An article last Sunday about the recent expansion of federal power at the expense of states suggested that Sen. George V. Voinovich (R-Ohio) was the only senator who opposed the juvenile justice bill on federalism grounds. Sen. Fred D. Thompson (R-Tenn.) did so as well. (Published 10/31/1999)
There was a typical menagerie of legislation on Capitol Hill last week. The Senate passed a "partial-birth" abortion ban; the House prepared to take up an assisted suicide ban. Behind the scenes, major battles raged over managed-care restrictions and an overhaul of the juvenile justice system. As usual, Congress addressed issues of great import, such as a massive overhaul of the financial services system, and not-so-great import, such as a "foot fetish" bill making it a federal crime to sell videotapes of animals being tortured with stiletto heels.
But there is one thing those initiatives have in common: They all would expand federal power at the expense of states. Members of Congress still talk a lot about states' rights, about "a devolution of power" to their beloved "laboratories of democracy," but when it comes to actual legislation, a counterdevolution is well underway.
Lawmakers of both parties all seem to support state power in theory, but critics complain that most of them can't help trying to interfere when they don't like the way states are using it.
The assisted suicide ban, for example, would overturn a controversial Oregon law. The so-called Patients Bill of Rights could preempt health-care statutes in dozens of states. The juvenile justice bill, best known for its gun control measures, also would force states to prosecute more adolescents as adults and federalize a variety of crimes extending well beyond graphic footwear videos.
And those aren't the only examples of "preemption" -- that is, when the federal government does something to supersede a state law. The House Judiciary Committee last week passed a bill making electronic signatures valid nationwide, regardless of state laws. An $82.6 billion domestic budget bill stalled over GOP efforts to eliminate needle exchange programs in the District. And a House subcommittee prepared to take up a national electricity deregulation bill that could supersede at least 26 state deregulation plans; a group called Citizens for State Power responded with ads featuring a federal electricity regulator in a sheriff's hat pointing a gun at consumers.
"Everybody up here is constantly saying we should send power out of Washington, but we hardly ever do," complained Sen. George V. Voinovich (R-Ohio), a former two-term governor who spent 32 years in local, county and state government before coming to Congress this year. "I keep trying to get that across to people. It's just impossible to get anyone to listen."
The tensions between federal and state power in America date back to the early debates over the Constitution, as Federalists like Alexander Hamilton argued for a strong national government, while anti-Federalists such as Thomas Jefferson fought for state prerogatives. But in the 1990s, the pendulum has swung -- rhetorically, at least -- far away from Washington, with politicians now routinely pledging to get an out-of-touch, ever-expanding federal government off the backs of innovative states.
Republicans have been especially vocal about devolution, but Democrats -- including President Clinton, a former governor -- have been supportive, too. And the Supreme Court has rediscovered the Tenth Amendment in recent years, striking down several federal laws on the grounds that they intrude on powers reserved to the states.
To be sure, the nation's governors and state legislatures have enjoyed a few major victories on Capitol Hill. In 1995, Congress agreed to end its age-old practice of dumping "unfunded mandates" on states. In 1996, a historic welfare overhaul allowed states to design their own antipoverty programs -- although it also included new mandates forcing states to create child-support bureaucracies. This year, Congress barred federal officials from raiding the $246 billion settlement that states won from tobacco companies.
But states'-rights advocates say that in recent years, the scourge of unfunded federal mandates has been replaced by the straitjacket of direct federal preemption. Sometimes the federal intrusion is blatant, as in the recent congressional move overturning the legalization of medical marijuana in the District, or the three-year moratorium that prohibits states from taxing the Internet. Sometimes they are more subtle, such as an obscure provision Sen. Richard C. Shelby (R-Ala.) tucked into a transportation bill directing states to take steps to protect the privacy of driver's license records.
Even strict states'-rights advocates say Washington's recent tendency to impose uniform laws for complex industries such as banking and telecommunications makes some sense in light of the advance of technology and the rise of the global economy; state regulators are often ill-equipped to deal with international conglomerates, and patchworks of conflicting state laws can boost business costs. But to Michael Bird, a lobbyist for the National Conference of State Legislatures, the problem is not that Congress is butting into some things; it's that it's butting into almost everything.
"It's the same old story: People in Washington think they know what's best for states," Bird said. "They beat their breasts about devolution all the time, but whenever they don't like the way states do something, they step in and do it their way. It's so hypocritical."
Last week's debate in the House Judiciary Committee over a product liability bill was a stark example. The GOP bill at issue includes language preempting state liability laws that favor consumer plaintiffs, but preserving state laws that favor business defendants. So the committee's Democrats proposed an amendment preempting state laws in all cases. Chairman Henry J. Hyde (R-Ill.) crossed party lines to support the amendment, arguing that it makes no sense to support the right of states to protect businesses but not consumers: "I like to support things that I can defend." But no other Republicans joined him, and the amendment failed.
"The Republicans don't really believe in states' rights; they believe in deciding the issue at whatever level of government they think will do it their way," said Rep. Barney Frank (D-Mass.), a member of the committee. "They want to be Thomas Jefferson on Monday, Wednesday and Friday, and Alexander Hamilton on Tuesday, Thursday and Saturday."
In fact, the congressional push to dictate state policies has been a bipartisan effort.
It is mostly Republicans pushing to override states on e-signatures, late-term abortion, assisted suicide and legislation to protect private property owners from public "takings." Democrats have been the main advocates of federal child care standards, federal privacy protections and a federal initiative to hire 100,000 new teachers. The parties cooperated on one preemptive bill insulating businesses from lawsuits over the Y2K computer bug, and another superseding state and local laws deemed hostile to religious groups.
Time and time again, members of both parties who have argued for devolution in principle when defending state laws they like have turned against state prerogatives they don't. Sen. Ron Wyden (D-Ore.) has been a staunch defender of Oregon's assisted suicide law; at the same time, he is leading the effort to stop states from taxing the Internet. Rep. David M. McIntosh (R-Ind.), a candidate for governor, sponsored the most important pending states'-rights bill, an effort to force Congress to acknowledge what it's doing any time it preempts a state law. But he has supported measures making it more difficult for states to take action limiting the value of private property.
On the other hand, Voinovich has established himself in his first year in Washington as the city's most fervent devolutionary. He led the fight to let states keep their tobacco money, was the only senator to vote against the juvenile justice bill on pure federalism grounds, and even got teary after a bill passed giving states more flexibility to spend federal education dollars. But he says most of his colleagues simply can't resist the temptation to exert power at the federal level.
"Everyone gets here and wants to `do something,' " Voinovich said. "They look around and say, `Wow! This is wonderful. I'm going to get things done.' It never occurs to them that sometimes we shouldn't do anything at all. Even the quote-unquote conservatives."
The primary vehicle designed to reverse all these trends is the Federalism Accountability Act, a bill filed by McIntosh in the House and Sen. Fred D. Thompson (R-Tenn.) in the Senate that would require Congress and administration officials to come clean whenever their actions would preempt state powers. The idea is that if politicians were forced to acknowledge what they were doing any time they trampled on state prerogatives, they might not trample so often.
For now, though, the bill is going nowhere. The main stumbling block has been the U.S. Chamber of Commerce, which has argued that one-size-fits-all national laws cut costs for businesses. Labor and environmental groups have opposed the bill as well, arguing that it would eviscerate consumer protections in business-friendly states.
"The special interest lobbies don't want to deal with 50 states; they just want to deal with Congress," said Utah Gov. Mike Leavitt (R), chairman of the National Governors' Association. "Devolution is the mantra now, but it's not what's happening in the fine print."