[Congressional Record Volume 141, Number 48 (Wednesday, March 15, 1995)]
[Senate]
[Pages S3918-S3922]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
UNFUNDED MANDATE REFORM ACT OF 1995--CONFERENCE REPORT
The PRESIDING OFFICER. Under the previous order, the Senate will now
vote on the conference report accompanying S. 1, which the clerk will
report.
The bill 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 Senate resumed consideration of the conference report.
section 105
Mr. KOHL. Mr. President, I invite the chairman of the Budget
Committee to engage in a colloquy with me on section 105 of the
conference report on S. 1, the Unfunded Mandates Reform Act of 1995.
During consideration of S. 1 before the full Senate, I offered an
amendment which makes clear that nothing in this legislation denies
Federal funding to States, local, or tribal governments because they
are already complying with all or part of a Federal mandate. That
amendment is now section 105 of the bill.
The conferees modified my language by stating that my amendment made
reference to any mandates that are funded pursuant to section 425(a)(2)
of the Congressional Budget and Impoundment Control Act of 1974, as
added by section 101 of this act.
However, the report language accompanying S. 1 refers to section
425(b)(2).
I ask the distinguished Senator from New Mexico, is this reference in
the conference report incorrect?
[[Page S3919]] Mr. DOMENICI. Yes; the Senator is correct. The report
language inadvertently refers to section 425(b)(2) when it should have
been referring to section 425(a)(2). I appreciate the Senator from
Wisconsin bringing this to the Senate's attention and it is my hope
that this colloquy sets the record straight on the intent of the
conferees on this language.
Mr. LAUTENBERG. Mr. President, when the Senate considered the
unfunded mandates bill earlier this year, I voted against it. I am
prepared to vote against the final version of that bill now. My
concerns about S. 1 were not addressed in conference and, in fact, one
could argue that bill comes back to us in worse shape then it left.
The conference made two substantive changes in the bill. First,
judicial review has been added to an already unwieldy process and,
second, the threshold above which CBO must provide cost estimates for
private sector unfunded mandates has been reduced from $100 to $50
million.
These changes only reinforce my criticism of S. 1 as passed by the
Senate in January: The procedural hurdles created by this legislation
will only add to the arsenal of dilatory tactics which already have the
ability to nuke necessary legislation and destroy public faith in the
Congress.
Last year, I supported legislation that would have addressed the
problem of unfunded mandates in an appropriate and effective manner.
That bill, S. 993, would have required Congress to think carefully and
critically about the mandates we were about to impose upon State and
local governments. We would have to acknowledge the magnitude of the
burden before we passed legislation. Congress could no longer hide
behind ignorance. I believe this bipartisan effort would have remedied
the problem of the Federal Government imposing mandates without
thorough consideration of the financial burdens already faced by other
levels of government.
The pending legislation, however, goes well beyond that. Not only is
S. 1 procedurally flawed, it also enshrines the misguided principle and
the unjustified presumption that the Federal Government should not
impose requirements on the States unless it pays them to carry out the
mandate. Supporters of the bill will respond that a simple majority can
waive the requirements of this bill; however, the politics of such a
waiver make this an unlikely occurrence. Clearly, the presumption is
that unfunded mandates are inherently bad. I don't agree with that
premise.
Many in Washington seem to have forgotten that State and local
governments benefit from a clean environment and a healthy work force.
I believe it is the Federal Government's responsibility to act when
State and local government don't want to spend the money to prevent
pollution or to immunize children. We should be there to stop gun-
running across State lines or the spread of HIV-contaminated blood. We
have a role in fighting the flood of illegal immigrants across our
borders or the flow of people across State lines as a result of benefit
shopping.
I am proud to represent a State which has some of the toughest
environmental laws in the country. New Jersey cares for its disabled.
We have tough gun control laws and occupational safety regulations. But
these strengths could
become a disadvantage to us if Federal standards are weakened or
eliminated. I'll provide an example which was only too true for my
State just a few years ago.
In the late 1980's, hundreds of millions of dollars were lost to New
Jersey's economy because of another State's negligence. Raw sewage and
medical waste originating from a neighboring State washed up on our
beaches. This well-publicized problem not only tarnished by State's
reputation--tourism is our largest employer--it cost us millions to
clean it up. Federal Government intervention was necessary. An unfunded
mandate was imposed upon the polluting State, but it was a necessary
mandate and I believe it was proper that it was largely unfunded.
Today we are institutionalizing a dangerous precedent: unless the
Federal Government pays, States do not have to comply with Federal
standards. Many States will have no incentive to try to prevent
transborder pollution. Why should a State worry about its neighbors
when it could spend that money on its own constituents. Would enough
U.S. Senators look with sympathy on those States who are victims of
another's pollution so that they would waive the requirements created
under this legislation? I hope so, but I have enough doubts that I must
vote against this conference report.
Why has the Federal Government set standards to prevent States from
cutting off food stamps to children or eliminating aid to legal
immigrants? Because we know that some States, but for the Federal
standards, would do exactly that. We created these standards because we
did not want the kind of country where kids in one State would be
denied nutritional assistance while the children of another
jurisdiction received the benefits of such aid. We did not want a
society that would cause some citizens to be disadvantaged merely
because they had the misfortune of being born or raised in a State
which did not place the same priority on pollution prevention or on
caring for poor children.
Mr. President, we do need to deal with the problem created when one
level of government shifts the cost of programs to another level of
government. But we have to do so in a way which is consistent with both
the Federal structure of our society and the compassion which powers us
as a people. I do not believe this bill is consistent with those
characteristics of our country. And I fear that it is simply a
precursor of efforts to develop no-strings block grants which could, in
the name of flexibility, destroy the ability of all Americans--wherever
they live--to count on their Government to provide certain levels of
services and meet certain standards of conduct.
For me, then, this is just the first step in what I suspect will be a
long but ultimately triumphant fight to preserve the Federal nature of
our system and the national character of the American experience.
Ms. MOSELEY-BRAUN. Mr. President, when I came to the Senate 2 years
ago, I was surprised to discover that there was almost no discussion
about the impact of mandates imposed by the Federal Government on State
and local governments. Yet, today we are voting to implement
legislation that shows that Congress promises to curb the practice of
imposing Federal mandates on State and local governments without
advance, complete disclosure of the impact of those mandates. As a
strong supporter of this legislation, I am happy that we were able to
come together to pass this long needed legislation.
S. 1 has achieved an important balance--a balance between the
benefits of mandates and their costs. We have also achieved an
important balance between the Federal, State, and local governments'
roles in the writing of Federal regulations to implement legislation.
Creating a mechanism that will help ensure that the voice of State and
local governments is heard in Washington before legislation is enacted
is both sound policy, and something that has long been needed.
S. 1 will make Federal officials more accountable. The Federal
Government has foisted too many of the costs of Federal mandates on
State and local governments for too long. Asking the Federal Government
to make its decisions with good information--with the best information
we can get on the State and local governments that will have to live by
those decisions--should not be
controversial. Rather, it is the way decisions should always have been
made, and the way decisions should always be made in the future.
S. 1 requires the congressional committees to report on the costs and
benefits anticipated from any Federal mandates contained in the bills
they report to the Senate for action, including the effects of the
mandate on health and safety, and the protection of the environment.
S. 1 has also achieved a better balance between the Federal, State,
and local governments' roles in the writing of Federal regulations to
implement legislation. Now State and local governments are partners to
the Federal Government in writing these implementing regulations.
Mandates impact big cities and small communities differently, yet
rarely are regulations
[[Page S3920]] written to be sensitive to those differences. S. 1
requires that special outreach efforts be made to ensure that the
voices of all State and local governments are heard.
S. 1 is an important step in the right direction. It creates
equilibrium between the Federal Government and State and local
governments. Now agencies will be required to estimate the costs of new
rules to governments and industries and also analyze the effect of new
rules on the U.S. economy, employment, and international
competitiveness.
To further increase the Federal Government's accountability, State
and local governments will now be allowed to challenge whether or not
Federal agencies have completed required
cost-benefit analysis. As State and local governments have to live by
those decisions, it is right that Federal officials are held
accountable for their analysis. However, the purpose of the bill was
not to have courts second guess the Congressional Budget Office's
attempts at analysis, which are often done quickly to satisfy numerous
requests, but to redress failures of an agency to prepare written
statements of mandate cost estimates.
S. 1, however is not a repudiation of the whole idea of mandates. The
mandates that the Federal Government used to make real progress in
civil rights and our treatment of the disabled, for example, were
essential to our progress as a nation, and as a people. I applaud the
fact that S. 1 recognizes how essential those mandates were and are,
and that under the terms of the bill, future civil rights legislation
which builds on this tradition will be exempt from S. 1.
S. 1 is necessary not because mandates are wrong in principle. The
real reason it passed is because of the budgetary shell game that was
played in the 1980's. The 1980's were a time when many domestic
programs were slashed, with mandates pushing the responsibilities onto
hard-pressed State and local governments. I was in the Illinois House
when President Reagan introduced the New Federalism. It was supposed to
redefine the relationship among Federal, State, and local governments.
What it really did was to make large cuts in Federal taxes, and push
off the responsibilities of providing necessary services to State and
local governments--without sending the money. The net result of that
exercise in
fiscal subterfuge was an explosion of Federal debt from only about $1
trillion in 1980 to closing in on $5 trillion now.
S. 1 is designed to ensure that the kind of budget fraud we saw in
the 1980's won't be repeated in the remainder of the 1990's, or in the
next century. S. 1 cannot undo the mistakes made in the 1980's. What it
can do, and what we must do, is help ensure that we don't repeat those
mistakes. Now Congress will make informed decisions that give the
interests of State and local governments the attention and
consideration that they deserve.
S. 1 had strong bipartisan support when it passed the Senate on
January 27, 1995, with a vote of 86-10. It also had strong support in
the last Congress, when the Democrats controlled both the House and the
Senate. S. 1 has strong support from Democratic mayors such as Mayor
Richard Daley of Chicago, and from other Democratic and Republican
mayors across the country. Governor Edgar of Illinois wrote me
supporting S. 1, and numerous county boards in Illinois also wrote in
support of this legislation. It is clear that unfunded mandates have
consumed an increasing share of State and local budgets, and that it is
time for a change.
We are all in this together, Mr. President. The Federal Government,
State governments, and local governments, are all trying to meet their
responsibilities to the American people. S. 1 will promote cooperation
between the various levels of government, and make it easier to address
the problems that the American people elected us all to solve.
I want to conclude my remarks by congratulating my colleague from
Idaho, Senator Kempthorne, and my colleague from Ohio, Senator Glenn,
for their leadership in crafting this legislation. I am pleased that we
have the opportunity today to enact this important and meaningful
reform.
Mr. DORGAN. Mr. President, I rise to discuss the conference report on
S. 1, the Unfunded Mandate Reform Act of 1995. It is great pleasure to
speak on the floor about a conference report on this bill, because it
means we have come a long way.
I remember when Senator Domenici and I introduced our own bill on
unfunded mandates in the fall of 1993. I have been working to rein in
Federal mandates ever since.
I want to start by thanking the ranking member of the Governmental
Affairs Committee, Senator Glenn. Senator Glenn had been a leader in
mandate reform long before this issue was popular. Under his
leadership, the committee held three hearings on this bill before our
markup last year. One of those was a field hearing that I chaired in
Minot, ND. And of course, we had our joint hearing with the Budget
Committee in January.
I would also like to salute Senator Kempthorne for his hard work on
this bill. I knew it was his top priority when we both joined the
Senate 2 years ago. And his efforts have today borne fruit with the
adoption of this conference report on S. 1.
curbing unfunded mandates
Mr. President, S. 1 has a simple premise--that the Federal Government
should not impose financial mandates on State and local governments
without adequate consideration of those mandates, and that we should
try our best to provide funding for those mandates.
Much of this bill matches closely S. 1592, the Fiscal Accountability
and Intergovernmental Reform Act, or FAIR Act, which Senator Domenici
and I introduced in the last Congress. S. 1 would require that the
Congressional Budget Office review legislation for the costs that
mandates would impose on State, local, and tribal Governments. If a
bill is not analyzed by CBO, a point of order could lie against the
bill. S. 1 would also require regulatory review of proposed rulemakings
proposed by agencies in the executive branch. This is a vital step
because Congress cannot always anticipate how a regulation will be
interpreted. S. 1 would closely parallel the regulatory review
Executive orders issued by President Clinton. I am pleased to see these
two principles of my own mandate relief bill at the heart of S. 1.
During my work on mandate relief, I have heard from State and local
officials in North Dakota about the costs that Federal mandates impose.
Examples of especially burdensome
mandates include cleanup responsibilities under Superfund. The city of
Minot is entangled in a wrangle with potentially responsible parties
over cleanup costs for old Minot landfill. The Minot landfill, used
between 1962 and 1970, is now a Superfund site. The city of Minot has
been working to clean up that site since 1986. To date, Minot has spent
$873,000 in order to comply with environmental mandates.
Water testing mandates can also be unreasonable--Sherwood, ND,
population 286, must spend $2,000 annually--half its budget--to test
its water supply. Even small communities must have clean drinking
water. But they should also have flexibility in abiding by burdensome
mandates. And they certainly are entitled to know how burdensome a bill
could turn out to be.
private sector analysis
Another part of our society that needs notice of and information on
costly mandates is the private sector. I am very pleased that the
conferees have retained an amendment on this subject that I offered in
markup last year. My amendment would require that the CBO analyze
mandates on the private sector. The requirement is not as strict as
that for analysis of intergovernmental mandates--if CBO cannot
reasonably make an estimate of a private sector mandate, the bill would
create no point of order--but the argument is the same.
My point in offering this amendment was simply that there is no
reason not to analyze costs on the private sector if we do the analysis
for the public sector. To pretend we need to have CBO analyze the
impact of public sector mandates, while skipping over the private
sector, is to violate elementary economics. The private sector is three
or four times bigger than the public sector. If we should assess the
impact of unfunded mandates on local governments we surely should
assess the impact on our Nation's businesses. The
[[Page S3921]] private sector is the foundation on which we build the
budgets of the Federal Government and the State and local governments.
I know some of my colleagues are concerned about analyzing private
sector mandates. However, the analysis required by my amendment is no
great mystery. We already examine the impact of paperwork on the
private sector. Federal agencies must calculate the hours required to
fill out paper. The Internal Revenue Service performs analysis of tax
legislation and possible effects on the private sector. The Joint Tax
Committee performs the same function for proposed legislation.
The Office of Management and Budget's Office of Information and
Regulatory Affairs has a regulatory review program that oversees the
development of all Federal regulations. President Clinton's Executive
Order 12866--Regulatory Planning and Review--requires agencies to
conduct analysis of costs to the private sector of proposed
regulations. The Office of Management and Budget therefore has
developed a reservoir of knowledge on the impact of public laws.
Federal agencies have long experience in analyzing the costs to the
private sector of relevant legislation and regulation. USDA studies the
impacts of laws on our Nation's farmers. The Commerce Department's
Bureau of Economic Analysis reviews economic impacts on the private
sector. Our trade agencies study the economic impact of trade policies.
EPA has calculated that the costs of environmental mandates to the
private sector has risen from $16.2 billion in 1972 to an estimated
$76.1 billion in 1995--constant 1986 dollars.
And the duties that S. 1 would impose on the Congressional Budget
Office are not new. The CBO has estimated private sector effects of
complicated legislation--NAFTA and two proposed health care reform
bills are outstanding examples.
So, Mr. President, the analysis of private sector costs is not rocket
science. And this information will be cheap at the price. The CBO has a
running start, and can use its knowledge base from existing analyses
and models. This conference report authorizes $4.5 million a year for
the CBO for this mandate review analysis work to begin.
I predict that CBO review will pay for itself many times over by
enabling the Congress to avoid burdening businesses with ill-considered
mandates. I would like to thank the conferees for retaining my private
sector amendment in this bill.
other amendments
Let me also briefly mention two other amendments of mine that the
Senate added to this bill. A number of North Dakotans have been
particularly irked by the requirement that Federal building projects be
built according to metric measurements rather than English ones. This
is increasing the cost of medical staff housing being built on an
Indian reservation in my State. Fortunately, the Indian Health Service
has now agreed to drop this costly and unworkable requirement, which
would have delayed staffing for an Indian hospital.
However, as a policy matter I think we need to suspend this mandate
now, study its costs, and decide whether we really need it. I offered
an amendment to do that on the floor, and after some discussion the
Senate passed that amendment. I am pleased that the conferees have
retained that amendment in the conference report.
Lastly, title III of the conference report retains my suggestion that
we not set up a new commission to study Federal mandates but rather
assign that task to the Advisory Commission on Intergovernmental
Relations [ACIR]. ACIR has the knowledge, experience, trust and network
to get this study done and do it well. I did not understand why we
needed a new commission when this Congress has been working hard to cut
boards and commissions. I am glad the conferees have taken my point and
have provided that ACIR shall do the studying. I look forward to
working with the Senator from Idaho, the Senator from Ohio, and other
interested Senators to ensure that the ACIR receives the funding that
this bill authorizes for both this fiscal year and next.
Mr. President, let me just conclude by saying that I am pleased that
the long unfunded mandates debate has finally come to fruition. I would
thank Senators Glenn and Kempthorne for their leadership on this issue,
and for their willingness to hear out my concerns with this bill and
make changes. I think our consideration of this bill on the floor
improved it markedly, and I appreciated the opportunity to help in that
effort.
This bill makes a real and positive change in the relationship
between the Federal Government and State, local, and tribal
governments. I hope the House will pass S. 1 tomorrow, and I look
forward to the President's signing this bill very soon.
Mr. LEVIN. Mr. President, I will be voting in opposition to the
conference report to S. 1, because the problems I had with the bill as
it passed the Senate have not been resolved or abated in the conference
report. I had hoped to be able to support legislation this year to
address the unfunded mandates problem of State, local, and tribal
governments. I was a cosponsor of last year's bill, S. 993, which was
wholeheartedly endorsed by all the organizations representing majors,
Governors, State legislators, county officials, and other local elected
officials. Last year's bill would have forced Congress to estimate the
costs of Federal mandates and authorize appropriations to the level of
the estimated costs. In the words of the State and local officials last
year, it was a tough, important, meaningful bill.
Having served on the Detroit City Council for many years in the
1970's, I am well aware of the problems and constraints Federal
mandates place on local officials. My first Senate campaign in 1978 was
based on my desire to make the Federal bureaucrats more sensitive to
local concerns. And I know these problems continue and that Congress
simply hasn't paid enough attention to the costs we impose on State and
local governments. Yet, I did not support S. 1 as it passed the Senate,
and I cannot support the conference report.
In some respects, S. 1 simply goes too far; in other respects, it
promises more than it can deliver. It goes too far in taking CBO cost
estimates and locking them in for at least 5 years as the level at
which we are expected to fund State and local governments. While these
cost estimates may be useful for us in assessing the costs and benefits
of legislating in a particular area, they are far too unreliable to
serve as the basis for a mandated level of appropriations. An effort
was made to address this concern when Senator Byrd offered an amendment
to require agencies to notify Congress when the level of appropriations
falls short of the CBO cost estimate. That was an improvement; but it
wasn't enough, because absent our enactment of another law in response
to that notice, the mandate at issue would expire. S. 1, therefore,
ends up requiring that we legislate twice on the very same issues--once
when we appropriate at a level less than the estimated cost of the
mandate and once again to affirm that prior appropriations amount.
S. 1 is inadequate in that it fails to address what I believe will be
the real life concerns of State, local, and tribal governments in the
next 10 years as we face scarce Federal resources. The problem won't be
so much the number of mandates we place on State and local governments;
it will be the fact that we will be pulling out Federal funds and
assistance used to address problems that won't go away when the Federal
money does. We will be cutting funds for education, the homeless,
community
development, you name it, and State and local governments will be left
to solve the problems with their own resources. S. 1 does not address
that situation.
Another problem with S. 1 is the inherent unfairness in the bill's
treatment between the public and private sector. S. 1 requires us to
overcome a point of order if we don't pay for a Federal
intergovernmental mandate, but it doesn't create a similar point of
order for private sector mandates. There is a presumption created
thereby that we should fund the mandate or not apply it to the public
sector. This is particularly troubling when the State, local, or tribal
government is acting in the same capacity as a private sector entity.
S. 1 could put private entities at a competitive disadvantage relative
to State, local, and tribal governments
[[Page S3922]] that operate the same kind of businesses.
S. 1 also has the potential of causing havoc in the legislative
process and aiding in the very gridlock we are all so desperate to
avoid. It's very important that we require an analysis of the impact of
costs on State and local governments and the private sector before a
committee reports a bill to the full Senate for consideration. That's
what the hearing process is supposed to be about. The public is
supposed to let us know just what the consequences of our proposals
could be. And, it's very important that the requirement for a cost
analysis be enforced by saying that a point of order will lie against a
bill
that doesn't have that cost analysis. But to go to the next step and
say that an often problematical cost estimate will now become the
actual cost--that what CBO estimates will be the cost to State and
local governments for each year of the authorization, moves from being
a cost estimate to an assertion of actual costs and that that level of
costs should be funded--that is an unreasonable approach. And the
mechanisms used to enforce that approach could cause endless delays and
tie up the legislative process.
For these reasons, Mr. President, I will vote against the conference
report. I do want to commend, however, Senator Glenn and Senator
Kempthorne in their successful effort on this bill. Setting aside our
differing opinions on the final outcome, I think these two gentleman
have conducted themselves in a remarkably able fashion with good humor
and a strong sense of fairness. I particularly appreciate Senator
Glenn's efforts to be responsive to my concerns, and I congratulate him
on accomplishing passage of this bill. The State and local officials
have a great friend and supporter in the senior Senator from Ohio.
The PRESIDING OFFICER (Mr. Kempthorne). The yeas and nays have been
ordered.
The clerk will call the roll.
The bill clerk called the roll.
The result was announced--yeas 91, nays 9, as follows:
[Rollcall Vote No. 104 Leg.]
YEAS--91
Abraham
Akaka
Ashcroft
Baucus
Bennett
Biden
Bingaman
Bond
Breaux
Brown
Bryan
Burns
Campbell
Chafee
Coats
Cochran
Cohen
Conrad
Coverdell
Craig
D'Amato
Daschle
DeWine
Dodd
Dole
Domenici
Dorgan
Exon
Faircloth
Feingold
Feinstein
Ford
Frist
Glenn
Gorton
Graham
Gramm
Grams
Grassley
Gregg
Harkin
Hatch
Hatfield
Heflin
Helms
Hollings
Hutchison
Inhofe
Inouye
Jeffords
Johnston
Kassebaum
Kempthorne
Kennedy
Kerrey
Kerry
Kohl
Kyl
Lott
Lugar
Mack
McCain
McConnell
Mikulski
Moseley-Braun
Moynihan
Murkowski
Murray
Nickles
Nunn
Packwood
Pell
Pressler
Pryor
Reid
Robb
Rockefeller
Roth
Santorum
Shelby
Simon
Simpson
Smith
Snowe
Specter
Stevens
Thomas
Thompson
Thurmond
Warner
Wellstone
NAYS--9
Boxer
Bradley
Bumpers
Byrd
Lautenberg
Leahy
Levin
Lieberman
Sarbanes
So the conference report was agreed to.
Mr. GLENN. Mr. President, I move to reconsider the vote by which the
conference report was agreed to.
Mr. BOND. I move to lay that motion on the table.
The motion to lay on the table was agreed to.
____________________