[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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