[Congressional Record Volume 152, Number 45 (Monday, April 24, 2006)]
[Senate]
[Pages S3414-S3415]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
FEDERAL COURT CONSENT DECREES
Mr. ALEXANDER. Mr. President, I ask unanimous consent to print in the
Record an editorial from the Wall Street Journal, dated April 18,
entitled ``Democracy by Decree.''
There being no objection, the material was ordered to be printed in
the Record, as follows:
[From the Wall Street Journal, Apr. 18, 2006]
Democracy by Decree
Miracles do happen. In Los Angeles last week a state judge
lifted a consent decree issued in 1991 after parents filed a
lawsuit claiming that public schools in poor neighborhoods
had too few experienced teachers. The court has since ordered
the school district to spend an average of $11 million a year
on teacher training in certain schools. And now, almost 15
years later, the judge has finally declared herself satisfied
and declined to extend the decree for another five years.
Other locales aren't so lucky. Consent decrees are judicial
decrees that enforce agreements between state and local
governments and the parties suing them. But such decrees have
proliferated to the extent that judges are micromanaging many
public institutions in the name of protecting ``rights.'' And
they're costing taxpayers money and infringing on the right
to self-government.
In New York, a 1974 federal consent decree has mandated
bilingual education in the city's schools for more than 30
years--even though many parents want no part of it. In
Tennessee, a federal consent decree from 1979 prevents the
state from requiring generic, rather than brand-name, drugs
for Medicaid patients despite the fact that this is standard
practice for many private drug plans and other state Medicaid
programs. And in Los Angeles, a 1996 consent decree has
forced the Metropolitan Transit Authority to spend 47% of its
budget on city buses no matter what the MTA deems to be its
priorities.
New York Law professors David Schoenbrod and Ross Sandler
call this ``democracy by decree,'' or the process by which
public-policy decisions are taken out of the hands of elected
legislators and left to an unelected judiciary. Their 2002
book of that name is the inspiration for legislation
introduced in the Senate last month that would limit the use
of federal consent decrees.
The legislation's sponsors are Tennessee Republican Lamar
Alexander and Arkansas Democrat Mark Pryor. It's no
coincidence that both Senators were once state officials.
``I'm looking at this as a former Governor,'' says Mr.
Alexander. ``The idea is to try to let those who are elected
make policy unencumbered by courts.'' Mr. Pryor is a former
Arkansas Attorney General. Similar legislation is pending in
the House.
Consent decrees can be a huge burden on state and local
officials. They sometimes last for decades, long after the
officials who agreed to them have left office. Newly elected
officials often find themselves locked in by the decrees,
unable to put in place policies they were elected to
implement. Outgoing officials have been known to sign their
names to such decrees in an effort to force their successors
to go along with policies they oppose.
One part of the Alexander-Pryor solution is term limits--
either four years for a decree, or the expiration of the term
of the highest elected official who signed his name to it.
Their legislation also sensibly shifts the burden of proof
for modifying or ending the decree to plaintiffs from state
and local governments.
The legislation endorses the view of a unanimous Supreme
Court, which in 2004 called for limiting decrees. It warned
in Frew v. Hawkins that federal consent decrees could
encroach on state and local power. They may ``improperly
deprive future officials of their designated and executive
powers,'' the Court said. They may also lead ``to federal
court oversight of state programs for long periods of time
even absent an ongoing violation of the law.''
There are federal consent decrees in force in all 50
states, with judges running prisons, schools, welfare
agencies, health-care systems and more--based on the advice
of the advocates who brought the original lawsuits. It's time
to turn those jobs back to the elected lawmakers, and it's
good to see at least someone in this ostensibly conservative
Congress show some modesty about federal authority.
Mr. ALEXANDER. Mr. President, 25 of us in the Senate have introduced
S. 489, a bipartisan piece of legislation--Senators Kyl and Cornyn on
the Republican side and Senators Pryor and Nelson on the Democratic
side, and a number of others--to try to put some reasonable limits on
the use of Federal court consent decrees that take away from elected
officials and State and local government the right to make policy
decisions that they make so they can get on with their business without
undue interference from the courts. It is based on a scholarship book
called ``Democracy by Decree'' by two former lawyers for the National
Resources Defense Council, David Schoenbrod and Ross Sandler.
Their scholarship has been applauded by a broad range of people,
including former New York City Mayor Ed Koch and former Senator Bill
Bradley. It talks about the importance of taking Federal court consent
decrees, which can be very useful tools, and making certain they don't
last forever.
To use a one-paragraph example:
In New York, a 1974 federal consent decree has mandated
bilingual education in the city's schools for more than 30
years--even though many parents want no part of it.
In Tennessee--my State--a Federal consent degree from 1979 prevents
the state from requiring generic, rather than brand-name, drugs for
Medicaid patients despite the fact that this is standard practice for
many private drug plans and other State Medicaid Programs.
While the State waited for a Federal court to decide how much it
wanted to intervene, it was costing the State enough to give every
Tennessee teacher that year a $700 pay raise.
And in Los Angeles, a 1996 consent decree has forced the Metropolitan
Transit Authority to spend 47 percent of its budget on city buses no
matter what the MTA deems to be its priorities.
In the House of Representatives, the Republican whip, Roy Blunt, is
the principal sponsor. Jim Cooper, a Democrat from Nashville, is the
principal Democratic sponsor. Representative Cooper says this bill is
about keeping democracy fresh. It has had hearings in the Senate. It is
scheduled for markup. It is a good, reasonable bill. It is making
progress in the House.
We are going to have to bring the growth of Medicaid spending under
control over the next several years. We cannot ask State governments to
do that unless we give them more authority over their own decisions.
This bill would help do that.
I call this editorial to the attention of my colleagues.
I thank the Republican whip for granting me this extra time.
[[Page S3415]]
I yield the floor.
The PRESIDING OFFICER. The assistant majority leader is recognized.
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