safe Drinking Water Act is somewhere in the millions.
We cannot even put the pencil to that.
In my city of Tulsa, OK, the other large city in Oklahoma, the Clean
Water Act compliance was $10 million. The Safe Drinking Water Act was
$16 million. The solid waste regulations, $700,000. And the lead-based
paint, because it is a unique industry which we have there, it will
cost in excess of $1 million.
But when you look at the smaller communities like Broken Arrow, OK,
the Clean Water Act, the storm water regulations were $100,000; the
safe drinking water regulations were $40,000. This is a small community
that has a very difficult time making ends meet. Yet, they look at
these and they wonder why is it that we in Washington somehow have this
infinite wisdom that we know what is better for them and we are willing
to mandate things for them to do. Yet, we are not going to fund it.
I think if we face the reality and the truth, Mr. President, I
suggest that it is because people in Washington, after being here for a
while, cannot resist the insatiable appetite to spend money we do not
have. One tricky way of doing that is to take credit for something
politically at home in terms of the environment or something that we
are needing to do that generally the people want and turn around and
cause the people at home to pay for it.
I think we should look at this in another way, also. That is, what is
going to happen with the frustration around the country if we do not do
this? I was heartened the other day to see what is happening in Catron
County, NM. In the frustration of dealing with the U.S. Forest Service,
they enacted the U.S. Constitution as a county ordinance and put the
Federal officials on notice to show up at the county supervisors
meeting to get permission to impose future mandates.
I think we are looking at something here that either we do, or it is
going to be done for us. I have never been prouder of an organization
that is able to come in on both the House and Senate side and recognize
that this is not a Republican program, this is not a Democratic
program, this is not a conservative or liberal program; this is
something that everyone is for if they are really for getting the
maximum out of the tax dollars that are paid.
So, again, let me throw all the accolades I can on the distinguished
Senator from Idaho, who has been so effective in getting this through.
Thank you on behalf of all America.
I yield the floor.
Mr. KEMPTHORNE. Mr. President, I want to thank the Senator from
Oklahoma. Not only is he a tremendous addition to the U.S. Senate, but
his experience as a former mayor--I really think there are few training
grounds that can better equip you for the issues we deal with than to
be a mayor who deals with the pragmatic issues of government. He is a
welcome addition here.
I yield 7 minutes to the chairman of the Budget Committee, the
Senator from New Mexico, Senator Domenici.
Mr. DOMENICI. Mr. President, I know that the occupant of the chair
would like the Senate to finish its business at the earliest possible
moment. While he has not told me that, it seems to me that is the
attitude he exhibited when I told him I was going to speak. I promise
you that it will be reasonably interesting and very, very short.
First, let me say that this bill could not be passed by the U.S.
Senate, this conference, at a better time, because in the confines of
this city over the last 72 hours, councilmen and mayors and
[[Page S3886]] councilwomen from all across America were here as part
of the National League of Cities' conference. I used to belong to that
organization many years ago when I was an ex officio mayor of my home
city. And our distinguished Senator, to whom we extend accolades here
today, Senator Kempthorne, also served as mayor, but much later than I.
I knew about the government way back then, and he knew about it even
more vividly.
But I might say to the Senate that there is no question that the
exhilaration in the language and words of thanks and profuse gratitude
from those who came from far and wide across America as mayors and
council people, saying this was the first step in some kind of
revitalization of federalism in a prudent and realistic manner, seem to
me to be right on the mark. We were on the mark when we passed it.
So this bill begins a redefinition of the relationship between the
Federal Government, States, and local governments and even our Indian
tribes. In addition, due to the provisions of title II of this bill, it
also begins a little bit to move the relationship of the Federal
Government's regulatory processes, vis-a-vis the private sector, in a
direction of somewhat more accountability for the bureaucracy's actions
that bind our American people and business people. We are not there yet
on private sector mandates. This is the very first step.
In the past, we have piled mandates on the States and the American
people with very little idea of their economic impact. It seems to me
these mandates were imposed with too much confidence that we could
leave very open-ended, generalized kinds of authority to the
regulators, expecting them to establish commonsense regulations.
Instead, we have found the exact opposite. In many instances, you have
to stretch your mind in terms of trying to figure out how they could
arrive at certain regulations from the laws we have passed.
So, at the very best, we did not fully understand the cost of our
laws, the cost and implications of our regulations on State and local
governments and tribal governments, or the private sector. At the
worst, we had no idea how much these laws and regulations cost the
American people. One estimate places the aggregate cost of existing
mandates from hundreds of laws and thousands of regulations at $580
billion annually.
Somebody pays that and somewhere it finds itself in either the cost
of living of our people, or the cost of buying goods and services from
our companies, because this huge cost does not just disappear into the
ether. It is there every day, in our front rooms, kitchens, on our
grocery shelves, the furniture and gasoline we buy, and all of the
other things that we have seen fit to regulate without any real
evidence of the risk and the cost and how it affects people.
In my own State--I repeat to the Senate--local officials, whether it
be the secretary of state or labor implementing motor vehicle
registrations, or the mayor of the little town of Las Vegas, NM,
attempting to meet the needs of his small city, I have heard their
appeals and they clearly are tired of the Federal Government telling
them precisely how to do things by regulation when they believe they
could do just as well in different ways at less cost to their people.
Small business in New Mexico first points to Federal regulations when
asked what is slowing down employment and economic growth and causing
them to expand less than they think they could. Their answer, I repeat,
is most frequently: Regulations that burden us unduly, that cost more
than they are worth. They are even raising this today more frequently
than they are talking about higher taxes and how taxes burden them.
That is not to say that taxes are not a burden to small business and
that they would not like to see some relief. But I am giving you my
best version of what I have heard for the last 14 months, because I did
call small business together in New Mexico. We had an advocacy group
and we hold it together, and we have had about 800 small businesses go
to five cities and just lay before me what is wrong with the Federal
Government. It comes up over and over again that they are being
regulated beyond belief, at costs that are significant, with
achievements and goals that are irrelevant or very misleading in terms
of their worth.
So I am hopeful that this bill will change the culture of the Federal
Government by modifying the process by which we impose mandates on our
people. This bill requires Congress and Federal regulatory agencies to
consider the impact of mandates before they are legislated and
implemented.
I congratulate Senator Kempthorne on this bill. I congratulate his
staff and my staff, some of them from the Budget Committee. He is just
a freshman Senator, but actually we have all found that he is a
powerful one and a good one. He introduced the bill, and our leader,
Senator Dole, said, ``Manage it, since you feel so strongly about it.''
I remember him asking me, ``Do you think I can do it? What is
managing a bill all about?''
And I said, ``Nobody can tell you until you have done it.''
I asked him the other day, and he had a mixed reaction to it all. He
is not so leery about managing another one, but he was not totally
sanguine about what he had to go through either.
We do have to go through some contortions here on the floor to
accommodate fellow Senators. He, obviously, had to do that. And for
some who wanted to delay this process, he had to do that.
But over the past 2 years I helped where I could and I believe we
strengthened the bill in many respects. First, through Senator Exon's
and my efforts, the point of order in this bill has been broadened to
apply to all legislation and the bill's new legislative mandate control
procedures have been folded into the Budget Act, where we have
established precedents to show us how a point of order will work and
how it will not work.
Second, Senators Nickles, Dorgan and myself have worked to make sure
that the new procedures in this bill apply to the private sector.
This bill may be just a start in that direction, but let me suggest
for those who are overburdened in the private sector, this bill will
send a signal that we have not forgotten about them as we talk about
mandates. Because many small businesses in America, because of the type
of regulations being imposed and the attitude of those who impose it,
believe the Federal Government is their adversary, their enemy, not
their friend, not working in partnership and cooperation to see that
regulations and the mandates of our laws get carried out. This bill is
going to make one first step. Agencies are going to have to assess the
impact on small business, and it holds agencies accountable for their
actions. There is one judicial review process that will be available to
them.
I am very hopeful that, as we move through regulatory reform, we will
find some more precise and better ways to address the huge, huge almost
malaise that is out there from the regulations and that we will start
to make sense of it. And if, in a couple of years, the small business
community is saying, ``Our Government cares about us, they work with
us, the regulators work with us instead of starting as enemies and
wanting to penalize us, to fine us,'' we will have made a very giant
step in the right direction.
I thank Senator Kempthorne for yielding me time and I yield the
floor.
Mr. KEMPTHORNE addressed the Chair.
The PRESIDING OFFICER. The Senator from Idaho.
Mr. KEMPTHORNE. Mr. President, I wish to thank Senator Domenici for
his comments. Again, we have a former mayor who has just spoken, and
who, from experience, knows what these unfunded mandates are all about,
but more importantly helped do something about it. During what was the
Christmas recess, when, traditionally, there is some time off, we did
not take the time off. We worked diligently so that we could be ready
with S. 1, so that it could be ready the first day.
So I appreciate Senator Domenici's help on that. And to acknowledge
his staff, Bill Hoagland, Austin Smythe, and Kay Davies, who worked
diligently with us through this process.
Mr. President, I also think it is worth noting--and this is
important--
[[Page S3887]] that of the conferees that were appointed--5 in the
Senate, 8 in the House; a total of 13--we stated going into this,
Senator Glenn has affirmed this point repeatedly, that this was a
bipartisan effort.
I think it is significant that three Democrat Members of the House
were appointed to the conference and not all three had voted for this,
which, at that time, was H.R. 5 in the Senate. Not all voted for it
but, significantly, all Members, all 13 conferees, signed this
conference report. Cardiss Collins, Edolphus Towns, and Joe Moakley, we
want to thank them for their efforts throughout this process. Again,
you have a conference report now that has been unanimously signed by
all conferees.
Mr. ROTH. Mr. President, as Chairman of the Governmental Affairs
Committee, I am pleased to join with the Senator from Idaho in bringing
to the floor this conference agreement on the unfunded mandates
legislation. In chairing the conference on S. 1, Senator Kempthorne did
an excellent job of preserving the strong bipartisan support for this
important reform that was the hallmark of its passage in both Houses.
This bill, as it now appears before us, is a careful balance of the
demands for strong, effective reform, with the necessity for reasonable
procedures and practical requirements. For example, we have provided
for judicial review of agency compliance with requirements for certain
types of analysis of regulatory impacts but without allowing such
review to become a device that grinds the regulatory process to a halt.
We require agencies to seek the least costly or least burdensome option
when developing regulations but we only require that they do so for a
reasonable number of alternatives.
We have also struck fair compromises where the two versions of the
legislation imposed differing requirements. For example, we now require
a Congressional Budget Office analysis of any mandate on the private
sector that exceeds $100, million per year in costs while the original
Senate bill had set the threshold at $200, million and the House
threshold had been $50, million. We have also tailored the point of
order provisions to the unique procedural needs of each of the two
Houses.
And while the legislation aims primarily at future Federal mandates
in its point of order and regulatory procedures provisions, it also
acknowledges that existing mandates may need to be rethought. It does
this by charging the Advisory Commission on Intergovernmental Relations
with studying and reporting to us on effects of the current burdens
imposed by such mandates. It asks ACIR to recommend how best to end
mandates that are obsolete or duplicative. It also asks for
recommendations on how we might grant State and local governments more
flexibility in complying with those mandates that ought to be retained.
In doing all of this, the conferees have developed a final version of
this much-needed reform that I can strongly commend to my colleagues.
This is due in large measure, as I have already mentioned, to the
diligent work of Senator Kempthorne, who has long championed this
reform. He and his staff are to be commended for bringing us this far.
I also want to acknowledge the active role of Senator Glenn in
shaping this final product. Senator Glenn and his staff have worked
very hard over the past year and a half, to ensure that this
legislation was able to have solid bipartisan support.
I am pleased to have worked with my two colleagues, and with the
other conferees, to get us to this point. I know that my own staff has
spent many long hours over the past several months to help in this
effort, working closely with the staffs of the other conferees.
The bill now before us represents a landmark reform in the
relationship between the Federal Government, and State and local
governments. I urge all Senators to give it their strong support.
Mr. KEMPTHORNE. Mr. President, I thank Senator Roth again, as I
mentioned earlier, for his leadership and for the assistance of his
staff, Frank Polk and John Mercer.
treatment of disability laws under the unfunded mandates reform act of
1995
Mr. HARKIN. Mr. President, I would like to enter into a colloquy with
Senators Exon and Glenn, floor managers of the Unfunded Mandates Reform
Act of 1995, regarding the impact of this legislation on the Americans
With Disabilities Act [ADA], title V of the Rehabilitation Act of 1973,
and the Individuals With Disabilities Education Act [IDEA].
Mr. EXON. I would be pleased to enter into a colloquy with my
colleague, Mr. Harkin, who served as the chairman of the Subcommittee
on Disability Policy of the Committee on Labor and Human Resources from
1987-95 and is currently ranking member of the subcommittee.
Mr. GLENN. I too would be pleased to enter into a colloquy with Mr.
Harkin, who was also the chief sponsor of the ADA and the most recent
bills reauthorizing the Rehabilitation Act of 1973 and the IDEA.
Mr. HARKIN. The ADA and sections 503 and 504 of the Rehabilitation
Act of 1973 are civil rights statutes protecting individuals from
discrimination on the basis of disability. It is my understanding that
these statutes are explicitly excluded from coverage under the Unfunded
Mandates Reform Act of 1995. Is my understanding correct?
Mr. GLENN. The Senator is correct. The ADA and sections 503 and 504
of the Rehabilitation Act of 1973 are explicitly excluded from coverage
under the Unfunded Mandates Reform Act of 1995. Specifically, the bill
provides that the provisions of this Act shall not apply to any
provision in a bill or joint resolution before Congress and any
provision in any proposed or final Federal regulation that establishes
or enforces any statutory rights that prohibit discrimination on the
basis of * * * handicapped or disability status.
Mr. HARKIN. I thank the Senator. It is also my understanding that the
Unfunded Mandates Reform Act of 1995 includes a definition of the term
Federal intergovernmental mandate and this definition explicitly
excludes discretionary grant programs--except certain entitlement
programs--that is, any provision in a bill or joint resolution that
includes a condition of Federal assistance or a duty arising from
participation in a voluntary Federal program.
IDEA is a voluntary discretionary Federal program. Therefore, it is
my understanding that IDEA is not subject to the provisions of the
Unfunded Mandates Reform Act of 1995 because it is not considered a
Federal intergovernmental mandate. Is my understanding correct?
Mr. EXON. The Senator is correct. Because IDEA is a voluntary
discretionary Federal program, it is not considered a Federal
intergovernmental mandate. Therefore, none of the provisions applicable
to Federal intergovernmental mandates included in the legislation apply
to IDEA.
Mr. HARKIN. As the Senator knows, part B of IDEA--also known as
Public Law 94-142--was enacted in 1975. Both the House and Senate
reports that accompany the original legislation clearly attribute the
impetus for the act to two Federal court decisions rendered in 1971 and
1972. As the Senate report states, passage of the act followed a series
of landmark court cases establishing in law the right to education of
all handicapped children. The U.S. Supreme Court in Smith v. Robinson,
468 U.S. 992, recognized that part B of IDEA is a comprehensive scheme
set up by Congress to aid the States in complying with their
constitutional obligations to provide public education for handicapped
children. The Court cited another portion of the Senate report, which
stated, ``It is the intent of the Committee to establish and protect
the right to education for all handicapped children and to provide
assistance to the states in carrying out their responsibilities under
State law and the Constitution of the United States to provide equal
protection under the law.'' The Supreme Court then explained that ``The
[IDEA] was an attempt to relieve the fiscal burden placed on States and
localities by their responsibility to provide education of all
handicapped children.''
It is my understanding that the provisions of the Unfunded Mandates
Reform Act of 1995 do not apply to any provision in a bill or joint
resolution before Congress that enforces constitutional rights of
individuals. In light of the statements of congressional intent and the
conclusions reached by the U.S. Supreme Court, would you agree
[[Page S3888]] with me that IDEA enforces constitutional rights of
individuals and as such is excluded from coverage under the Unfunded
Mandates Reform Act of 1995?
Mr. EXON. I agree with the Senator's conclusion in light of the
statements of congressional intent he cited to and the conclusions
reached by the U.S. Supreme Court.
Mr. HARKIN. It is also my understanding that the provisions of the
Unfunded Mandates Reform Act of 1995 do not apply to IDEA because, like
the ADA and section 504 of the Rehabilitation Act of 1973, IDEA is a
civil rights statute that establishes or enforces statutory rights that
prohibit discrimination on the basis of handicapped or disability
status.
Mr. EXON. I agree with that conclusion.
Mr. HARKIN. I thank the Senator for entering into this colloquy with
me. I ask unanimous consent that a memorandum prepared by the American
Law Division of the Congressional Research Service regarding the
applicability of the Unfunded Mandates Reform Act of 1995 to the ADA,
IDEA, and the Rehabilitation Act of 1973 be printed in the Record.
Mr. GLENN. I thank the Senator for raising these important issues.
Mr. EXON. I also wish to thank him for raising these issues.
There being no objection, the memorandum was ordered to be printed in
the Record, as follows:
Congressional Research Service,
Washington, DC, January 23, 1995.
To: Senator Harkin, Attention: Bob Silverstein.
From: American Law Division.
Subject: Unfunded Federal Mandates Bill and the Americans
with Disabilities Act and the Individuals with Disabilities
Education Act.
This memorandum is furnished in response to your request
for an analysis of the language of S. 1 and H.R. 5, 104th
Cong., 1st Sess., to determine if the Americans with
Disabilities Act (ADA), 42 U.S.C. Sec. Sec. 12101 et seq.,
and the Individuals with Disabilities Education Act (IDEA),
20 U.S.C. Sec. Sec. 1400 et seq., would be covered under
these bills. It should be emphasized that these bills are
currently undergoing extensive debate and amendment. This
memorandum is based on the language contained in the Senate
bill as reported out of the Senate Governmental Affairs
Committee on January 11, 1995 and the Senate Budget Committee
on January 12, 1995, and on the language contained in the
House bill as reported out of the House Committee on Rules on
January 13, 1995.
These bills are both referred to as the ``Unfunded Mandate
Reform Act of 1995.'' Basically, both bills, with some
variance in details, would establish new congressional
procedures for identifying and controlling certain existing
as well as new unfunded federal mandates. The bills set forth
new congressional procedures that would prohibit the House
and Senate from considering legislation that creates new
mandates or changes existing mandates from direct costs over
a statutory threshold unless it also includes a source of
financing or a guarantee that any such mandates will be
repealed if the financing is not provided. Other provisions
in the bills relate to the establishment of a Commission on
Unfunded Federal Mandates that is required to review existing
federal mandates to state, local, and tribal governments and
to the private sector, and to make recommendations regarding
possible changes in these mandates. There are also provisions
requiring federal agencies to assess the effect of federal
regulations on state, local and tribal governments and on the
private sector and to make public such assessments for
federal mandates costing more than $100 million to implement.
Both bills contain a section entitled ``Limitation on
Application.''\1\ Section 4 of S. 1 provides that ``this part
shall not apply to any provision in a Federal statute or a
proposed or final Federal regulation that--(1) enforces
constitutional rights of individuals; (2) establishes or
enforces any statutory rights that prohibit discrimination on
the basis of race, religion, gender, national origin,
handicapped or disability status, (3) requires compliance
with accounting and auditing procedures with respect to
grants or other money or property provided by the Federal
Government; (4) provides for emergency assistance or relief
at the request of any State, local government, or tribal
government or any official of such a government; (5) is
necessary for the national security or the ratification or
implementation of international treaty obligations; or (6)
the President designates as emergency legislative and that
the Congress so designates in statute.'' It would appear that
both the ADA and IDEA would be exempted from the requirements
of the Unfunded Mandate Act based upon these exceptions, and
IDEA would also come under the exception to the definition of
Federal Intergovernmental Mandate for conditions of financial
assistance.
Footnotes at the end of the memorandum.
---------------------------------------------------------------------------
The ADA would apparently be covered by the second
exception, and possibly the first. The ADA provides, in part,
that its purpose is ``to provide a clear and comprehensive
national mandate for the elimination of discrimination
against individuals with disabilities.'' \2\ The legislative
history of the statute is replete with discussions of
discriminatory actions and comparisons with civil rights
protections given to individuals on the basis of race.\3\ An
examination of statutes that are commonly referred to as
civil rights statutes, for example, title VI of the Civil
Rights Act of 1964, 42 U.S.C. Sec. 2000d, indicates that the
broadest common denominator is that these statutes prohibit
discrimination against a particular class or particular
classes of individuals. Using this criteria, it would appear
that the ADA would be considered to be a civil rights statute
as the term is used in the second exception to the unfunded
mandates legislation. It is also possible that the first
exception, regarding statutes that enforce constitutional
rights, might also be applicable to the ADA. The ADA states,
in part, that its purpose is ``to invoke the sweep of
congressional authority, including the power to enforce the
Fourteenth Amendment and to regulate commerce, in order to
address the major areas of discrimination faced day-to-day by
people with disabilities.''\4\ It could be argued that this
language, coupled with findings concerning the constitutional
rights of individuals with disabilities such as were made in
City of Cleburne v. Cleburne Living Center, 473 U.S. 432
(1985), would suffice to bring the ADA under the first
exception in the unfunded mandates legislation.
IDEA would apparently be covered by the exception to the
definition of federal intergovernmental mandate contained in
Section 3 of S. 1 and Section 301 of H.R. 5 as well as by the
first two exceptions regarding the enforcement of
constitutional rights and the exception for civil rights
statutes contained in the ``Limitation on Application''
provisions discussed above. The term ``Federal
Intergovernmental Mandate'' is defined in both the Senate and
House bills as meaning ``any provision in legislation,
statute, or regulation that--(i) would impose an enforceable
duty upon States, local governments, or tribal governments,
except--(I) a condition of Federal assistance; or (II) a duty
arising from participation in a voluntary Federal program. .
.''\5\ IDEA provides funds to the states so that they may
provide a free appropriate public education to all children
with disabilities. As a condition for the receipt of these
funds, the act contains detailed requirements for the
provision of an education. Clearly, IDEA is a grants statute
which imposes certain conditions upon the receipt of federal
funds. As such it would be covered by the exception quoted
above.
IDEA may also be exempted from coverage by virtue of the
two exceptions regarding constitutional rights and civil
rights statutes.\6\ IDEA was originally enacted in 1975 in
response to two judicial decisions\7\ which found certain
constitutional requirements for an education for children
with disabilities. In addition, the Supreme Court in Smith v.
Robinson, 468 U.S. 992 (1984), stated that ``The EHA (now
called IDEA) is a comprehensive scheme set up by Congress to
aid the States in complying with their constitutional
obligations to provide public education for handicapped
children.'' At 1009. It could be argued that IDEA is, then, a
statute enacted to help enforce constitutional rights.
Similarly, IDEA specifically states that part of its purpose
is to assure that the rights of children with disabilities
and their parents or guardians are protected.\8\ These rights
are further defined in the statute. An examination of the
legislative history of the act indicates that it was in
response to the exclusion of children with disabilities from
a public school education.\9\ Since exclusion would appear to
fall within the parameters of the term discrimination, it
would appear that IDEA could also be classified as a civil
rights statute.
We hope this information is useful to you. If we can be of
further assistance, please call us.
Kathy Swendiman,
Nancy Lee Jones,
Legislative Attorneys.
footnotes
\1\Section 4 of H.R. 5 sets forth a ``Limitation on
Application'' section which is identical to that contained in
S. 1 except for the addition, in committee, of a new (7)
which reads ``pertains to Social Security''.
\2\42 U.S.C. Sec. 12101(b)(1).
\3\See generally, S. Rep. No. 116, 101st Cong., 1st Sess.
(1989).
\4\42 U.S.C. Sec. 12101(b)(4).
\5\Section 3 of S. 1 and Section 301 of H.R. 5.
\6\Section 4 (1) and (2) of S. 1 and H.R. 5 read as follows:
``This Act shall not apply to any provision in a Federal
statute or a proposed or final Federal regulation, that--(1)
enforces constitutional rights of individuals; (2)
establishes or enforces any statutory rights that prohibit
discrimination on the basis of race, religion, gender,
national origin, or handicapped or disability status. . .''
\7\PARC v. State of Pennsylvania, 343 F. Supp. 279 (E.D. Pa.
1972), and Mills v. Board of Education of the District of
Columbia, 348 F. Supp. 866 (D.D.C. 1972).
\8\20 U.S.C. Sec. 1400(c).
\9\H. Rep. No. 332, 94th Cong., 1st Sess. 11 (1975); S. Rep.
No. 168, 94th Cong., 1st Sess., reprinted in 1975 U.S. Code
Cong. & Ad. News 1425, 1432.
Mr. KEMPTHORNE. Mr. President, I know that the majority leader wishes
to make comments on this issue. Until his arrival, I suggest the
absence of a quorum.
[[Page S3889]] The PRESIDING OFFICER. Equally divided?
Mr. KEMPTHORNE. Equally divided.
The PRESIDING OFFICER. Without objection, it is so ordered.
The clerk will call the roll.
The assistant legislative clerk proceeded to call the roll.
Mr. DORGAN. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. DORGAN. Mr. President, I ask unanimous consent to speak as in
morning business for 5 minutes.
The PRESIDING OFFICER. Without objection, it is so ordered.
____________________