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Anti-mandate movement now needs focus - and kid gloves.

After years of effort, local governments have finally been successful in elevating the importance and visibility of the unfunded mandates issue.

Thanks to the efforts of state municipal leagues, individual cities across the nation, and our Washington-based associations, a large and growing number of taxpayers now understand the deleterious effects of unfunded mandates. Even the mass media, for so long reluctant to tackle the issue, have begun to report on the costs and inefficiencies of federal regulations that force cities to squander precious resources on seemingly popular but cost-ineffective programs.

Indeed, our anti-mandate efforts have produced nothing short of a movement.

But the momentum of recent months is fraught with danger. Unless we go forward very carefully, we will surely snatch defeat from the jaws of victory. I am persuaded that we can win the mandates issue in Washington only if we can win it in the court of public opinion. We can make progress against mandates if we can harness a grass roots effort on our behalf and avoid generating a grass roots effort to oppose us.

That is why I believe that now it's important to focus our frustration and to recognize that all major changes in policy - and derailing the mandate train will be a major policy change - come slowly and incrementally.

Now that we have drawn a great deal of attention to unfunded mandates, I submit we must focus our efforts in the following ways.

1. Recognize that not all mandates are born equal. While we can passionately argue that all mandates are bad and, in fact, represent a significant flaw in modern federalism, it is clear that we simply cannot oppose all mandates. It is critical to draw a distinction between: (a) a broad-based requirement applied to a large number of entities, both public and private, of which cities represent one part; and (b) an unfunded mandate applied explicitly or by definition primarily or exclusively to cities.

In the first category are the Americans With Disabilities Act, the Family and Medical Leave Act, civil rights legislation, and others. I would argue that NLC should not oppose such policies. These laws and regulations affect simply because we are employers. If other employers, including our private sector friends, won't stand shoulder-to-shoulder with us in opposing these requirements, why should cities stand alone? If there is to be an organized effort to resist these kinds of regulations, it must be a broad-based coalition which may include cities, if the NLC board should decide to participate, but it cannot be a city-driven effort. To oppose these widely applicable mandates will surely result in the loss of public and media support for our anti-mandates movement and may very well produce a backlash against our efforts. The next time a reporter asks you to identify some bad mandates, mention the ADA and the Family and Medical Leave Act and watch the reporter's willingness to tell our story disappear.

We are on much safer ground with regard to the second category. This category includes the major provisions of the Clean Water Act (particularly the stormwater provisions), the Subtitle D landfill requirements, the Safe Drinking Water Act, the public sector-related provisions of the Fair Labor Standards Act, attempts to impose federal taxes on local governments, and others. These mandates are applied explicitly to cities or to traditional governmental functions normally undertaken by cities.

These are the truly unfair mandates; these are the genuine intergovernmental travesties. They have the effect of allocating scarce local funds without local input or approval, and they apply primarily - sometimes exclusively - to cities. These mandates richly deserve our fervent opposition.

2. Concede the point. Even when we resolve to oppose an unfunded mandate of the second type, we must concede the importance of the rationale which is usually the mandate's underpinning. We cannot, for excample, appear to oppose safe drinking water, but we can and must oppose the way in which the Safe Drinking Water Act was slapped together with virtually no concern for cost or cost-effectiveness and no city input. We cannot oppose clean water, but we can and must oppose a federally mandated stormwater program which, unless changed, will cost hundreds of billions of dollars - dollars badly needed for education and law enforcement - for an ill-defined, marginal improvement in water quality. Again, with little or no city input.

In short, we must concede the point, but demand common sense. We must commit to - and insist upon - a place at the table when well- intentioned programs are put together. We cannot oppose a clean environment, but we can expect that the costs and benefits of any program be scrutinized, and that goals, schedules, and funding mechanisms be agreed-to in advance.

3. Take what we can get - then keep working. The time is ripe to press for needed changes. I believe the Clinton-Gore administration can and will help us, precisely because the administration campaigned as environmental stalwarts and will, therefore, be trusted by the environmental community to address the issue of unfunded environmental mandates.

But every silver lining has a cloud. We won't win every round, change will come marginally, and decades of mandate-creation won't be reversed quickly. In fact, it is unlikely that any broad, "no more mandates" legislation will ever get more than a perfunctory hearing on Capitol Hill before it is relegated to the cutting room floor. (This kind of legislation, however, though unlikely to pass, does raise the visibility of the mandate issue and is highly beneficial for that reason alone.)

What can we hope for? First, we can hope that the Congress and the Administration will come to see us as something more than the lowest members of the mandate food chain and the revenue-raisers of last resort. We can also expect that at long last the federal government will understand that we must balance our budgets and cannot continue to pay for programs that are nice to have" except when the bill comes due. Most importantly, perhaps, we can hope to inject some common sense in current mandates as they come up for renewal and thereby establish a model of local government input for the future.

I, like all of you, will continue to hope for great things. But we must take what we can get when we can get it, do what it takes to establish ourselves as legitimate players at the table, and live to fight another day. And always we must focus, focus, focus.
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Author:Sturzl, Frank J.
Publication:Nation's Cities Weekly
Date:Sep 27, 1993
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