[Congressional Record Volume 145, Number 82 (Thursday, June 10, 1999)]
[Senate]
[Pages S6869-S6875]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. THOMPSON (for himself, Mr. Levin, Mr. Voinovich, Mr. Robb, 
        Mr. Cochran, Mrs. Lincoln, Mr. Enzi, Mr. Breaux, Mr. Roth, and 
        Mr. Bayh):
  S. 1214. A bill to ensure the liberties of the people by promoting 
federalism, to protect the reserved powers of the States, to impose 
accountability for Federal preemption of State and local laws, and for 
other purposes; to the Committee on the Budget and the Committee on 
Governmental Affairs, jointly, pursuant to the order of August 4, 1977, 
with instructions that if one committee reports, the other committee 
has 30 days to report or be discharged.


               THE FEDERALISM ACCOUNTABILITY ACT OF 1999

  Mr. THOMPSON. Mr. President, today I rise to introduce the 
``Federalism Accountability Act,'' a bill to promote and preserve 
principles of federalism. Federalism raises two fundamental questions 
that policy makers should answer: What should government be doing? And 
what level of government should do it? Everything else flows from them. 
That's why federalism is at the heart of our Democracy.
  The Founders created a dual system of governance for America, 
dividing power between the Federal Government and the States. The Tenth 
Amendment makes clear that States retain all governmental power not 
granted to the Federal Government by the Constitution. The Founders 
intended that the State and Federal governments would check each 
other's encroachment on individual rights. As Alexander Hamilton stated 
in the Federalist Papers, No. 28:

       Power being almost always the rival of power, the general 
     government will at times stand ready to check the usurpations 
     of the state governments, and these will have the same 
     disposition towards the general government. The people, by 
     throwing themselves into either scale, will infallibly make 
     it preponderate. If their rights are invaded by either, they 
     can make use of the other as the instrument of redress.

  The structure of our constitutional system assumes that the states 
will maintain a sovereign status independent of the national 
government. At the same time, the Supremacy Clause states that Federal 
laws made pursuant to the Constitution shall be the supreme law of the 
land. The ``Federalism Accountability Act'' is intended to require 
careful thought and accountability when we reconcile the competing 
principles embodied in the Tenth Amendment and the Supremacy Clause. 
Congress and the Executive Branch should not lightly exercise the 
powers conferred by the Supremacy Clause without also shouldering 
responsibility. As the Supreme Court has been signaling in recent 
decisions, where the authority exists, the democratic branches of the 
Federal Government should make the primary decisions whether or not to 
limit state power, and they ought to exercise this power unambiguously.
  We need to face the fact that Congress and the Executive Branch too 
often have acted as if they have a general police power to engage in 
any issue, no matter how local. Both Congress and the Executive Branch 
have neglected to consider prudential and constitutional limits on 
their powers. We should not forget that even where the Federal 
Government has the constitutional authority to act, state governments 
may be better suited to address certain matters. Congress has a habit 
of preempting State and local law on a large scale, with little thought 
to the consequences. Congress and the White House are ever eager to 
pass federal criminal laws to appear responsive to highly publicized 
events. We are now finding that this often is not only unnecessary and 
unwise, but it also has harmful implications for crime control.
  Too often, federalism principles have been ignored. The General 
Accounting Office reported to our Committee that there has been gross 
noncompliance by the agencies with the executive order on federalism 
that has been law since it was issued by President Reagan in 1987. In a 
review of over 11,000 Federal rules recently issued during a 3-year 
period, GAO found that the agencies had prepared only 5 federalism 
assessments under the federalism order. It is time for legislation to 
ensure that the agencies take such requirements more seriously.
  To be sure, we have made some inroads on federalism. The Supreme 
Court has recently revived federalist doctrines. Congress passed the 
Unfunded Mandates Reform Act to help discourage the wholesale passage 
of new legislative unfunded mandates. Congress also gave the States the 
Safe Drinking Water Act, reduced agency micro-management, and provided 
block grants in welfare, transportation, drug prevention, and--just 
recently--education flexibility. Much of the innovation that has 
improved the country began at the State and local level.
  But unless we really understand that federalism is the foundation of 
our governmental system, these bright achievements will fade. As we 
cross into the 21st century, federalism must constantly illuminate our 
path. Our governmental structure is based on an optimistic belief in 
the power of people and their communities. I share that view. It is my 
hope that the Federalism Accountability Act give a greater voice to 
State and local governments and the people they serve and reinvigorate 
the debate on federalism.
  The ``Federalism Accountability Act'' will promote restraint in the 
exercise of federal power. It establishes a rule of construction 
requiring an explicit statement of congressional or agency intent to 
preempt. Congress would be required to make explicit statements on the 
extent to which bills or joint resolutions are intended to preempt 
State or local law, and if so, an explanation of the reasons for such 
preemption.
  Agencies would designate a federalism officer to implement the 
requirements of this legislation and to serve as a liaison to State and 
local officials. Early in the process of developing rules, Federal 
agencies would be required to notify, consult with, and provide an 
opportunity for meaningful participation by public officials of State 
and local governments. The agency would prepare a federalism assessment 
for rules that have federalism impacts. Each federalism assessment 
would include an analysis of: whether, why, and to what degree the 
Federal rule preempts state law; other significant impacts on State and 
local governments; measures taken by the agency, including the 
consideration of regulatory alternatives, to minimize the impact on 
State and local governments; and the extent of the agency's prior 
consultation with public officials, the nature of their concerns, and 
the extent to which those concerns have been met.
  The legislation also will require the Congressional Budget Office, 
with the help of the Office of Management and Budget and the 
Congressional Research Service, to compile a report on preemptions by 
Federal rules, court decisions, and legislation. I hope this report 
will lead to an informed debate on the appropriate use of preemption to 
reach policy goals.
  Finally, the legislation amends two existing laws to promote 
federalism. First, it amends the Government Performance and Results Act 
of 1993 to clarify that performance measures for State-administered 
grant programs are to be determined in cooperation with public 
officials. Second, it amends the Unfunded Mandates Reform Act of 1995

[[Page S6873]]

to clarify that major new requirements imposed on States under 
entitlement authority are to be scored by CBO as unfunded mandates. It 
also requires that where Congress has capped the Federal share of an 
entitlement program, then the Committee report and the accompanying CBO 
report must analyze whether the legislation includes new flexibility or 
whether there is existing flexibility to offset additional costs.
  Mr. President, this legislation was developed with representatives of 
the ``Big 7'' organizations representing State and local government, 
including the National Governors' Association, the National Conference 
of State Legislatures, the Council of State Governments, the National 
League of Cities, the National Association of Counties, the U.S. 
Conference of Mayors, and the International City/County Management 
Association. I am pleased that this legislation is supported by 
Senators Levin, Voinovich, Robb, Cochran, Lincoln, Enzi, Breaux, Roth, 
and Bayh. I urge my colleagues to support this much-needed legislation.
  I ask unanimous consent that the bill be printed in the Record.
  There being no objection, the bill was ordered to be printed in the 
Record, as follows:

                                S. 1214

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``Federalism Accountability 
     Act of 1999''.

     SEC. 2. FINDINGS.

       Congress finds that--
       (1) the Constitution created a strong Federal system, 
     reserving to the States all powers not delegated to the 
     Federal Government;
       (2) preemptive statutes and regulations have at times been 
     an appropriate exercise of Federal powers, and at other times 
     have been an inappropriate infringement on State and local 
     government authority;
       (3) on numerous occasions, Congress has enacted statutes 
     and the agencies have promulgated rules that explicitly 
     preempt State and local government authority and describe the 
     scope of the preemption;
       (4) in addition to statutes and rules that explicitly 
     preempt State and local government authority, many other 
     statutes and rules that lack an explicit statement by 
     Congress or the agencies of their intent to preempt and a 
     clear description of the scope of the preemption have been 
     construed to preempt State and local government authority;
       (5) in the past, the lack of clear congressional intent 
     regarding preemption has resulted in too much discretion for 
     Federal agencies and uncertainty for State and local 
     governments, leaving the presence or scope of preemption to 
     be litigated and determined by the judiciary and sometimes 
     producing results contrary to or beyond the intent of 
     Congress; and
       (6) State and local governments are full partners in all 
     Federal programs administered by those governments.

     SEC. 3. PURPOSES.

       The purposes of this Act are to--
       (1) promote and preserve the integrity and effectiveness of 
     our Federal system of government;
       (2) set forth principles governing the interpretation of 
     congressional and agency intent regarding preemption of State 
     and local government authority by Federal laws and rules;
       (3) establish an information collection system designed to 
     monitor the incidence of Federal statutory, regulatory, and 
     judicial preemption; and
       (4) recognize the partnership between the Federal 
     Government and State and local governments in the 
     implementation of certain Federal programs.

     SEC. 4. DEFINITIONS.

       In this Act the definitions under section 551 of title 5, 
     United States Code, shall apply and the term--
       (1) ``local government'' means a county, city, town, 
     borough, township, village, school district, special 
     district, or other political subdivision of a State;
       (2) ``public officials'' means elected State and local 
     government officials and their representative organizations;
       (3) ``State''--
       (A) means a State of the United States and an agency or 
     instrumentality of a State;
       (B) includes the District of Columbia and any territory of 
     the United States, and an agency or instrumentality of the 
     District of Columbia or such territory;
       (C) includes any tribal government and an agency or 
     instrumentality of such government; and
       (D) does not include a local government of a State; and
       (4) ``tribal government'' means an Indian tribe as that 
     term is defined under section 4(e) of the Indian Self-
     Determination and Education Assistance Act (25 U.S.C. 
     450b(e)).

     SEC. 5. COMMITTEE OR CONFERENCE REPORTS.

       (a) In General.--The report accompanying any bill or joint 
     resolution of a public character reported from a committee of 
     the Senate or House of Representatives or from a conference 
     between the Senate and the House of Representatives shall 
     contain an explicit statement on the extent to which the bill 
     or joint resolution preempts State or local government law, 
     ordinance, or regulation and, if so, an explanation of the 
     reasons for such preemption. In the absence of a committee or 
     conference report, the committee or conference shall report 
     to the Senate and the House of Representatives a statement 
     containing the information described in this section before 
     consideration of the bill, joint resolution, or conference 
     report.
       (b) Content.--The statement under subsection (a) shall 
     include an analysis of--
       (1) the extent to which the bill or joint resolution 
     legislates in an area of traditional State authority; and
       (2) the extent to which State or local government authority 
     will be maintained if the bill or joint resolution is enacted 
     by Congress.

     SEC. 6. RULE OF CONSTRUCTION RELATING TO PREEMPTION.

       (a) Statutes.--No statute enacted after the effective date 
     of this Act shall be construed to preempt, in whole or in 
     part, any State or local government law, ordinance, or 
     regulation, unless--
       (1) the statute explicitly states that such preemption is 
     intended; or
       (2) there is a direct conflict between such statute and a 
     State or local law, ordinance, or regulation so that the two 
     cannot be reconciled or consistently stand together.
       (b) Rules.--No rule promulgated after the effective date of 
     this Act shall be construed to preempt, in whole or in part, 
     any State or local government law, ordinance, or regulation, 
     unless--
       (1)(A) such preemption is authorized by the statute under 
     which the rule is promulgated; and
       (B) the rule, in compliance with section 7, explicitly 
     states that such preemption is intended; or
       (2) there is a direct conflict between such rule and a 
     State or local law, ordinance, or regulation so that the two 
     cannot be reconciled or consistently stand together.
       (c) Favorable Construction.--Any ambiguities in this Act, 
     or in any other law of the United States, shall be construed 
     in favor of preserving the authority of the States and the 
     people.

     SEC. 7. AGENCY FEDERALISM ASSESSMENTS.

       (a) In General.--The head of each agency shall--
       (1) be responsible for implementing this Act; and
       (2) designate an officer (to be known as the federalism 
     officer) to--
       (A) manage the implementation of this Act; and
       (B) serve as a liaison to State and local officials and 
     their designated representatives.
       (b) Notice and Consultation With Potentially Affected State 
     and Local Government.--Early in the process of developing a 
     rule and before the publication of a notice of proposed 
     rulemaking, the agency shall notify, consult with, and 
     provide an opportunity for meaningful participation by public 
     officials of governments that may potentially be affected by 
     the rule for the purpose of identifying any preemption of 
     State or local government authority or other significant 
     federalism impacts that may result from issuance of the rule. 
     If no notice of proposed rulemaking is published, 
     consultation shall occur sufficiently in advance of 
     publication of an interim final rule or final rule to provide 
     an opportunity for meaningful participation.
       (c) Federalism Assessments.--
       (1) In general.--In addition to whatever other actions the 
     federalism officer may take to manage the implementation of 
     this Act, such officer shall identify each proposed, interim 
     final, and final rule having a federalism impact, including 
     each rule with a federalism impact identified under 
     subsection (b), that warrants the preparation of a federalism 
     assessment.
       (2) Preparation.--With respect to each such rule identified 
     by the federalism officer, a federalism assessment, as 
     described in subsection (d), shall be prepared and published 
     in the Federal Register at the time the proposed, interim 
     final, and final rule is published.
       (3) Consideration of assessment.--The agency head shall 
     consider any such assessment in all decisions involved in 
     promulgating, implementing, and interpreting the rule.
       (4) Submission to the office of management and budget.--
     Each federalism assessment shall be included in any 
     submission made to the Office of Management and Budget by an 
     agency for review of a rule.
       (d) Contents.--Each federalism assessment shall include--
       (1) a statement on the extent to which the rule preempts 
     State or local government law, ordinance, or regulation and, 
     if so, an explanation of the reasons for such preemption;
       (2) an analysis of--
       (A) the extent to which the rule regulates in an area of 
     traditional State authority; and
       (B) the extent to which State or local authority will be 
     maintained if the rule takes effect;
       (3) a description of the significant impacts of the rule on 
     State and local governments;
       (4) any measures taken by the agency, including the 
     consideration of regulatory alternatives, to minimize the 
     impact on State and local governments; and

[[Page S6874]]

       (5) the extent of the agency's prior consultation with 
     public officials, the nature of their concerns, and the 
     extent to which those concerns have been met.
       (e) Publication.--For any applicable rule, the agency shall 
     include a summary of the federalism assessment prepared under 
     this section in a separately identified part of the statement 
     of basis and purpose for the rule as it is to be published in 
     the Federal Register. The summary shall include a list of the 
     public officials consulted and briefly describe the views of 
     such officials and the agency's response to such views.

     SEC. 8. PERFORMANCE MEASURES.

       Section 1115 of title 31, United States Code, is amended by 
     adding at the end the following:
       ``(g) The head of an agency may not include in any 
     performance plan under this section any agency activity that 
     is a State-administered Federal grant program, unless the 
     performance measures for the activity are determined in 
     cooperation with public officials as defined under section 4 
     of the Federalism Accountability Act of 1999.''.

     SEC. 9. CONGRESSIONAL BUDGET OFFICE PREEMPTION REPORT.

       (a) Office of Management and Budget Information.--Not later 
     than the expiration of the calendar year beginning after the 
     effective date of this Act, and every year thereafter, the 
     Director of the Office of Management and Budget shall submit 
     to the Director of the Congressional Budget Office 
     information describing interim final rules and final rules 
     issued during the preceding calendar year that preempt State 
     or local government authority.
       (b) Congressional Research Service Information.--Not later 
     than the expiration of the calendar year beginning after the 
     effective date of this Act, and every year thereafter, the 
     Director of the Congressional Research Service shall submit 
     to the Director of the Congressional Budget Office 
     information describing court decisions issued during the 
     preceding calendar year that preempt State or local 
     government authority.
       (c) Congressional Budget Office Report.--
       (1) In general.--After each session of Congress, the 
     Congressional Budget Office shall prepare a report on the 
     extent of Federal preemption of State or local government 
     authority enacted into law or adopted through judicial or 
     agency interpretation of Federal statutes during the previous 
     session of Congress.
       (2) Content.--The report under paragraph (1) shall 
     contain--
       (A) a list of Federal statutes preempting, in whole or in 
     part, State or local government authority;
       (B) a summary of legislation reported from committee 
     preempting, in whole or in part, State or local government 
     authority;
       (C) a summary of rules of agencies preempting, in whole or 
     in part, State and local government authority; and
       (D) a summary of Federal court decisions on preemption.
       (3) Availability.--The report under this section shall be 
     made available to--
       (A) each committee of Congress;
       (B) each Governor of a State;
       (C) the presiding officer of each chamber of the 
     legislature of each State; and
       (D) other public officials and the public on the Internet.

     SEC. 10. FLEXIBILITY AND FEDERAL INTERGOVERNMENTAL MANDATES.

       (a) Definition.--Section 421(5)(B) of the Congressional 
     Budget Act of 1974 (2 U.S.C. 658(5)(B)) is amended--
       (1) by striking ``(i)(I) would'' and inserting ``(i) 
     would'';
       (2) by striking ``(II) would'' and inserting ``(ii)(I) 
     would''; and
       (3) by striking ``(ii) the'' and inserting ``(II) the''.
       (b) Committee Reports.--Section 423(d) of the Congressional 
     Budget Act of 1974 (2 U.S.C. 658b(d)) is amended--
       (1) in paragraph (1)(C) by striking ``and'' after the 
     semicolon;
       (2) in paragraph (2) by striking the period and inserting 
     ``; and''; and
       (3) by adding at the end the following:
       ``(3) if the bill or joint resolution would make the 
     reduction specified in section 421(5)(B)(ii)(I), a statement 
     of how the committee specifically intends the States to 
     implement the reduction and to what extent the legislation 
     provides additional flexibility, if any, to offset the 
     reduction.''.
       (c) Congressional Budget Office Estimates.--Section 424(a) 
     of the Congressional Budget Act of 1974 (2 U.S.C. 658c(a)) is 
     amended--
       (1) by redesignating paragraph (3) as paragraph (4); and
       (2) by inserting after paragraph (2) the following:
       ``(3) Additional flexibility information.--The Director 
     shall include in the statement submitted under this 
     subsection, in the case of legislation that makes changes as 
     described in section 421(5)(B)(ii)(I)--
       ``(A) if no additional flexibility is provided in the 
     legislation, a description of whether and how the States can 
     offset the reduction under existing law; or
       ``(B) if additional flexibility is provided in the 
     legislation, whether the resulting savings would offset the 
     reductions in that program assuming the States fully 
     implement that additional flexibility.''.

     SEC. 11. EFFECTIVE DATE.

       This Act and the amendments made by this Act shall take 
     effect 90 days after the date of enactment of this Act.

  Mr. LEVIN. Mr. President, I am happy to join Senators Thompson and 
Voinovich and a bipartisan group of our colleagues in introducing the 
Federalism Accountability Act of 1999. The bill would require an 
explicit statement of Federal preemption in Federal legislation in 
order for such preemption to occur unless there exists a direct 
conflict between the Federal law and a State or local law which cannot 
be reconciled. Enactment of this bill would close the back door of 
implied Federal preemption and put the responsibility for determining 
whether or not State or local governments should be preempted back in 
Congress, where it belongs. The bill would also institute procedures to 
ensure that, in issuing new regulations, federal agencies respect State 
and local authority.
  Mr. President, we want to ensure that the federal government works in 
partnership with our State and local government colleagues. One way of 
making sure this happens is that preemption occurs only when Congress 
makes a conscious decision to preempt and it is amply clear to all 
parties that preemption will occur. In 1991, I sponsored a bill, S. 
2080, to clarify when preemption does and does not occur. I have since 
sponsored two similar bills. When I introduced S. 2080, I noted that 
``state and local officials have become increasingly concerned with the 
number of instances in which State and local laws have been preempted 
by Federal law--not because Congress has done so explicitly, but 
because the courts have implied such preemption. Since 1789, Congress 
has enacted approximately 350 laws specifically preempting State and 
local authority. Half of these laws have been enacted in the last 20 
years. These figures, however, do not touch upon the extensive Federal 
preemption of State and local authority which has occurred as a result 
of judicial interpretation of congressional intent, when Congress' 
intention to preempt has not been explicitly stated in law. When 
Congress is unclear about its intent to preempt, the courts must then 
decide whether or not preemption was intended and, if so, to what 
extent.''
  In the ensuing time, there have been some changes, such as the 
Unfunded Mandates Reform Act, which have strengthened the partnership 
between the federal, state and local governments. Unfortunately, in the 
big picture, there has been little or no evidence of a change in the 
trends that I attempted to address when I introduced S. 2080 in 1991. 
Sometimes we enact a law and it is clear as to the scope of the 
intended preemption. Just as often, we are not clear, or a court takes 
language that appeared to be clear and decides that it is not, and 
construes it in favor of preemption. Similarly, agencies take actions 
that are determined to be preemptive whether their language is clear or 
not.
  Article VI of the Constitution, the supremacy clause, states that 
Federal laws made pursuant to the Constitution ``shall be the supreme 
law of the land.'' In its most basic sense, this clause means that a 
State law is negated or preempted when it is in conflict with a 
constitutionally enacted Federal law. A significant body of case law 
has been developed to arrive at standards by which to judge whether or 
not Congress intended to preempt State or local authority--standards 
which are subjective and have not resulted in a consistent and 
predictable doctrine in resolving preemption questions.
  If we in Congress want Federal law to prevail, we should be clear 
about that. If we want the States to have discretion to go beyond 
Federal requirements, we should be clear about that. If, for example, 
we set a floor in a Federal statute, but are silent on actions which 
meet but then go beyond the Federal requirement, State and local 
governments should be able to act as they deem appropriate. State and 
local governments should not have to wait to see what they can and 
cannot do. Our bill would allow tougher State and local laws given 
congressional silence.
  In addition, the bill contains a requirement that agencies notify, 
and consult with, state and local governments and their representative 
organizations during the development of rules, and publish proposed and 
final federalism assessments along with proposed and final rules. Mr. 
President, it

[[Page S6875]]

should not be necessary to enact legislation to accomplish these 
things. Federal agencies should never issue rules without having the 
best and most complete information possible. Our State and local 
governments are ready, willing, and able to provide their expertise on 
how Federal rules will impact those governments' ability to get their 
jobs done. Common sense dictates that they be notified and consulted 
before the federal government regulates in a way that weakens or 
eliminates the ability of State and local governments to do their jobs, 
or duplicates their efforts.
  The current Administration and previous ones have recognized the 
value of having federal agencies consult with State and local 
governments. However, as was amply demonstrated by a recent GAO report, 
Executive Order requirements for federalism assessments have been 
ignored. The bill would correct this noncompliance by the Executive 
Branch, and ensure that independent agencies, as well, will engage in 
such consultation and publish assessments along with rules.
  Not only will the compilation and issuance of federalism assessments 
force the agencies to think through what they are doing, they will 
bolster the confidence of the public and regulated entities in the 
regulatory process by assuring them that their governments are acting 
in concert and avoiding conflicting or duplicative requirements.
  Our legislation also requires the Congressional Budget Office, with 
the assistance of the Congressional Research Service, at the end of 
each Congress, to compile a report on the number of statutory and 
judicially interpreted preemptions. This will constitute the first time 
such a complete report has been done, and the information will be 
valuable to the debate regarding the appropriate use of preemption to 
reach Federal goals.
  Mr. President, legislation to clarify when preemption occurs and 
otherwise strengthen the intergovernmental relationship has been 
endorsed by the major state and local government organizations. I would 
like to thank Senators Thompson and Voinovich and their staffs for 
their hard work in this area.
  Mr. VOINOVICH. Mr. President, I rise today to introduce legislation, 
the Federalism Accountability Act of 1999, along with my colleagues 
Senator Fred Thompson and Senator Carl Levin. Our legislation is the 
culmination of months of bipartisan effort that we believe will restore 
the fundamental principles of federalism.
  In my 33 years of public service, at every level of government, I 
have seen first hand the relationship of the federal government with 
respect to state and local government. The nature of that relationship 
has molded my passion for the issue of federalism and the need to 
spell-out the appropriate role of the federal government with respect 
to our state and local governments. It is why I vowed that when I was 
elected to the Senate, I would work to find ways in which the federal 
government can be a better partner with these levels of government.
  I have long been concerned with the federal government becoming 
involved in matters and issues which I believe are best handled by 
state and local governments. I also have been concerned about the 
tendency of the federal government to preempt our state and local 
governments and mandate new responsibilities without the funding to pay 
for them.
  In a speech before the Volunteers of the National Archives in 1986 
regarding thee relationship of the Constitution with America's cities 
and the evolution of federalism, I brought to the attention of the 
audience my observations since my early days in government regarding 
the course American government had been taking:

       We have seen the expansion of the federal government into 
     new, non-traditional domestic policy areas. We have 
     experienced a tremendous increase in the proclivity of 
     Washington both to preempt state and local authority and to 
     mandate actions on state and local governments. The 
     cumulative effect of a series of actions by the Congress, the 
     Executive Branch and the U.S. Supreme Court have caused some 
     legal scholars to observe that while constitutional 
     federalism is alive in scholarly treatises, it has expired as 
     a practical political reality.

  We have made great progress since I gave that speech more than a 
dozen years go.
  An outstanding article last year written by Carl Tubbesing, the 
deputy executive director of the National Council of State 
Legislatures, in State Legislatures magazine, outlined what he called 
the five ``hallmarks of devolution''--legislation in the 1990's that 
changed the face of the federal-state-local government partnership and 
reversed the decades long trend toward federal centralization.
  These bills are the Unfunded Mandates Reform Act, the Safe Drinking 
Water Reform Act Amendments, Welfare Reform, Medicaid reforms such as 
elimination of the Boren amendment, and the establishment of the 
Children's Health Insurance Program.
  Also, just this year, Congress has passed and the President has 
signed into law two important pieces of legislation which enhance the 
state, local and federal partnership. Those initiatives are the 
Education Flexibility Act, which gives our states and school districts 
the freedom to use their federal funds for identified education 
priorities, and the Anti-Tobacco Recoupment provision in the 
Supplemental Appropriations bill that prevents the federal government 
from taking any portion of the $246 billion in tobacco settlement funds 
from the states.
  Although these achievements have helped revive federalism, it is 
clear that state and local governments still need protection from 
federal encroachment in state and local affairs. It is equally clear 
that the federal government needs to do more to be better partners with 
our state and local governments. As Congress is less eager to impose 
unfunded mandates, largely because of the commitments we won through 
the Unfunded Mandates law, there is a growing interest in imposing 
policy preemptions. The proposed federal moratorium on all state and 
local taxes on Internet commerce is just one striking example that 
could have a devastating effect on the ability of States and localities 
to serve their citizens.
  The danger of this growing trend toward federal preemption is the 
reason the Federalism Accountability Act is so important. The 
legislation makes Congress and federal agencies clear and accountable 
when enacting laws and rules that preempt State and local authority. It 
also directs the courts to err on the side of state sovereignty when 
interpreting vague Federal rules and statutes where the intent to 
preempt state authority is unclear.
  I am particularly gratified that this legislation addresses a 
misinterpretation of the Unfunded Mandates Reform Act as it applies to 
large entitlement programs. The Federalism Accountability Act clarifies 
that major new requirements imposed on States under entitlement 
authority are to be scored by the Congressional Budget Office as 
unfunded mandates. It also requires that where Congress has capped the 
Federal share of an entitlement program, the accompanying committee and 
CBO reports must analyze whether the legislation includes new 
flexibility or whether there is existing flexibility to offset 
additional costs incurred by the States. This important ``fix'' to the 
Unfunded Mandates law is long overdue and I am pleased we are including 
it in our federalism bill.
  The Federalism Accountability Act is a welcome and needed step toward 
protecting our States and communities against interference from 
Washington. It builds upon the gains we have already made in restoring 
the balance between the Federal Government and the States envisioned by 
the Framers of our Constitution. I am proud to have played a role in 
crafting it, and I hope all my colleagues will lend their support to 
this worthy legislation.
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