Devolution: Congress Doesn't 'Walk the Walk'.

Congress supports state power--in theory--but members remain infected with the irresistible impulse to substitute their own judgement for that of the states.

The usual flood of legislative business cascaded through Capitol Hill in October. The Senate passed a ban on partial-birth abortions. Not to be outdone, the House passed a ban on assisted suicide.

Behind the scenes, House-Senate conference committees fought over a major overhaul of the nation's juvenile justice system, and an equally major overhaul of the nation's managed care system. In committees, members battled over one bill that would make electronic signatures valid nationwide, another that would gut so-called "homestead exemptions" in bankruptcy cases and yet another that would deregulate the nation's electrical power grid.

As usual, Congress addressed matters of great import, finally revamping the sweeping Depression era financial services laws that separate banks from insurance companies--and, not-so-great import, as the House passed a "foot fetish" bill making it a federal crime to sell a bizarre new genre of underground videotapes that feature animals being tortured with stiletto heels.

A COUNTERREVOLUTION 

But there was one thing that the entire collection of initiatives had in common: They all would expand federal power at the expense of states.

Members of Congress still talk a lot about defending states' rights, about erasing Washington prerogatives, about a "devolution of power" to their beloved "laboratories of democracy." But when it comes to actual legislation, a quiet counterdevolution is well under way, as Congress continues to substitute its own judgment for that of the states. Lawmakers of both parties insist that they support state power in theory, but they can't seem to help trying to interfere when they don't like the way states are using it.

The assisted suicide ban, for example, was a direct effort to overturn Oregon's controversial Death With Dignity law. The HMO restrictions in the so-called Patients' Bill of Rights could preempt health care statutes in dozens of states, and a Republican add-on to the bill could create "alternative health plans" exempt from state regulations. The juvenile justice bill, best known for its gun control measures, would also force states to prosecute more adolescents as adults and would federalize a variety of crimes extending well beyond graphic footwear videos. The financial services overhaul includes language that critics believe will undermine the power of state insurance regulators, gut some state consumer protections, federalize many financial records and overturn a North Carolina law restricting predatory lending. The electricity bill could supersede at least 26 state deregulation plans; a group called Citizens for State Power has responded with ads featuring a federal electricity regulator in a sheriff's h at pointing a gun at consumers.

The old bugaboo for states' rights advocates was "unfunded mandates," the penchant of Congress to pass laws telling states what to do without giving them the money to do it. That went away, for the most part, in 1995 when President Clinton signed legislation banning the practice. But now state legislators and governors are up in arms about "preemption," the latest Washington fad of passing federal laws that supersede state laws. It's an incredibly powerful instinct; at one point in October, an $82.6 billion budget bill designed to fund most of the nation's domestic spending programs was held up over a Republican effort to ban an obscure District of Columbia needle exchange program.

"Everybody up here is constantly saying we should send power out of Washington, but we hardly ever do," complained Ohio Senator George V. Voinovich, a former two-term governor who spent 32 years as an official 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."

TENSION HAS ALWAYS BEEN THERE

The tensions between federal and state power in America date back to the early debates over the Constitution. Federalists like Alexander Hamilton argued for a strong and centralized national government while antiFederalists like Thomas Jefferson fought to preserve state prerogatives. The history of America has seen a steady and nearly unbroken expansion of federal power, through the Civil War, the Progressive Era, the New Deal, the world wars, the Great Society. 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, monolithic federal government off the backs of innovative, effective states.

Republicans have been especially vocal about devolution, featuring unfunded mandates and other state prerogatives in their Contract With America in 1994. Former Senate Majority Leader Bob Dole used to carry around a wallet copy of the 10th Amendment, which reserves all powers not constitutionally specified as federal prerogatives to the states or to the people. But Democrats--including President Clinton, a former governor--have been supportive as well. And the Supreme Court under Chief Justice William Rehnquist has rediscovered the 10th Amendment in recent years, striking down a host of federal laws on the ground that they intrude on state powers.

A FEW VICTORIES

To be sure, the nation's governors and state legislatures have enjoyed a few major victories on Capitol Hill. There was the unfunded mandates law in 1995. There was the historic welfare reform law of 1996 that allowed states to design their own antipoverty programs--although it also included new and rarely publicized mandates forcing states to create elaborate child support bureaucracies.

There were successful efforts to give states more leeway to design their own Medicaid programs and to free states from particularly onerous federal water quality regulations. This year, Congress even barred federal officials from raiding the $246 billion settlement that states won from tobacco companies.

Still, states' rights advocates say that in recent years, the scourge of unfunded mandates has been replaced by the straightjacket of direct preemption. Sometimes the federal intrusion is blatant, as in the congressional move overturning a referendum by District of Columbia voters that legalized medical marijuana, or the efforts to extend a three-year moratorium that prohibits states from taxing the Internet. Sometimes they are more subtle, such as an obscure provision Alabama Senator Richard C. Shelby tucked into a transportation bill directing states to take steps to protect the privacy of driver's license records.

This is not to say that preemption never makes sense. With the stunning advance of technology and the rapid rise of the global economy, even devolution crusaders like Utah Governor Michael Leavitt, the chairman of the National Governors' Association, concede that Washington's efforts to impose uniform laws for complex industries such as banking and telecommunications may be justifiable. State regulators are often ill-equipped to deal with international conglomerates, and patchworks of conflicting state laws can boost costs for businesses. When it comes to crafting these new regulatory systems, Leavitt just wants to make sure states have a seat at the table; his new mantra is "federal coordination, local control."

BUTTING INTO EVERYTHING

The real problem, according to Michael Bird, lobbyist for the National Conference of State Legislatures, is not that the feds are butting into some things; it's that they're 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 how the states do something, they step in and do it their way. It's so hypocritical."

Perhaps the best example from October was the debate in the House Judiciary Committee over a sweeping Republican product liability bill. The bill included language preempting state liability laws that favor consumer plaintiffs, but preserving state liability laws that favor business defendants. That seemed a bit inconsistent. So the committee's Democrats proposed a more logical, though quintessentially Washington, solution: an amendment that would have preempted state laws no matter who they favored. And chairman Henry J. Hyde of Illinois actually crossed party lines to support it, 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 Massachusetts Representative Barney Frank, who has made a point of deflating GOP devolution hypocrisy during the debates over tort reform, assisted suicide and the financial services bill. "They want to be Thomas Jefferson on Monday, Wednesday and Friday, and Alexander Hamilton on Tuesday, Thursday and Saturday."

IT'S DEMOCRATS AND REPUBLICANS ALIKE

In fact, though, the congressional preemption rush has been a bipartisan effort.

It is mostly Republicans pushing to override states on e-signatures, late-term abortions, assisted suicide and legislation that would 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 the so-called Religious Freedom Restoration Act superseding state and local laws deemed hostile to religious institutions.

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. Oregon Senator Ron Wyden 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. Representative David M. McIntosh of Indiana, a candidate for governor in 2000, sponsored the most important pending states' rights bill, an effort to force Congress and regulators to acknowledge what they're doing any time they preempt state laws. But he has supported the assisted suicide ban, the product liability reforms and the anti-takings legislation.

On the other hand, there are a few true believers like Voinovich, who has established himself in his first year in Washington as the city's most fervent devolutionary. He led the fight to help states keep their tobacco money. He and Tennessee Senator Fred Thompson were the only senators to vote against the juvenile justice bill on pure federalism grounds. He actually got teary after last year's passage of the "ed-flex" bill, which gave states and communities 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, gesturing at the fancy chandeliers in the Senate dining room. "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."

GETTING CONGRESS TO ADMIT IT

The primary vehicle designed to reverse all these trends is the Federalism Accountability Act, a bill filed by McIntosh in the House and Thompson 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, oddly enough, 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. But Capitol Hill insiders suspect there is a hidden reason why the leading lobbies of the right and the left have joined forces to preserve federal power: for special interests, Congress is a convenient battle-ground. They would rather fight one fight than 51.

"The special interest lobbies don't want to deal with 50 states; they just want to deal with Congress," Leavitt said. "Devolution is the mantra now, but it's not what's happening in the fine print."

Michael Grunwald is a writer with The Washington Post. A version of this story appeared first in the Post last fall.