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States vs. feds: the growing schism between states and the federal government makes for a difficult and deteriorating relationship, with a few exceptions.

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The challenges facing state officials as they deal with the federal government are enough to make them nostalgic for the good old days of unfunded mandates and preemption. As pernicious as these phenomena were and still are--they were easily explained, and their effects on state flexibility and innovation were easily understood.

Cracks in the Federal System

The current tensions in the federal system are more nuanced and resistant to solution than they were only a decade or so ago. And the prospects for any long-term improvement in the states' relations with the federal government are downright discouraging. That's the gloomy assessment offered by all four federalism experts interviewed for this article.

The bright spot in their analyses is that states continue to be policy activists and innovators, sometimes even in defiance of federal law, demonstrating the resilience and vitality of the federal system, even in a time of great tension.

Five recent developments present significant challenges for state officials in achieving a healthy partnership with the national government.

1. Reauthorization of Federal Laws

Historically, most federal laws have come with an expiration date. In order for them to remain in place, they must receive congressional reauthorization, or at least be amended or extended for the short term. The reauthorization process, however, has been one of the casualties of the near-paralysis that characterizes much of the activity in Washington, D.C., these days. In fact, some major laws have never been reauthorized and others haven't been for decades. The Clean Air Act was last amended in 1990, the Safe Drinking Water Act in 1996. The Temporary Assistance for Needy Families was reauthorized in 2005, but has existed on a series of short-term extensions ever since. Both the Workforce Investment Act of 1998 and the No Child Left Behind education act of 2001, have never been reauthorized. This failure to act places uncertainty on the laws' futures that not only inhibits states' abilities to plan ahead and implement the laws, but also to improve them.

George Mason University's Paul Posner notes that when the reauthorization process works, states' experiences with implementing the law can provide important insight into how to improve it. But the current breakdown in the reauthorization process, says Michael Bird, former senior federal affairs counsel for NCSL, prevents state legislators from working with Congress to fix problems in the laws.

John Kincaid from Lafayette College and Florida State's Carol Weissert point out a sobering reality: Even when Congress does reauthorize a law, it seldom listens to state officials. "Years ago," Weissert says, "there was much more deference to state legislators and governors." She points to a study by political scientist Kevin Esterling that showed during Medicaid hearings in the U.S. House, members of Congress were more likely to favor the testimony of industry, trade associations and think tanks over that of state officials.

2. Waiver Authority

States may apply for waivers from certain provisions in many federal laws. One theory behind the concept is that it saves Congress from writing even more detail into legislation, and it allows the executive branch to accommodate differences among states. Waivers can also be used to encourage a specific state action. In fact, waivers have become a prominent focal point in state-federal relations. President George W. Bush and his Education Department, for example, used waivers to encourage states to comply with the No Child Left Behind law. Likewise, waivers have been an essential tool in negotiations between the Obama administration and state governors over the Affordable Care Act.

Posner views the increased use of waivers as a presidential reaction to congressional inaction. By making accommodations and improvements to laws on a state-by-state basis, "waivers have become the functional equivalent of reauthorizations," he says. The word Weissert likes to use to describe today's waiver-filled federal system is "bargaining."

"Things are negotiable," she says. And although waivers provide legislators and governors with a certain degree of flexibility, Weissert questions whether there is enough transparency in the granting of waivers and whether states are treated equitably.

3. Competitive Grants

First used by the national government as long ago as the mid-1960s, competitive grants are awarded to states at the discretion of federal agencies based on criteria or standards established by law or regulation. The Obama administration has been particularly enamored with them. The president used competitive grants in the American Recovery and Reinvestment Act for high-speed rail and other transportation projects as well as broadband deployment. And the president's most recent budget offering includes several new competitive grants, including ones to encourage energy efficiency and preschool improvements.

But by almost any measure, Obama's Race to the Top initiative, also included in the economic stimulus law approved in 2009, has been the most successful ever at achieving dramatic state policy changes. What has set Race to the Top apart is the huge pot of money--$4.35 billion available for the grants and the way it has brought about reforms in state education laws, among both the states that won and those that didn't.

Posner believes competitive grants represent "a resurgence of creative federalism" that began in the Lyndon Johnson years. His argument is that they "drive a lot of change," while accommodating differences among the states. Besides, he says, they're voluntary, states don't have to participate.

Critics argue there's something wrong with this picture. They say the motivation behind competitive grants is upside down. Traditionally, states have served as the "laboratories of democracy," experimenting with solutions to difficult challenges, refining and shaping them to differing circumstances, state by state. Often this process results in action by the federal government, argues Posner, but not until a significant number of states have acted--not until the issue is "finally ripe for solution" at the national Level, he says.

Competitive grants represent top-down--and often coercive-federalism, which Kincaid argues has been the dominant feature of state-federal relations since the late 1960s. Although states may not have to apply for the grants, Kincaid says the amount of money involved, especially

when states are so strapped for funds, makes them very hard to resist.

4. Institutional Connections

Michael Bird's Washington career began in the latter half of Ronald Reagan's presidency, when the Advisory Commission on Intergovernmental Relations (ACIR) was a vital forum for discussion and research among state, federal and local officials. At that time, the U.S. House and Senate had full, standing committees devoted to intergovernmental issues. The White House intergovernmental staffs had clout in administration policy deliberations. Several federal agencies, including the Census Bureau and the Office of Management and Budget, produced invaluable information and analysis on state and federal fiscal matters.

When Bird retired in May, the advisory commission had long since been dismantled, the congressional committees were gone, the role of White House intergovernmental staff had been diminished and intergovernmental fiscal reports were no longer produced.

For Bird, the demise of these forums is symbolic of the cracks in the federal system. Cracks that affect how state, local and federal officials communicate and work with one another to craft solutions to common problems.

Weissert, whose early career included seven years at ACIR, maintains that the disappearance of these kinds of institutions is "one of the really bad things" that has happened over the past several years and particularly laments the loss of intergovernmental research.

"ACIR was created and was successful at a unique time, when political parties were not so polarized and could work together in settings like that," says Kincaid, who directed the commission for eight years. He says he has no expectation that it or any of these forums will ever be revived.

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5. A Political Disconnect

About half the members of Congress once served in their state legislatures, making them obvious potential state cheerleaders. For more than three decades, NCSL staff have cultivated relationships with these lawmakers in their work for states. They have sought them out to sponsor key amendments. They have encouraged state legislators to bring these former colleagues back to the state capitol to remind them of their roots. They have heard them say, "You don't have to worry about me on this. I came from a legislature, you know."

That connection, though still a factor, may be disintegrating. Weissert has studied the bills that former state legislators introduce in Congress and has concluded that while federal lawmakers may recognize the role of states in the legislation they introduce, the bills are not necessarily "state-friendly." Similarly, Posner's analysis of votes on unfunded mandates showed that having served in state or local office had no effect on how members voted.

Bird recalls a prime example of that. The first vote cast by a former NCSL president was against an NCSL policy position. Posner relates an analogous story involving a former chairman of the National Governors Association. "Federalism isn't animating discussions any longer," Posner argues. "Even states' champions aren't necessarily their champions anymore."

How has this happened? Weissert and Posner point to partisanship and private interests. "There is just so much more partisanship at both levels," Weissert says. That, along with "private interests," have eclipsed the states' role, says Posner.

Kincaid argues that so much of this has to do with elections. The way congressional districts are drawn, the kind of candidates who win primary elections and the need to raise large amounts of money all work to devalue state experience and interests as influences over congressional behavior. It is also very difficult for polarized state officials to come to consensus on federal matters. Posner, for example, points out that the National Governors Association, once a power in negotiations over almost all domestic policy matters, has had to sit out the work on such major recent legislation as health care, immigration reform and No Child Left Behind, because its members have been unable to find common ground on the issues.

The Bright Spots

Despite these cracks in the federal system, experts believe state officials are, and will continue to be, effective players in shaping public policy. Here are three reasons why.

States have great influence in implementing federal laws.

A popular belief is that states have become nothing more than branch managers for the federal government, implying that they do little more than administer laws passed by Congress. Not so, Weissert says. It's when state and federal officials get down to the business of making federal laws work that they have their greatest influence, she says.

Kincaid concurs. He believes the level of cooperation required at the implementation stage, when state and federal officials must work together, is a positive contrast from the coercive way the federal government usually treats the states.

Posner and Bird say the partnership works well when the federal government needs the states--a phenomenon Posner describes as an "episodic attachment to federalism" and Bird characterizes as "convenient federalism." Posner notes, for example, that the federal government had to rely on the states when it did not have sufficient resources to administer the 2009 recovery act, thereby giving states leverage over how many of the law's many elements to carry out.

Although states are weaker than they once were in shaping legislation as it moves through Congress, Posner argues they have plenty of influence through the back-door--through the waiver process and other state-by-state negotiations--and their influence is greatest during the early stages of implementing a new law. Weissert points to the separate deals that governors are making over Medicaid expansions as part of the health reform act as a prime example of this back-door influence.

States are as innovative as ever.

A willingness to tackle tough issues is the stuff of New York Times headlines: "Connecticut Deal on Gun Control May Be Nation's Most Sweeping." "Arkansas Adopts Restrictive Abortion Law." "States Shifting Aid for Schools to the Families." Gun control, abortion, charter schools, immigration, elections, climate change and marijuana are among the nation's most intransigent and controversial issues. Yet, state legislatures and governors take them on session after session. Posner asserts "state policymaking is as fertile as ever."

Many of the areas in states' current policy activism are "morality issues" the federal government finds almost impossible to handle, Weissert says. Current state action has been facilitated by the fact that, in an unprecedented number of states, one party controls both the legislature and the governorship, making controversial issues easier to resolve.

Sometimes states take the ball and go home.

State legislators are finding leverage, too, by refusing to abide by federal directives. Passage of the REAL ID Act in 2005 provoked large scale "civil disobedience" among state legislators and governors. The result? Only 19 states have been deemed in compliance with the law. When states refuse to comply with REAL ID, carve out exceptions to No Child Left Behind, reject high speed rail funds or refuse to expand Medicaid, Posner says they are demonstrating a "resistance impulse."

Other state legislatures are engaging in "de facto nullification," Kincaid believes, by passing state laws in defiance of federal law. Nullification is a legal theory that says state lawmakers have the right to invalidate any federal law they view as unconstitutional. In some areas, such as restricting abortions and legalizing marijuana, Kincaid says states are nullifying federal law, state by state.

Systemic Challenges

The resiliency and vitality that states have demonstrated in the federal system for more than two centuries are undergoing an especially critical test. In the recent past, when unfunded mandates and preemption placed strains on the system, state legislators looked for solutions in legislation--the Unfunded Mandate Reform Act--and in presidential directive--the Federalism Executive Order.

The causes of the current tensions, experts agree, are systemic: namely, extreme partisanship and polarization and the federal government's structural fiscal woes. These challenges are not susceptible to legislative or regulatory fixes.

The cracks in the federal system, in other words, are deep and may be widening for quite some time.

Carl Tubbesing, a frequent contributor to State Legislatures throughout his 35-year career with NCSL, continues writing in retirement. He joined NCSL shortly after its formation in 1975 and served 11 years in its Denver office before becoming director of NCSL's Washington, D,C., office where he managed state-federal activities. He was deputy executive director of NCSL when he retired in 2010. Tubbesing holds a Ph.D. in political science from Washington University in St. Louis and now lives in Maine, where he serves on several volunteer boards and enjoys the "prototypical retirement activities" of gardening, golf and bird watching.

THE EXPERTS

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John Kincaid is director of the Meyner Center for the Study of State and Local Government and professor of government and public service at Lafayette College in Pennsylvania. Kincaid served on the staff of the U.S. Advisory Commission on Intergovernmental Relations for eight years and was the executive director from 1988 to 1994. He has written numerous books and articles on federalism and federal systems, and was the editor of Publius: The Journal of Federalism for 25 years.

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Paul Posner is director of the public administration program at George Mason University and a former president Of the American Society of Public Administration. He led the budget and public finance work at the U.S. Government Accountability Office for 14 years, wrote "The Politics of Unfunded Mandates" and many articles on public budgeting and federalism, and has worked with senior budget leaders of advanced nations through the Organization for Economic Cooperation and Development.

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Carol Weissert is professor Of political science and director of the LeRoy Collins Institute for Public Policy at Florida State University and is the editor of Publius. Her early career included three years at the National Legislative Conference (one of the organizations that merged to form NCSL) and positions at the U.S. Advisory Commission on Intergovernmental Relations and the National Governors Association. She has been a professor of political science and director of the Institute for Public Policy and Social Research at Michigan State University and has written many books and articles on federalism and public policy, particularly health policy.

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Michael Bird began his service to state legislatures in 1970 as an intern in the Illinois General Assembly, followed by a stint with the Program for Legislative Improvement, working on projects to modernize the Colorado and Arizona legislatures. After working on a similar project with the U.S. Virgin Islands Legislature, he directed the fiscal staff of the Oklahoma Senate. He joined NCSL in 1985 as a member of the state-federal relations team in Washington, D.C. As NCSL's senior federal affairs counsel. Bird coordinated lobbying activities and was the liaison to congressional leadership offices and the White House. Bird retired from NCSL in May 2013.
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Title Annotation:FEDERALISM: 07-08.2013
Author:Tubbesing, Carl
Publication:State Legislatures
Geographic Code:1USA
Date:Jul 1, 2013
Words:2778
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