The state of U.S. federalism, 2000-2001: Continuity in crisis.
The opening of the new millennium was electrifying and polarizing. For the first time since 1888, a candidate won the presidency through the electoral college while losing the national popular vote, thus giving revived meaning to the United States as a federal democracy rather than simple national democracy. In 2000's most publicized story, the country and the world watched with astonishment as local officials in the world's presumably leading democracy eyeballed hanging, dimpled, and pregnant chads on punch-card ballots in a controversial recount of votes in several Florida counties. The recount was then terminated unceremoniously by the U.S. Supreme Court. The Court upheld the vote count that gave Republican George W. Bush victory in Florida and, thereby, in the electoral college over the Democratic former vice president, Al Gore. The Court majority, known for its state-friendly federalism rulings during the 1990s, was rebuked by critics for hypocrisy, among other things, for overturning a recount ruling of the Florida Supreme Court.
In his otherwise gracious concession speech, Gore congratulated Bush--not for being elected, but for "becoming" the 43rd president. (1) Hillary Clinton, the first First Lady to win a U.S. Senate seat, immediately proposed abolition of the electoral college. Popular singer Barbra Streisand wrote a stinging essay on Democrats, "Nice Guys Finish Last," in which she called the Court's ruling the "Supreme Coup." (2) But Streisand had to write her essay in between rolling blackouts and brownouts produced by California's ill-fated experiment in electricity deregulation, which may also have dimmed the presidential aspirations of California's Democratic Governor Gray Davis, soon dubbed "the Prince of Darkness." California, which voted for Gore, appealed for federal help. The new president told California to solve its own electricity fiasco. Thus, 2000-2001 was either the best or the worst of years for American federalism, depending on one's point of view and ability to see in the dark. Either way, the new millennium m arked turbulent times for the world's oldest federal democracy.
THE NOVEMBER-DECEMBER 2000 PRESIDENTIAL ELECTION: A CULTURAL DIVIDE
The 2000 election was extraordinary, even unique. Although Gore received the most popular votes nationwide (50,992,335 to 50,455,156 for Bush, with another 2,882,897 won by Ralph Nader), and only 51 percent of the voting age population turned out--up from 49 percent in 1996, but down from 63 percent in 1960--the presidency hinged on the popular vote in Florida, which Bush finally won by 537 votes (.009 percent of the 5.96-million Florida vote). Each candidate needed Florida's 25 electoral votes in order to achieve the 270 electoral votes required to enter the White House through the 538-member electoral college. Bush secured 271 electoral votes; Gore received 266--one short because a feckless elector in Washington, D.C., abstained rather than cast her ballot for Gore, despite Gore's 85 percent to 9 percent victory in the District of Columbia.
Most of the post-election recount contest occurred in local, state, and federal courts because the matters at stake turned on interpretations of Florida law and because party control of the state's various institutions advantaged or disadvantaged each candidate. While both candidates appealed to the court of public opinion, Gore sought support from Florida's judiciary, especially the state's liberal supreme court, all seven members of which were appointed by Democratic governors. The Florida legislature was Republican; Florida's secretary of state was a Republican and Bush supporter; and Florida's governor, Jeb Bush, was not only a Republican but also George Bush's brother. Bush sought support from the more Republican-friendly federal courts, especially the U.S. Supreme Court, against the Democratic Florida Supreme Court and Democratic ballot-counters in the four Democratic counties in which Gore requested recounts. Despite a vigorous debate about a decline of American political parties since the 1960s, (3) B ush and Gore recognized that partisan control of crucial government institutions in the federal system would affect their fortunes in this close election. (4)
The contest ended two hours before midnight on 12 December 2000 when a sharply divided U.S. Supreme Court ruled 54 to (1) reverse a ruling by Florida's supreme court on the ground that the manual recount ordered by the state's high court violated the equal protection and due process clauses of the Fourteenth Amendment to the U.S. Constitution and (2) halt the recount because a constitutionally proper recount could not be completed by the end of 12 December, the date set by Florida law for certifying its presidential electors and a date, which the Florida Supreme Court acknowledged, had been set by Florida's legislature in order to obtain the "safe harbor" benefits of the federal Determination of Controversy as to the Appointment of Electors Act, which has its roots in the Electoral Count Act of 1887. The act stipulates that a state's certification of its electors by midnight 12 December will not be challenged by Congress.
The five justices--Chief Justice William Rehnquist and associate justices Anthony Kennedy, Sandra Day O'Connor, Antonin Scalia, and Clarence Thomas--who voted to halt the recount, and thus give Bush the election, are viewed as conservatives. They were nominated for the Court by Republican Presidents Richard Nixon, Ronald Reagan, and George Bush (the father). Of the four dissenters, John Paul Stevens had been nominated by Republican President Gerald Ford; David Souter, by Bush; and Stephen Breyer and Ruth Bader Ginsburg, by Bill Clinton. Supporters of Gore, therefore, criticized the Court's ruling as, among other things, brazenly partisan, even though 5-4 rulings, often consisting of the same five justices, have been common since the early 1990s. During the Court's 1999-2000 term, one-third of its decisions were 5-4 rulings.
In Bush v. Gore, (5) however, the Court did rule 7-2 that the manual recount ordered by the Florida Supreme Court violated the federal Constitution's equal protection guarantee because the state high court had failed to ensure equal treatment of all ballots by not establishing reasonably uniform and objective standards for counting disputed ballots and for judicial review of results, and by not recounting ballots challenged in Broward and MiamiDade counties. Breyer and Souter joined the majority in this part of the decision, but dissented from the majority by arguing that the Court should have remanded the case to the Florida Supreme Court to determine if it could order a constitutionally proper recount that could be completed by a second possible deadline, 18 December, when federal law requires the final reporting of electoral votes. Whether a manual recount could have been completed in six days is unknown; however, if the U.S. Supreme Court had remanded the case, the onus of possibly conceding the election to Bush might have fallen on Florida's Democratic supreme court. Instead, the U.S. Supreme Court exposed itself to massive criticism by, in effect, giving the White House to Bush.
The Court, which has otherwise engaged in a state-friendly federalism jurisprudence, was also accused of hypocrisy for taking the unusual step of overturning a state supreme court's interpretation of its own state's law. In her dissent, Justice Ginsburg opined, "I would have thought the 'cautious approach' we counsel when federal courts address matters of state law...and our commitment to 'build[ing] co-operative judicial federalism'...demanded greater restraint." (6) Although the Court sought to limit the reach of its ruling by saying: "Our consideration is limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities," (7) the ruling opens the door to future equal-protection challenges of state and local election practices.
Bush thus became the first candidate to lose the popular vote but win the electoral-college vote since Benjamin Harrison (Republican) defeated incumbent president, Grover Cleveland, in the same manner in 1888--though Democrat Cleveland later beat Harrison in both the popular and electoral votes in 1892. Bush's 271-266 electoral-vote victory was also the closest since the Hayes-Tilden 185-184 election of 1876, an election that remained unresolved until 2 March 1877 because, initially, neither candidate won a majority of electoral votes. Electoral votes were challenged in four states, including Florida. Congress appointed a 15-member Electoral Commission (which included five U.S. Supreme Court justices) that decided the election for Rutherford B. Hayes (Republican), even though Samuel J. Tilden had won more popular votes. Both candidates were incumbent governors--Hayes of New York and Tilden of Ohio; 1876 was the first time the major parties had nominated incumbent governors for president.
Bush also became the second man to follow his father into the White House. The first was John Quincy Adams (National-Republican), who was inaugurated in 1825 after the 1824 election, in which neither Adams nor Andrew Jackson received a majority of electoral votes. Pursuant to the U.S. Constitution, the election was decided by the U.S. House of Representatives, which, through an allegedly "corrupt bargain" between Adams and Henry Clay, chose Adams even though Jackson had won more popular and electoral votes. Jackson, however, defeated Adams in both the popular and electoral votes in 1828.
The close 2000 election also produced an evenly divided Democratic-Republican U.S. Senate, the first since 1880, although this ended in June 2001 when a Republican senator from Vermont, James M. Jeffords, abandoned the Republican party to become an independent and align with the Democrats, thus giving the Democrats 51-49 control of the Senate. Republicans, however, maintained their U.S. House majority for a fourth consecutive election, a feat they last achieved in the 1920s. Gore's vice-presidential running mate, U.S. Senator Joseph I. Lieberman, was the first Jew and first non-Christian to run on a major-party presidential ticket. Meanwhile, by winning election to the U.S. Senate from New York, Hillary Rodham Clinton became the first First Lady to run for Congress. Not new in 2000, though, was Gore's joining the ranks of vice presidents defeated for election to the presidency. Until George Bush (the father) was elected in 1988, no incumbent vice-president had won the presidency since Martin van Buren did so in 1836.
The recount battle in Florida, however, reflected not only the virtually even division of the electorate nationwide, but also the nationalization and polarization of presidential politics, especially among elites, for whom the 2000 election was a high-stakes contest, in part because the composition of the U.S. Supreme Court was at stake too. The Court has had no vacancy since 1994, the longest no-vacancy period since 1870. Given the advanced age of many of the justices, Bush will likely nominate one or more justices. Republicans wanted to capture the presidency and retain control of the U.S. Senate, which confirms or rejects nominees, in order to preserve and possibly increase the Court's five-member conservative majority. Democrats wanted victory in order to increase the liberal four-member minority to a majority. Also at stake in 2000 was the partisan balance in some state legislatures and governors' mansions for redistricting in 2002.
Consequently, political, interest-group, and media elites portrayed the 2000 election controversy starkly. "Our political system blew up on Tuesday," wrote a nationally prominent liberal columnist on 9 November 2000. (8) Two conservatives wrote: "The presidential election of 2000 is the impeachment drama of 1998-99 all over again. And Al Gore is Bill Clinton. Only Gore's behavior is worse" because he has challenged "the mechanism by which we have selected our chief executives for more than 200 years." (9) The U.S. Supreme Court's Bush v. Gore ruling and the Florida Supreme Court's rulings were subject to scathing attacks as travesties of justice, imperialistic judicial usurpations or subversions of the democratic process, and indelible stains on judicial pretensions to disinterested justice and nonpartisan legitimacy. By the third week of the post-election controversy, some elites began to call the contest a constitutional crisis. (10) Yet surveys showed that the public responded calmly and that few Americans regarded the contest as a constitutional crisis. Despite criticism of the U.S. Supreme Court, a national poll found that 61 percent of Americans trusted the Court to make the final decision, compared to 17 percent who trusted Congress, 9 percent who trusted the Florida Supreme Court, and 7 percent who trusted the Florida legislature to do so. (11) The public's patience, however, was due not only to civic virtue but also to civic apathy, the comfort of a still strong economy, and the fact that few voters felt passionately about Gore, Bush, or their campaign issues.
Nevertheless, the election revealed growing polarization, (12) a polarization due significantly to voters' and Republicans' reactions to the nationalization of many social and cultural issues since the 1950s--such as minority civil rights, affirmative action, abortion, gay rights, gun control, school prayer, environmental protection, and capital punishment--many of which have a zero-sum character that makes political compromise difficult, most of which have passionate supporters and opponents, and nearly all of which were once only state and local concerns. (13)
Abortion, for example, was a prominent subterranean issue. Abortion supporters feared that a Bush presidency would produce enough conservative Supreme Court appointees to overturn Roe v. Wade, (14) even though Bush's record in Texas was to appoint mostly moderates to unexpired terms (because judges are elected). For example, three of his four appointees to the Texas Supreme Court upheld a girl's right to obtain an abortion without telling her parents. Since the mid-1980s, the U.S. Supreme Court has permitted some state regulation of abortion, but has not reversed Roe. "It might take three appointments to overturn Roe," noted Laurence Tribe, "but even just one could undermine it." (15) Abortion opponents desired a Bush victory that might produce a Court willing to overturn Roe or at least allow states enough regulatory authority to halt abortions without actually prohibiting them. Although the U.S. Supreme Court had just struck down, by a 5-4 vote, a Nebraska law that prohibited late-term, or partial-birth, ab ortions, many states continued to experiment with restrictive statutes. (16) In Louisiana, for instance, abortion opponents obtained legislation allowing a woman to sue--on behalf of herself and her unborn fetus--an abortion provider for up to ten years after her abortion. Hence, 65 percent of voters who support Roe v. Wade voted for Gore, while 71 percent of voters who oppose abortion chose Bush.
According to Voter News Service exit-polls, Bush drew support from the religious right (80 percent of whom voted for him). Significantly, 59 percent of those who attend religious services at least once a week voted for Bush, while 55 percent of those who attend religious services less than once a week voted for Gore.(17) White evangelical Protestants alone accounted for 40 percent of Bush's total popular vote. (18) Bush was also supported by those for whom honesty and trustworthiness in a president matters most (80 percent), opponents of stricter gun laws (74 percent), voters who value "moral leadership" from a president more than "managing government" (70 percent), Protestants (63 percent), voters who said that the country's moral condition is on "the wrong track" (62 percent), and gun owners (61 percent). Gore did well among liberals (80 percent) while Bush captured conservatives (81 percent). Gore also did well among gays and lesbians (70 percent),voters who said that environmental protection is more impor tant than economic growth (59 percent), and voters who regarded the candidates' stands on issues as being more important than their personal qualities (55 percent). The gender gap, which became evident during the Reagan years (1981-1989), remained evident in 2000. Some 54 percent of all female voters supported Gore, while 53 percent of male voters supported Bush. Bush received slightly more support, though, from married women (49 percent) and married men (58 percent), and despite his proposal to partly privatize Social Security and Medicare, Bush captured 51 percent of voters age 60 and above. The election also reflected some traditional twentieth-century demographic cleavages. Gore did well, for example, among African-Americans (90 percent), Jews (79 percent), Latinos (64 percent), unmarried women (63 percent), city residents (61 percent), members of labor-union households (59 percent), and voters with annual incomes below $30,000 (55 percent).
The 2000 election also reflected the geographic redistribution of party strengths that has been under way since the late 1960s, a redistribution effected partly by the redistribution of the nation's population. Between 1970 and 2000, the population of the Northeast increased by only 6 percent, the Midwest by 12 percent, the South by 55 percent, and the West by 76 percent. Bush, who carried 30 states, won almost all of the now mostly Republican Great Plains and Rocky Mountain states, and all of the historically Democratic southern states, including Gore's home state, Tennessee, and three other southern states won by Clinton in 1996, including Arkansas. Bush also won three (Kentucky, Missouri, and West Virginia) of the four southern border states Clinton had carried in 1996. Bush won in Ohio (a Clinton state in 1996), Indiana, New Hampshire, and Alaska as well. Gore's strengths were on the West coast (i.e., California, Oregon, and Washington, plus Hawaii), the Great Lakes upper Midwest (i.e., Illinois, Iowa, Mi chigan, Minnesota, and Wisconsin), and the Northeast (e.g., Connecticut, Massachusetts, New Jersey, New York, and Pennsylvania). The election was a contest between big states and small states as well. Bush won in 13 of the 19 smallest states; Gore carried six of the nine largest states (e.g., California and New York).
The key geographic battleground, though, is now suburbia, which houses more than half the nation's population. While, generally, Bush did well in rural areas and Gore carried central cities, Republicans lost ground and Democrats gained ground in the suburbs. Suburbs are often swing-vote areas because many voters are cross-pressured by Republican conservatism on such issues as tax cuts, smaller government, and privatization of Social Security and by Democratic liberalism on such issues as abortion, gay rights, and gun control.
In summary, the 2000 election revealed growing polarization arising significantly from the post-1950s nationalization of cultural issues previously managed by states and localities, and thereby, the substantially increased concentration of power in the federal government. At the same time, the election reflected the continuing importance of basic political features of American federalism, such as regional voting, and of structural institutions of American federalism, such as the electoral college.
VOTING REFORM: THE PARTISAN DIVIDE
The election debacle produced a chorus of calls for voting reform. The U.S. Supreme Court echoed this in Bush v. Gore:
The closeness of this election, and the multitude of legal challenges which have followed in its wake, have brought into sharp focus a common, if heretofore unnoticed, phenomenon. Nationwide statistics reveal that an estimated 2% of ballots cast do not register a vote for President for whatever reason . . . . After the current counting, it is likely legislative bodies nationwide will examine ways to improve the mechanisms and machinery for voting. (19)
More than 50 bills were introduced in Congress, and more than 1,500 bills were introduced in state legislatures. The National Association of Counties and the Association of County Recorders, Election Officials, and Clerks formed a National Commission on Election Standards and Reform. The National Association of Secretaries of State also formed a task force to formulate recommendations. Several universities established voting research projects; manufacturers of high-tech voting equipment were flooded with queries; and many citizen groups began examining reforms. By summer 2001, however, no bills had passed in Congress, and only a few states (e.g., Florida, Georgia, and Maryland) had enacted reforms. Florida enacted a $32 million reform that will, among other things, install optical scanning machines to tally ballots in all precincts by 2002. "Never again," said Florida's secretary of state, Katherine Harris, "will the punch-card ballot be used to decide elections" in the Sunshine State. (20)
The key intergovernmental question is whether the federal government will intervene substantially in state and local control of elections. Although Article I, Section 4 of the federal Constitution gives the Congress authority to regulate election processes, (21) it has, for the most part, chosen not to do so for the past 212 years. (22) Voting and elections continue to be primarily under state and local (usually county) control, although 31 states use the Federal Election Commission's 1990 Guide to Voting Systems Standards, which approves punch-card ballots, and Alaska, Delaware, Hawaii, Oklahoma, and Rhode Island have uniform statewide voting systems.
As a result of 2000, many people "agree on the need to replace old voting machines, but there is less consensus on the need for improvements 'upstream' where the real problem lies." (23) Such "upstream" issues include voter registration, registration-roll maintenance, absentee voting procedures, ballot design, vote-count standards, discretionary deadlines for election officials, statutory ambiguities, training for local election officials, and voter education. Various proposals also call for making election day a national holiday, holding elections on a weekend, permitting election-day registration, and requiring voting machines to give voters receipts.
Most state and local officials have urged Congress to enact a grant-in-aid to help states engage in a broad range of reforms, including the purchase of new voting technology. The cost of new electronic machines for the nation's 191,000 precincts would be about $4 billion. In July 2001, the bipartisan National Commission on Federal Election Reform, headed by former presidents Jimmy Carter and Gerald Ford, recommended that Congress provide funds and establish guidelines to help states improve their voting systems, but allow states to make their own decisions. The National Conference of State Legislatures' (NCSL) task force on election reform endorsed a bill of this nature that was introduced in the U.S. House in June 2001 by Representatives Karen McCarthy (D-MO) and David Dreier (RCA). The bill would provide $500 million to the states over five years. State Representative Dan Blue (D-NC), testifying before the House on behalf of NCSL, said: "We are asking [Congress] to recognize that we are the ones who have b een doing this for 200 years... . We in the states will share our expertise, but you [the Congress] should share your resources." (24) U.S. Representatives Steny H. Hoyer (D-MD) and Bob Ney (R-OH) introduced a bill to provide $550 million to the states in FY 2002. They agreed to avoid mandates, but they would require states to comply with federal standards. "'There won't be blank checks thrown down,' said Ney, 'but it won't be a mandate festival.'" (25) Senator Christopher J. Dodd (D-CT), chairman of the Senate's Rules and Administration Committee, pressed for more federal mandates. His bill, supported by all Senate Democrats, would require states to adopt "uniform and nondiscriminatory" statewide standards for voting equipment and election procedures by 2004. The U.S. General Accounting Office (GAO) estimated the cost of compliance at $3.5 billion. One problem for the states, said Ohio's secretary of state, J. Kenneth Blackwell, is that "dollars for voting systems are competing with funds for mental health services, road construction, welfare, and Medicaid." (26)
There may, however, be limits to reform and error reduction. Many reformers advocate high-tech voting, but preliminary studies by the Caltech/MIT Voting Project indicated that electronic machines, such as touch screens, perform no better than punch cards and sometimes worse than lever machines. The problem lies not so much in the equipment as in the way humans interact with technology. In Florida in 2000, 24 counties used punch cards (with an estimated error rate of 3.93 percent); 15 used an optical-scan system with ballots scan-counted in one central location (5.68 percent error rate); two used an optical system with ballots scan-counted within each precinct but with error-check equipment inoperative (2.56 percent error rate); 24 used an optical system with ballots scan-counted within each precinct and with error-check equipment operating (0.62 percent error rate); one used lever machines (0.89 percent error rate); and one used hand-counted paper ballots (6.32 percent error rate). (27) Nationwide, approxima tely 34 percent of voters used punch cards, 27 percent used optical scans, 19 percent used lever machines, 9 percent used electronic touch-screens, and the remaining 11 percent used paper ballots and other methods.
Considerable attention is being given to e-voting (i.e., Internet voting). On 11 March 2000, for their presidential primary, Arizona's Democrats conducted the nation's first binding Internet vote. It produced a record turnout of 85,970 voters compared to 12,800 in 1996. Of the total primary votes, 71,952 were cast online. There appears to be no federal statutory barrier to e-voting in federal or state elections so long as the procedure does not violate federal election-day rules, but without due care, digital democracy could be perilous because hackers might skew or steal an election. Results could also be distorted by viruses, software problems, and user confusion. Mechanisms to protect the integrity of online voting might include passwords, personal identification numbers (PINs), digital signatures, encryption, smart cards, and biometric identifiers such as fingerprint and retina scans; however, such safeguards raise privacy fears. Key issues were posed in a lawsuit filed in federal court by the Voting Int egrity Project, which contended that Arizona's e-vote violated (1) the 1965 U.s. Voting Rights Act because it diluted the votes of poor and minority citizens who have less access to computers than other citizens and (2) an 1872 federal statute requiring elections to be held on a certain day. Online voters in Arizona's primary had five days to do so; those who went to a polling place had only one day.
Senator Christopher S. Bond (R-MO) and others have argued that the National Voter Registration Act of 1993 (i.e., "motor voter") also needs repair because it "caused sloppy voter rolls" in the states and "actually facilitated organized vote fraud." (28) For example, the statute prevents states from requiring notarization or equivalent authentication of mail-in registration cards. Also, a state cannot remove a person from its registration rolls unless the individual (1) requests removal, (2) is reported dead, or (3) the U.S. Postal Service returns an election board's certified mailings to the registrant as "undeliverable" and the registrant does not vote in two successive federal elections.
In the final analysis, though, voting reform is deeply partisan. (29) Democrats have strong incentives to mandate federal rules to increase voter turnout by making voting as easy as possible, especially in light of the 2000 election in which, according to CBS News polls, Gore would have won handily if a large number of nonvoters had gone to the polls. Democrats, therefore, have presented voting reform as a fundamental civil-rights issue, which would justify substantial federal intervention into state-local elections administration. This position was strengthened, perhaps inadvertently, by the U.S. Supreme Court when it based Bush v. Gore on the equal protection clause in order to justify its intervention into Florida's election process. Republicans have strong incentives to impose procedural rules intended to protect the integrity of the voting process. They also have incentives to leave most voting decisions to the states because a majority of the governors are Republicans, and Republicans control the entir e legislature or one house of the legislature in nearly half of the states.
The results of the 2000 U.S. census added urgency to both parties' incentives because, overall, the nation's electorate might be tilting leftward toward Democrats because of the growing numbers of minority voters such as Hispanics (who increased from 22.4 million in 1990 to 35.3 million in 2000), working women (who voted for Gore over Bush by 19 percentage points), secular (non-religious) voters, and socially liberal professionals. Voting reform, therefore, was not pressed by President Bush, nor did he request funding for it in his FY 2002 budget proposal to Congress. During the spring, Democratic and Republican leaders in the U.S. House abandoned an effort to frame a bipartisan voting-reform bill because they could not agree on where to start. Neither party wants reforms that will disadvantage its electoral fortunes.
THE ELECTORAL-COLLEGE STEADY AS SHE GOES
The electoral college is one of American federalism's fundamental structural features. Yet, because it played the decisive role in 2000, immediately after election day, U.S. Senator-elect Hillary Clinton and others called for its abolition. Although polls have long shown that most Americans support abolition, and some 1,028 bills have been introduced in Congress to do so since 1789, it will not happen. Abolition would require a constitutional amendment approved by two-thirds of each house of Congress and ratified by three-fourths of the states. The weight of tradition will also impede abolition. Most small (i.e., less populated) states would oppose abolition because the system slightly magnifies their electoral voice; some large states would oppose abolition because, like Florida in 2000, they could be the deciding state in a future election and because their large numbers of electoral votes attract the lion's share of the candidates' campaign attention; and key minorities, especially African Americans, Hispa nics, Jews, and labor-unionists, generally oppose abolition. In a close election in California, for instance, a minority group constituting 1 percent of the electorate could, if its members voted solidly for one candidate, carry the state's 54 electoral votes for that candidate and thus, possibly, give him the White House. This is one reason why Bush is courting Hispanics. They are a sizable minority in several states, including two key large states: California and Texas.
Although a candidate who lost substantially in 39 states but won narrowly in the 11 largest states could win the presidency with 270 electoral votes and 30 percent of the popular vote, this has never happened. The electoral college has produced a decisive result in 49 (91 percent) of 54 presidential elections. Since popular voting for electors was widely implemented in the 1820s, the popular vote winner has also been the electoral victor in 41 (91 percent) of 45 elections.
One critic argues that the electoral college should be abolished because it is outdated and was established to appease southern white-male slaveholders who did not want to be outvoted by the more populous northern states. (30) However, slavery was not the only factor, or the most important factor, to the Constitution's framers in 1787. Furthermore, slavery was abolished after the Civil War in 1865, and southern states were under federal military occupation for 8-10 years; yet the electoral college lived on. It survives partly because it pertains to the important federal principle that it should be difficult rather than easy for a simple (50% + 1) national majority to rule the country. The electoral college is majoritarian, but not simply so. It is one of several mechanisms intended to mitigate the possibility of majority tyranny feared by James Madison. However, it is difficult to defend this federal principle today because democracy has become increasingly identified with simple majority rule and with the i dea that every person s vote should count equally nationwide. "Right now," wrote one columnist, "the Electoral College and federalism are under attack, not just from Hillary Clinton, but from democracy-worshippers in all parties." (31) At the same time, though, given that the popular vote winner has been the electoral-vote loser in only four elections from 1824 to 2000, and that two of the three electoral losers prior to Gore captured the presidency in the next election, the anti-majority-tyranny case for the electoral college seems weak.
Yet, the usual correspondence between the popular and electoral votes also weakens the abolitionist case because the electoral college rarely frustrates the majority's will. A direct popular vote could be problematic because the winner of 19 (42 percent) of the 45 presidential elections since 1824 received less than 50 percent of the popular vote. If the threshold for winning a direct popular vote were 50% + 1, expensive and possibly divisive run-offs would be needed frequently, and perhaps more so than in the past because direct election would likely bring more parties and candidates into the presidential arena. If no threshold were set, then even more candidates would enter the contests, possibly fragmenting the system, and a candidate might win the presidency with only 30 percent of the vote. Although John Quincy Adams secured the presidency with 30.5 percent of the popular vote in 1824, and Abraham Lincoln won it in 1860 with 39.8 percent of the popular vote, Adams was a weak one-term president, and Linc oln might have been a weak one-term president, too, had the civil war precipitated by his election not offered the occasion for him to demonstrate greatness. Ordinarily, the electoral college also has the symbolic effect of magnifying the popular vote winner's margin of victory. Lincoln received 59 percent of the electoral vote. On average, the winner of presidential elections from 1892 to 1996 won 53 percent of the popular vote but 76 percent of the electoral vote. (32)
The proliferation of presidential primary elections since 1968 also mitigates criticism of the electoral college because the primaries have become, in effect, pre-election elections in which many candidates can compete for their party's nomination. In 2000, U.S. Senator John McCain (AZ)) posed stiff competition for Bush for the Republican nomination, as did former U.S. Senator Bill Bradley (NJ) for Gore. A national primary or several regional primaries in March or April of presidential election years, which are advocated by many critics of today's state-by-state system, would, in effect, convert the November election into a run-off.
A 212-year-old continental federal democracy that has become a prosperous superpower with a seemingly antiquated mechanism for electing its chief federal executive is not likely to readily jettison that mechanism for the uncertainties of direct popular election. At best, two "reforms" that do not require constitutional amendment might flow from the 2000 controversy. For one, more states might eliminate the faithless elector problem, namely, electors who cast their ballots for candidates other than the ones to whom they were pledged in the election. Twenty-nine states and the District of Columbia outlaw faithless voting, though if challenged, these laws might not pass constitutional muster. However, only ten electors have broken faith since 1789, and none have changed an election outcome. But faithless voting "has increased from one in every twenty elections from 1789 to 1944 to more than one in every two elections since l948." (33) During the 2000 post-election contest, moreover, there were rumors that Democ rats were attempting to entice several Republican electors to defect from Bush. Second, more states might, like Nebraska and Maine, cease to award all of their electoral votes to one candidate. Some states might award their electoral votes in proportion to each candidate's popular vote in the state. Others might apportion their electoral votes among their congressional districts so that the number of electoral votes received by a candidate would depend on the number of congressional districts won by the candidate in the state. However, given current geographic voting patterns, such proportional plans would likely benefit Republicans. Thus, large, usually Democratic states, such as California and New York, will not readily abandon their winner-take-all systems. Apportioning electoral votes among congressional districts would also make the already conflictual decennial process of drawing those districts' boundaries even more contentious for state legislatures and governors than it is now.
THE CLINTON LEGACY: REAGAN REDUX AND RESTRAINT
The close 2000 election reflected, in part, the fuzzy closeness of the two major candidates, who hugged the middle ground in the face of polarization in the electorate and Congress. "A tour through each candidate's Web site in search of federalism issues," said one observer, revealed "no profound disagreements." (34)
During the Clinton years, many Democrats moderated previous positions by supporting, for example, work-oriented welfare reform in 1996 with time-limited benefits, continuing federalization of criminal law with "tough-on-criminals" provisions, free trade, and the "don't ask, don't tell" policy on gays in the military. Some Republicans, especially Bush, ceased opposing most New Deal and Great Society programs, such as Social Security, Medicare, Medicaid, and aid to K-12 education. They sought, instead, to reform those programs with what Bush called "compassionate conservatism." The Bush campaign generally avoided or muted such divisive cultural issues as affirmative action, gay rights, "welfare queens," and Nixon's pro-white "southern strategy," all of which had animated the successful campaigns of Richard M. Nixon in 1968, Ronald Reagan in 1980, and George Bush in 1988. (35)
Bush and Gore differed significantly on some issues, such as gun control, but they muted differences as the campaign approached election day. Furthermore, even though Bush oversaw 143 executions while governor of Texas (more than any other governor since the U.S. Supreme Court's 1976 revival of capital punishment), signed a "speed up the juice" law to expedite death-row appeals, and was pilloried as a mad executioner by comedians, Gore never made Bush's death-penalty record an issue, partly because he did not want to be seen as opposing the expected execution of Timothy L. McVeigh for the 1995 Oklahoma City bombing. (The execution, which occurred on 16 May 2001, marked the resumption of federal executions after a 38-year hiatus.)
Nevertheless, differences, often relevant to federalism, still marked the Republican and Democratic campaigns. Republican emphasis on the private sector and marketplace approaches to public policy was reflected, for example, in Bush's support for a federal income-tax cut (billed as a way to return excess taxes to taxpayers); school vouchers and private schools; partial privatization of Social Security; and a state- then private-based Medicare prescription-drug program. Bush proposed a four-year $48 billion grant for the states to subsidize prescription-drug coverage for low-income senior citizens, to be followed by a $110 billion "Medicare modernization" that would rely on private prescription-drug insurance. Gore advocated more spending on federal social programs and tax credits targeted to classes of taxpayers for specific purposes; federal grants to rebuild schools and recruit new teachers; a non-privatized rescue of Social Security; and a more federalized prescription-drug program under Medicare. Bush oft en highlighted the role of states in the federal system; Gore occasionally highlighted cities, including issues of urban sprawl. On issues of morality, such as adolescent pregnancy, Bush urged sexual abstinence; Gore urged sex education. (36)
Yet, a significant part of Clinton's "New Democrat" legacy was to move the Democratic party closer to the center of national public opinion. As Clinton noted upon leaving office: "The American people chose a vital, common-sense center eight years ago... .It's even the basic landscape against [which] that last election was fought in such a close fashion." (37) In moving toward the center, Clinton coopted some important Republican issues--such as balancing the federal budget, reforming welfare, getting tough on crime (e.g., the 1994 Violent Crime Control Act and the 1996 Anti-Terrorism Act), and deregulating the economy-thereby also inducing tension in the Republican party between its conservative congressional leadership and its more centrist congressional minority and centrist gubernatorial majority.
Immediately after assuming office, Clinton was accused by some Democrats of selling out to Wall Street when he pushed an austere budget bill through Congress that increased taxes and placed new caps on domestic spending. The bill passed the U.S. Senate only when Vice President Gore cast a tie-breaking vote on 6 August 1993. Although it is difficult to assess the contribution of Clinton's budget policy to the economic boom of the 1990s, in part because the economy did not soar until late 1995 when the Federal Reserve Board reduced interest rates, by 2001 both the Congressional Budget Office and the president's Office of Management and Budget predicted a $5.6 trillion federal budget surplus over the first decade of the new millennium. Thus, 30 years of federal deficit spending, begun in 1968 when Democratic President Lyndon B. Johnson sought to fight the War in Vietnam and the War on Poverty without increasing taxes, ended under Clinton in 1998. (38)
Clinton embraced the idea that by reducing federal deficit spending rather than increasing spending, market forces would stimulate the economy. Against opposition from labor unions and Rustbelt Democrats, Clinton also supported the North American Free Trade Agreement (NAFTA), the World Trade Organization (WTO), and "fast track" authority for the president to negotiate trade agreements. In turn, he endorsed continued economic deregulation, as reflected in the Telecommunications Act of 1996, which exposed such monopolies as local telephone and cable-TV service to competition and also preempted many traditional areas of state and local telecommunications regulation. (39) Despite having served as governor of Arkansas, Clinton did not actively support governors' pleas for Congress to allow states to collect sales taxes on Internet sales. Instead, he endorsed the 1998 tax moratorium and a generally non-regulatory approach (except for obscenity) to the Internet. At the same time, though, his administration, along wi th 19 states, initiated an antitrust suit against Microsoft.
Clinton also embraced the federal tax code, especially tax credits, as an instrument of economic policy and social reform, but unlike the Republican penchant to cut taxes, he increased taxes on upper income Americans and significantly increased the Earned Income Tax Credit (EITC) for the working poor (although he supported some capital-gains tax relief during his second term). The EITC is now the federal government's single largest anti-poverty program. By promoting the EITC, however, which had also been expanded by Reagan and supported by many Republicans, Clinton presided over a sea change in his party's approach to the poor. The Great Society legacy of the 1960s, which emphasized national welfare rights and public assistance as an entitlement, gave way under Clinton to the idea that government should help only the deserving poor, namely, those willing to work--something Reagan could not accomplish in the face of Democratic Congresses during his eight years in the White House. The change became dramatically evident in 1996 when Clinton--who had campaigned to "end welfare as we know it" and announced in 1996 that "the era of big government is over"--supported the Personal Responsibility and Work Opportunity Reconciliation Act (PRWORA), which ended the 60-year-old Aid to Families with Dependent Children (AFDC) entitlement program and mandated the states to shift 50 percent of their welfare recipients into the workforce by 2002. The PRWORA also reflected Republican desires to give the states more discretion, within federal limits, to administer programs for the poor. Hence, the PRWORA, which created the Temporary Assistance for Needy Families (TANF) block grant for the states, is the principal example, often the only example, cited for the so-called "devolution revolution" of the Clinton era. (10)
Consistent with Democratic tradition, though, Clinton increased federal spending for worker retraining, enlarged Head Start, boosted spending to teach children to read by the third grade, enhanced Pell Grants (which help low-income college students), supported $1,500 tax credits for college costs for low-income families, created a new youth service corps in 1993 (AmeriCorps, which gives grants to states, localities, and nonprofits to support community-service volunteers and allows volunteers to earn stipends for college tuition), supported empowerment zones for cities (which give tax breaks to businesses to revitalize poor areas), expanded Medicare for seniors, endorsed the Family and Medical Leave Act of 1993, shifted significant spending from defense research to medical research in the aftermath of the Cold War, and obtained the State Children's Health Insurance Program (S-CHIP) in 1997 to cover millions of uninsured poor children.
S-CHIP, which pays about 70 percent of states' cost of this insurance, became an issue in 2000 because, by fall 2000, 40 states still had unspent S-CHIP funds amounting to 45 percent of the $4.2 billion authorized by Congress. (41) California and Texas accounted for more than half of the unspent money. Democrats scored Bush on this point because about 10 percent of the nation's 11 million uninsured children were in Texas, which had spent only $112 million of its $561 million S-CHIP money. (42) Unspent funds at the end of 2000 were awarded to the ten states that spent their full allotment: Alaska, Indiana, Kentucky, Maine, Massachusetts, Missouri, New York, North Carolina, Pennsylvania, and South Carolina. Others argue, however, that a key problem with S-CHIP's unspent money was its "use it or lose it" approach, which did not give states sufficient time to expend the funds or take in account variations in state programs. (43) Many states, moreover, fear being stuck with the bill if, after insuring millions of children, Congress fails to reauthorize the federal aid or reduces the aid.
On cultural and environmental issues, Clinton also held fast to Democratic principles, with two significant exceptions. One exception was that he significantly increased criminal-justice spending, presided over an historically high increase in the nation's federal-state-local prison population (to 1,931,859 persons by mid-2000), championed the continuing federalization of criminal law, and approved anti-terrorism legislation carrying negative implications for civil liberties. Second, he signed the Defense of Marriage Act of 1996, which defines marriage as a male-female union for federal benefits and relieves states of the obligation under the federal Constitution's full faith and credit clause (Art. IV, Sec. 1) to recognize same-sex marriages solemnized in another state--a salient issue, given that Vermont approved same-sex "civil unions" in 2000. Otherwise, Clinton rhetorically supported gay and lesbian rights, fought federal and state efforts to regulate or restrict abortion, signed the 1994 Violence Agains t Women Act and its 2000 reauthorization, pressed for a five-day waiting period for handgun purchasers, supported other gun-control measures, enhanced workplace rules, and championed environmental protection, including the setting aside from development millions of acres of federal land, much to the consternation of many western-state Republicans.
Under Clinton, the U.S. Environmental Protection Agency (EPA) also approved significant new regulations in 2000 to implement a key section of the Glean Water Act of 1972 intended to clean up the 40 percent of U.S. waterways (i.e., some 20,000 river segments, lakes, and estuaries) that fall short of federal health standards. Republicans in Congress, who prefer to leave this matter to the states, acted to cut off funding to implement the regulations. Many farmers opposed the new rules because they principally target "nonpoint source" agriculture pollution (e.g., herbicides, pesticides, and fertilizers) (44) Since 1972, the EPA has had more success reducing "point source" pollution discharged by industrial and municipal facilities than "nonpoint source" pollution. Clinton's EPA did respond to some state concerns by (1) increasing state administrative flexibility; (2) removing rules that would have required new permits for livestock, forestry, and aquaculture activities; (3) allowing states four years rather than two years to update inventories of polluted waters; and (4) permitting states to set their own clean-up timetables, though not exceeding 15 years.
Politically, however, the Clinton era saw a dramatic weakening of the Democratic party in office. In 1994, Republicans became the majority in the U.S. House of Representatives for the first time in 40 years. Furthermore, unlike Republican House victories in 1946 and 1952 when Republicans lost their hold in the next election, Republicans remained the majority House party in 2001. Although Democrats again became the majority party in the U.S. Senate when Jeffords defected from the Republicans in 2001, Democrats had held 57 Senate seats when Clinton was first elected president. In the states, there were 30 Democratic governors, 18 Republican governors, and two independent governors in 1993. After the 1994 election, there were 30 Republican governors, 19 Democratic governors, and one independent. Bush himself entered the Texas governorship with the 1994 Republican tide, which marked the first time since 1970 that the GOP won a majority of the governorships. At the start of 2001, there were 29 Republican governors , 19 Democrats, and two independents, with Republicans holding the governor's mansion in eight of the ten largest states. Similarly, at the outset of Clinton's tenure, Democrats controlled 30 state legislatures and Republicans controlled six, with 13 split between the two parties. By 2001, there were 16 Democratic legislatures, 17 Republican legislatures, and 16 split legislatures. (45) Noting that "in 1990 Democratic state legislators outnumbered Republicans in the 50 states by 1,800; today that number has dropped to 300," former Senator Bill Bradley supported former Atlanta Mayor Maynard Jackson for chairman of the Democratic National Committee in 2001 on the grounds that Jackson would support more effectively than his rival, Terry McAuliffe, "state precinct organization and get-out-the-vote efforts," "consult and sup port state party organizations and their chairs," and help Democrats win more federal, state, and local offices. (46) But the Democrats chose McAuliffe, a national consultant and campaign fund -raiser endorsed by Clinton.
Intergovernmentally, the administration's record is quite mixed. Clinton's "reinventing government" initiative, headed by Gore, produced an 11 percent reduction in federal-government employment but little increased federal-agency efficiency and effectiveness or increased discretion and flexibility for state and local governments. It was "more sizzle than substance." (47) In a 2000 survey of 21,000 federal employees, only 36 percent reported that their agency had made reinvention a priority. (48) Given that contracting out produced 5.7 persons receiving income from the federal government for each federal civilian-employee eliminated, "the claim that the federal government is smaller and that the era of big government is over is little more than political rhetoric." (49) Likewise, none of the significant intergovernmental recommendations, most of which aimed to enhance state-local flexibility, put forth by the National Performance Review in 1993 saw the light of day, although the EPA took significant steps away from "command-and-control" regulation and toward more intergovernmentally cooperative regulation. (59) In turn, the 37-year-old U.S. Advisory Commission on Intergovernmental Relations (ACIR) was defunded in 1996, partly because Clinton turned against the commission when it issued a draft report recommending termination of a number of federal mandates on state and local governments. (51)
Clinton's 100,000-cops-on-the-streets grant program, Community Oriented Policing Services (COPS), had yielded about 60,000 police officers by mid-2000 (despite COPS' claim of 105,000 officers) amid criticisms that COPS was poorly administered, awarded nearly half of its grants to small communities having low crime rates and fewer than 10,000 residents, counted 2,080 police hired under earlier federal programs as COPS' cops, counted civilians hired to perform administrative and technological functions because they presumably enabled redeployment of existing officers, and allowed local governments to substitute federal dollars for local dollars that would have been used to hire officers anyway. (52) In addition, 47.7 percent of the funds awarded to 315 large agencies serving big jurisdictions (i.e., 100,000 or more people) went to ten police departments serving 21 percent of the combined population of the 315 agencies jurisdictions and handling only 24 percent of their reported violent crimes. (53)
Federal spending on criminal justice, mostly grants to states and localities, nearly doubled under Clinton. In contrast, Bush's first budget proposal contained no increase in such spending and only small increases for five years thereafter. Bush proposed to reduce COPS by $182 million, but to increase spending on Weed and Seed, a program started by his father, which combines law enforcement with economic development in high-crime areas. Bush also proposed to reduce a new federal program that reimburses states for incarcerating criminal aliens. California's former Republican governor, Pete Wilson, had especially lobbied Clinton and Congress to enact this program on the ground that states should not have to pay the entire costs of the federal government's failure to control the country's borders.
One marked difference between Clinton and previous presidents was Clinton's ability to issue waivers of federal law to allow states to experiment with implementation of federal social programs, such as welfare and Medicaid, in ways otherwise limited or prohibited by standing statutes and regulations. Reagan and Bush had issued waivers too, but their ability to do so was constrained by Democratic Congresses which feared that Reagan, Bush, and the states would use waivers to gut social programs. Clinton faced Republican Congresses friendly to waivers, and his waiver policies were generally consistent with Republican preferences, even though his waivers did not go as far as might have been desired by many Republicans. In addition, after 1994, a majority of the governors were Republican, and Republicans were ascending in the state legislatures. Hence, the political climate for waivers was much more favorable for Clinton than for his predecessors. One political result of Clinton's waivers was that several Republi can governors, especially Tommy Thompson of Wisconsin, became national celebrities for using waivers to reform welfare and lay the groundwork for the PRWORA in 1996. After 2000, President Bush appointed Thompson secretary of the U.S. Department of Health and Human Services (HHS).
Waivers have become a presidential tool of intergovernmental relations for several reasons. For one, federal statutes and regulations became more complex and restrictive as New Deal and Great Society programs were expanded, amended, and encrusted with new rules over the decades. Second, federal social legislation and regulation had long emphasized procedural rules rather than performance outcomes; that is, an ethic of doing things properly prevailed over an ethic of doing things effectively. In addition, success was frequently measured by how much money was spent, under the false assumption that bigger inputs produce better outputs (e.g., more dollars produce more scholars). Third, by the 1980s, there was growing criticism of federal social programs and growing pressure to allow states more discretion to experiment to improve outcomes. Fourth, the matching costs of federal social programs, especially Medicaid, for states and localities skyrocketed during the 1980s, thus creating pressure to constrain costs w ithout sacrificing services. Fifth, federal aid had shifted sharply from places (i.e., state and local capital investment and general government purposes) to persons (i.e., payments to individuals) by the 1990s. By 1995, 62.8 percent of federal aid was dedicated to payments to individuals, compared to only 31.8 percent in 1978 (see Figure 1). Most aid-to-persons programs involve continual cost increases and pose complex outcome issues. Sixth, obtaining legislative relief by the 1980s had become difficult for the states because of divided government in Washington, partisan polarization in Congress, and thick interest-group conflict. Governors, therefore, bypassed the legislative gridlock by pressing presidents for waiver relief, a strategy that proved most fruitful by the mid-1990s with the Clinton White House and Republican Congress. The only significant reform of federal social programs under Clinton was the 1996 PRWORA, which affected the fiscally small AFDC program that served a politically weak clientele vulnerable to criticism for not getting jobs. Otherwise, Clinton and congressional Democrats resisted reforms of other programs, especially the much bigger Medicaid program. Hence, states still must rely on waivers to alter Medicaid-a process "that state officials find onerous and which they say hampers innovation." (54)
Waivers are not without criticism. They jeopardize the integrity of the rule of law and potentially enhance executive power over legislative power in both Washington and the state capitals. They also pose issues of democratic accountability insofar as they are negotiated and implemented by executive officials outside of floodlit legislative processes. They raise questions of equity, as well, insofar as they introduce variability in the implementation of law and, thus, equal-protection concerns, and insofar as they politicize law enforcement.
Although some observers characterize the Clinton era as one marked by a "devolution revolution," devolution was not evident. (55) States gained some administrative discretion and flexibility over the administration of certain federal programs, as in PRWORA, but the prime example of "devolution," TANF, is a block grant with moral principles (56) attached to it by Democrats and Republicans seeking to maintain or achieve national objectives. TANF's conditions constrain state experimentation within specified boundaries and even penalize states for failures to achieve congressional performance expectations. (57) The real revolution in TANF was the guillotining of traditional liberal Democratic welfare principles.
Otherwise, preemption and conditions attached to federal aid continued unabated, as did the post-1978 shift of federal aid from places to persons (see Figure 1). One significant exception to these coercive trends was the slowing of unfunded federal mandates on states and localities due to the Unfunded Mandates Reform Act (UMRA) of 1995,58 a singular intergovernmental accomplishment of the Clinton years, but one achieved only when Republicans captured the Congress and made UMRA their top priority, not so much to relieve state and local officials but to restrain government spending throughout the federal system. In short, on the traditional liberal-conservative economic dimension of policymaking, the Clinton years did more to advance the so-called Reagan Revolution than did the 1981-1989 Reagan years. On the newer socio-cultural dimension of federal policymaking (e.g., abortion, gay rights, and environment), the Clinton years continued to frustrate the Reagan Revolution.
THE PRESIDENTIAL-CONGRESSIONAL POLICY MIX
The 106th Republican-majority Congress ended 2000 by appropriating approximately $635 billion in discretionary spending for FY 2001-about $10 billion more than Clinton requested, $24 billion more than needed to maintain current federal services at the rate of inflation, and $94 billion more than the limit set in the balanced budget law of 1997. Republicans, therefore, could not legitimately tar Democrats with the label "big-government spenders."
For state and local governments, Congress, among other things, (1) increased funding from $1.1 billion to $2 billion for the Child Care and Developmental Block Grant (CCDBG); (2) added $1.35 billion to the Individuals with Disabilities Education Act (IDEA) program, thus increasing the federal contribution to 15 percent of costs (though still short of the 40 percent promised to the states in 1975); (3) created a new $1.2 billion per-year grant program to fund school repairs while boosting overall federal spending on education by $6.5 billion, including a third year of funding for Clinton's program to reduce class sizes by hiring 100,000 more teachers; (4) reduced the Social Services Block Grant (SSBG) by $50 million to $1.75 billion but allowed states to transfer 10 percent of their TANF funds to SSBG to help compensate for the cut; (5) approved $30.6 billion for the U.S. Department of Housing and Urban Development (an 18 percent increase); (6) dedicated $1 billion to 1,183 pork-barrel projects for economic de velopment, university research, and water-and-sewer construction; and (7) initiated, just before election day, a $7.8 billion 35-year federal-state program to restore Florida's Everglades.
A favorite program of mayors, the Community Development Block Grant (CDBG), was level-funded at $5 billion for the third straight year. About $4.3 billion will go to states and entitlement areas as formula grants; some $700 million was earmarked for pork-barrel projects (e.g., $50,000 for a wading pool in San Bernardino, California, $50,000 for a horse park in Armstrong County, Pennsylvania, and $700,000 for two North Carolina universities to build a research facility for an Idealliance Program). Another program popular with mayors, brownfields legislation to clean up abandoned industrial sites, stalled in the 106th Congress. This program has functioned since 1993 as part of Superfund. However, soon after taking office, Bush strongly endorsed a bill to authorize $5 billion in grants to state and local governments over five years to clean up such contaminated sites. The bill would give states the chief supervising role.
Congress also enacted the Community Renewal and New Markets Act of 2000, which was negotiated between President Clinton and House Speaker J. Dennis Hastert (R-IL) (59.) The act continues 31 'empowerment zones" (which offer tax incentives and wage credits to attract businesses to poor areas); (60) creates nine new empowerment zones in seven urban areas and two rural communities; inaugurates 40 "renewal communities" which add onto empowerment zones some regulatory relief and a capital-gains tax exemption for some assets held for more than five years; establishes a $15 billion New Markets tax credit for the next seven years to entice private investors into low-income areas; expands the Low-Income Housing Tax Credit to $1.50 per capita in FY 2001 and $1.75 per capita in FY 2002; and permits state and local governments to issue more private-activity bonds for appropriate construction projects, such as housing for the poor. Congress also increased the state volume limits on tax-exempt private-activity bonds to $62 .50 per resident or $187.5 million in FY 2001 and to $75 per resident or $225 million in FY 2002.
Bush's priorities became evident in his $1.96 trillion FY 2002 federal-budget proposal, which included a $1.6 trillion tax cut over ten years and a restrained 4 percent increase in discretionary domestic and defense spending, (61) which eliminated $8 billion earmarked by members of Congress for pet projects in their states and districts. Bush's budget continued the shifting of federal domestic policymaking from places to persons, not only in its tax-cut request but also in its proposals to increase spending for education, social services, health, and veterans benefits while reducing place-related spending important to state and local officials, including transportation, natural resources and environment, agriculture, community development, and justice administration. Some liberals charged that Bush wants to revive the Reagan Revolution yet again "by putting new spending constraints on the federal government with the tax cut; by ceding more responsibilities to state and local governments and religious institu tions; and by transforming two great monuments of the New Deal and Great Society, with partial privatizing of Social Security and Medicare." (62)
Federal Tax Reductions
Taxation is an intergovernmental issue because of the interdependence of modern economic activity, the salience of taxes for voters, and the many links between federal and state taxes. In 1999, 70 percent ($1.8 trillion) of all tax revenue was collected by the federal government, 20 percent ($500 billion) by state governments, and 10 percent ($284 billion) by local governments.
The federal income-tax cut urged by President Bush, and passed by Congress in June 2001 as the Economic Growth and Tax Relief Reconciliation Act, will alter state income-tax revenues for those states whose income-tax code is coupled to the federal tax code. At the same time, controversy arose over whether the 42 states with a personal income tax would tax the 2001 federal tax-rebate issued to taxpayers by the U.S. Treasury under the new law.
The 2001 federal tax law also phases out the federal estate-tax (or death tax) until it disappears in 2010. Starting in 2002, the first $1 million (compared to $675,000 in 2001) of an estate will be excluded from taxation. This change will reduce state tax revenues because the previous federal law permitted a federal tax-credit for state estate-taxes, which allowed states to tax up to the limit of the credit without increasing an estate's total state and federal tax. This credit will be phased out until it ends on 31 December 2004. All states use the "pickup tax," by which a state's tax equals the credit permitted by the federal tax code for the state estate-tax. For example, a $1 million estate in 2001 would have been liable for $125,250 in federal taxes after applying the $675,000 exemption. The pickup tax would yield $33,200 for the state and leave $92,050 for the federal government. Hence, states, as well as the federal government, will lose billions of dollars. (63)
The states, of course, can still levy their own estate taxes; however, interstate competition will likely temper their doing so. (64) A state that levies an estate tax risks losing senior citizens who might migrate to states having no estate tax. Whether such an outcome is a virtue or a vice of federalism depends on one's normative perspective. For those who advocate limited government and, thus, limited taxation, such an outcome is a virtue. Competitive federalism constrains all governments in the federal system, whereas the federal estate-tax was a federal-state collusive arrangement that made it impossible for citizens to escape estate taxes via interstate migration. The pickup tax also relieved state officials of the political burden of appearing to be death taxers themselves. For those who support estate taxation (or accumulated wealth taxation) on grounds of equity, income redistribution, and philanthropy, such an outcome is a vice of American federalism.
Many governors opposed elimination of the estate tax, and many expressed concern about the income-tax cut. Bush's tax plan will be "one of the single largest revenue hits to the states ever," said the National Governors' Association. States that allow taxpayers to deduct their federal income taxes on their state income-tax returns will reap an increase in state income-tax revenue. States that base their income-tax amounts on taxpayers' federal income-tax payments will experience a revenue decline.
A related issue is Internet taxation. (65) Many state officials oppose the 1998 federal moratorium on new Internet access and commerce taxes (the Internet Tax Freedom Act), which will expire on 21 October 2001. Opponents of Internet taxation wish to make the moratorium permanent. Hence, as a conservative publication put it: "Mischief usually follows any annual National Governors' Association meeting, and last week's session was no exception. Over 40 of the nation's governors are drafting a letter" urging Congress not to renew the moratorium. (66) In contrast, U.S. Senator George Voinovich (D-OH) said that "one of the greatest threats to federalism we have ever seen is what we do to e-commerce. If we lose that one, it will be disastrous. States will lose power and money." (67) In 1999, states and localities collected $203 billion in sales taxes, which accounted, on average, for 33 percent of state revenues and 11 percent of local revenues. Forty-five states, plus Washington, D.C., levy a sales tax. The CBO rep orted in August 2001 that states could lose $20 billion in sales-tax revenue by 2003 due to the Internet-tax moratorium.
Many state officials are also concerned about revenue losses because state sales-tax bases have declined in recent decades due to increased legal exemptions for such products as food and drugs, increased consumption in the largely untaxed service sector, and increased out-of-state mail-order and Internet sales not subject to state sales taxation. For these reasons, though, some opponents of Internet taxation argue that the states' Depression-era sales taxes have outlived their utility and should be slated for extinction anyway. Proponents argue that the sales tax remains essential and that all commerce, including e-commerce, should be taxed equally. Failure to tax Internet sales disadvantages bricks-and-mortar Main Street businesses that must collect the sales tax and discriminates against low-income people who have less access to the Internet. Opponents argue that Internet taxes would depress e-commerce and that e-merchants cannot possibly comply with the nation's 7,458 state and local sales-tax regimes. Opp onents maintain that the playing field is level because the shipping and handling charges imposed by e-merchants equal or exceed the sales tax collected by bricks-and-mortar retailers, and that local retailers can also reach national and international markets through the Internet.
Congress will likely renew the moratorium, but the Big 7 state-local coalition and other state-local associations (e.g., the Multistate Tax Commission) have proposed a Streamlined Sales and Use Tax plan that would simplify sales-tax laws (e.g., whether apple juice is a beverage or a fruit for tax purposes) and administration through uniform tax rates within each state, uniform definitions of goods and services, uniform procedures for assigning transactions to tax jurisdictions, uniform treatment of tax-exempt purchasers, one-stop vendor registration, and fewer vendor audits. (68) They are urging Congress to approve an Interstate Sales and Use Tax Compact to allow states to implement the plan. About 35 states have signed onto the idea, and 19 states have enacted the plan's model legislation. However, without congressional authorization, states cannot compel out-of-state vendors to collect and remit their sales tax if the vendors have no physical presence in the state; some high-tech states, such as California, Massachusetts, and Virginia, have not supported the plan; and many e-merchants and others oppose the plan. The Heritage Foundation, for example, urges Congress to reject this destination-based tax compact on the grounds that it would create a national sales-tax cartel harmful to consumers but beneficial to profligate governments, invade privacy by collecting data on individual purchases, and violate constitutional principles by allowing state and local governments to levy taxes on businesses in other states. The root issue, argues Heritage, is the unwillingness of states and localities to impose the sales tax on their in-state companies that ship purchases to out-of-state buyers because they fear the interstate tax-competition that would arise from such an arrangement. (69) That is, e-merchants might flee states that have a high sales tax, thus driving down sales taxes nationwide as states compete to retain e-businesses.
States are also battling hundreds of websites that have sprung up to sell taxless cigarettes. As cigarette costs and taxes have increased in recent years, smokers have either quit or turned to bootleggers, Indian reservations, and the Internet to buy cigarettes. In response, a number of states have sought to enforce the 50-year-old Jenkins Act-a federal law requiring cigarette shippers to report to the states the names and addresses of cigarette purchasers and the brand and quantity purchased-so as to collect excise and use taxes from Internet purchasers. Noncompliance can subject a shipper to federal prosecution. California notified 4,946 delinquents in early 2000 demanding payment of its $8.70 per carton excise tax, plus the applicable county use tax. More than 78 percent of the surprised Internet purchasers paid up. (70) New York increased its tax from 56 cents to $1.11 per pack in 2000 and banned Internet, mail, and telephone sales of cigarettes to consumers in the Empire State.
Meanwhile, Memorial Concepts Online filed suit in federal court against Oklahoma and its Board of Embalmers and Funeral Directors, challenging a state law that restricts the sale of caskets and other funeral merchandise to funeral directors licensed in the state. A similar case against Tennessee is on appeal.
Republicans, especially Senator John McCain (R-AZ) and Representative Ernest Istook (R-OK), fought Clinton to enact the Children's Internet Protection Act requiring schools and libraries to install Internet filtering software on their computers to block access to websites displaying obscenity, hate speech, and other objectionable content. Institutions failing to install such software will lose access to the Universal Service Discount ("E-rate") for Internet Access and lose grant funds from the Library Services and Technology Act. Libraries were required to comply by 31 July 2001. The American Library Association, American Way Foundation, and American Civil Liberties Union filed lawsuits challenging the law. Local school officials across the country were quite divided on the law. Some hailed it as wise policy; others criticized it as an unnecessary and costly federal mandate. Many librarians were reluctant to pay for installation so long as litigation might overturn the law. Some also complained: "There is no product out there that does what the law says must be done [i.e., block visual images]." (71)
At the same time, the U.S. Department of Education applied to the states amendments to Section 508 of the 1973 Rehabilitation Act that require the federal government to purchase only information technology products and services that are accessible to people with disabilities. Although the law does not apply to the states, the department applied it to states receiving its Assistive Technology Act State Grants, which provide about $38 million per year to all 50 states. Many state officials, who fear potentially broad liability under this rule, have challenged the rule, and some states might withdraw from the grant program to avoid liability.
In July 2000, over the objections of some states, President Clinton signed, manually, not digitally, the Electronic Signatures in Global and National Commerce Act (E-SIGN), which preempts about 40 state laws that already authorize digital signatures. States, however, can resuscitate their jurisdiction by adopting the standards of the Uniform Electronic Signatures Act proposed by the National Conference of Commissioners on Uniform State Laws.
Congress also considered numerous bills to protect personal privacy on the Internet, such as protection against electronic surveillance (e.g., "web bugs") and disclosures of personal information, such as financial and medical records. A key federalism issue is whether federal legislation should preempt state privacy laws, especially stricter laws. A number of states, such as Florida, Illinois, Maine, Maryland, and Vermont, have privacy laws that are tougher and more comprehensive than those enacted in Congress's 1999 overhaul of financial services, which does not preempt stricter state laws. Consumer advocates, such as the Electronic Privacy Information Center, oppose federal preemption because they fear it will displace stronger state laws with a weaker national law friendly to corporations. Many Internet businesses and other industry groups support federal preemption on the ground that businesses cannot comply with 50 different state privacy laws. One key policy issue underlying this federalism debate is wh ether privacy law should be based on an "opt-out" or "opt-in" rule. Consumer advocates and many state legislators prefer an "opt-in" rule that permits businesses to share personal information only if the individual consents to it. Website operators prefer an "opt-out" rule that allows them to share personal information so long as the individual does not expressly prohibit it.
More generally, some observers argue that information technology will significantly change intergovernmental relations by allowing more rapid sharing and comparing of information by unifying systems, processes, and information across governments, and by leading federal, state, and local officials to develop common architectures and data definitions. Critics decry the rise of "big brother," such as the construction by the U.S. Department of Justice of a Global Justice Information Network that will link local, state, federal, and international criminal-record networks and allow information exchanges among many agencies, including Interpol, the FBI, the Federal Emergency Management Agency (FEMA), state motor-vehicle departments, state courts and correctional facilities, local jails, and local warrant and booking systems. The 1998 Crime Identification Technology Act authorized $250 million per year for five years in grants for states to integrate criminal justice information.
Other observers argue that information technology will decentralize power by giving civic groups, community organizations, and local governments access to more information and ever increasing capacity to manage more varied activities and complex policies. Others maintain that this technology will centralize power because it renders "local, state, and even national governments incapable of regulating behavior that spans jurisdictions," (72) such as e-commerce and e-crime.
Elementary and secondary education (K-12) reform was a top priority for President Bush, and a nearly 500-page "No Child Left Behind" bill was wending its way through congressional controversy in 2001. The 1965 Elementary and Secondary Education Act (ESEA) was due for reauthorization by the Congress in 1999-2000, but for the first time in 35 years, Congress allowed ESEA's authorization to lapse because it could not agree on a reauthorization. Bush's proposal would, among other things, consolidate more than 50 grants into five flexible block grants for the states to (1) improve the performance of underachieving students, (2) enhance English-language fluency among non-English-speaking children, (3) recruit and train more teachers, (4) enhance school safety (e.g., by defining a persistently dangerous school" and reporting safety data for every school), and (5) foster school choice (e.g., charter schools and open enrollment) (73) Many Democrats support categorical grants that give states and school districts less flexibility. In 1999-2000, the federal government spent $44 billion on K-12 education through some 35 programs in 15 federal departments. Republicans have traditionally stood for local control of education; however, Republicans have also advocated federal intervention to improve K-12 education, especially to meet U.S. economic needs. ESFA originated in 1956 under Republican President Dwight D. Eisenhower. Reagan made education reform a prominent national issue as well, although he also sought to abolish the U.S. Department of Education. (Bush removed the abolition plank from the Republican platform in 2000.)
Republicans, moreover, tend to emphasize the need for schools to develop children's basic skills (e.g., reading, writing, and arithmetic) and instill traditional values, such as the work ethic. Democrats also support federal intervention, but are more likely to champion higher federal spending on education and more federal intervention to address issues of poverty and civil rights. The parties' differences reflect not only philosophy but also constituencies. Democratic constituents are more likely to be lower income inner-city and rural residents and minority voters, as well as sociopolitical liberals who regard the mere inculcation of basic skills and traditional values as a crabbed view of education. Teacher organizations, such as the National Education Association and the American Federation of Teachers, also tend to support Democrats. Hence, federal spending, civil rights, and the like are Democratic priorities, and congressional Democrats insisted that much more be spent on education than Bush proposed for FY 2002. Republican constituents are more likely to be upper income voters for whom federal spending on education is less important.
Thus, for example, Bush proposed to eliminate Clinton's New Urgent School Repair Initiative that provides $1.2 billion to repair and expand public schools beginning in 2001. The initiative's proponents argue that states and localities need this grant incentive because they are fiscally and politically pressured to defer school maintenance. Bush argues that school districts can use monies in his proposal for school repair and construction if they wish to do so and that repair and construction are primarily state and local responsibilities in any event.
Potentially, achieving Republican objectives involves more federal intervention into core areas of traditional local control, such as curriculum, testing, and teacher qualifications, than is the case with Democratic objectives. Republicans in Washington, D.C., therefore, face a federalist dilemma. This was reflected in Bush's proposal to require national testing of students to measure skills in reading, history, mathematics, and science; to publicize test scores for schools and districts by race, sex, English-language skills, disability, and socioeconomic class; and to use test results as a condition of federal aid. (The federal government provides about 7 percent of all funding for K-12 education, compared to 50 percent provided by the states and 43 percent by localities.) About 41 states already participate voluntarily in the National Assessment of Education Progress (NAEP) 4th- and 8th-grade reading and math tests; Bush would require all states to do so. (74) Such a mandate would be a substantial, unprece dented intervention into local control of education. However, Bush's testing proposal has, to date, been ameliorated by both Democrats and Republicans in Congress. Current proposals, rather than mandating national tests, call for each state to formulate annual "tests of objective knowledge based on measurable, verifiable and widely accepted professional testing and assessment standards" from the third through the eighth grade. Aside from the merits or demerits of testing, critics argue that the proposal still constitutes an unfunded federal mandate on the states and that, in any event, "pupils shouldn't worry too much about flunking because governors, wary of any measurement that will make their states look bad, will do their best to set the testing bar low enough for, say, 90 percent to clear it easily." (75)
In another example of potential federal intervention, the U.S. Senate, at the urging of Senator Jesse Helms (R-NC), voted 51-49 to deny federal funding to any school district that discriminates against the Boy Scouts or similar organizations that "prohibit the acceptance of homosexuals."
Despite partisan differences over certain specifics, a general bipartisan convergence appears to be under way insofar as more conservatives now accept a federal role in K-12 education and more liberals now accept a need for competition and accountability to reform education. Just as many Republican parents endorse a federal role in certain aspects of public education, Bush declared that his approach to education would "not come by disdaining or dismantling the federal role in education. I believe strongly in local control of schools. I trust local folks to chart the path to excellence. But educational excellence for all is a national issue." (76) In turn, a key Democratic constituency, African Americans, supports school vouchers, and young blacks tend to support devolution and to identify less with the Democratic party than do their elders. In a 2001 survey, some 60 percent of "blacks younger that 35 said 'shifting many government functions from the federal level to the states' was a good idea-while an equall y lopsided majority of those 65 and older rejected devolution." (77) With some 13,726 independent school districts, about 90,000 public schools, approximately 2.9 million teachers, and nearly 50 million pupils in the United States, education reform will necessarily be intergovernmental. (78)
Environmental protection became a flashpoint at the outset of Bush's presidency when he criticized and delayed some of Clinton's midnight regulations and proposed to open about 8 percent of Alaska's Arctic wildlife area to oil drilling. On 5 January 2001, Clinton had issued an executive order prohibiting road-building on 58.5 million acres of U.S. Forest Service land (30 percent of 192 million acres of such land). He also banned the harvesting of old-growth trees on public lands, and created seven new national land monuments in addition to 14 he established earlier by executive order under the 1906 Antiquities Act. He also opposed Arctic oil-drilling. Clinton's policies, such as creation of the 1.7-million-acre Grand Staircase-Escalante National Monument, angered many western Republicans whose states house the nearly one-third of the U.S. land area owned by the federal government. Especially controversial was Bush's delaying of Clinton's rule to require arsenic reduction in drinking water from 50 parts per b illion to 10 parts. The regulation was perhaps issued late because compliance will be most costly for New Mexico (an estimated $400 million), which was an uncertain state for Gore in 2000. Some key local and state Democratic officials in the Land of Enchantment had lobbied against the regulation.
Bush, terming Clinton's actions a "Washington-centered mindset," declared: "It's time to build conservation partnerships between the federal government and state governments, local communities and private landowners." (79) Bush's campaign website had said: "As President, Gov. Bush will maintain a strong federal environmental role but will return significant authority to state and local communities." Bush's appointment of Gale A. Norton, a conservative from Colorado, as secretary of the interior alarmed most environmentalists. However, Bush did uphold Clinton's costly regulation requiring petroleum companies to remove most pollutants from diesel fuel.
A rising intergovernmental issue has been the EPA's effort to withhold federal transportation funds from metropolitan areas that do not comply with federal clean-air standards. In the first major state-response, Georgia's legislature authorized the governor to establish and enforce a growth-management plan over Atlanta's 13-county metropolitan region. The governor thus has substantial authority to dictate land-use and transportation decisions. AS a result, in 2000, the EPA approved Georgia's new clean-air plan. Critics argue that the EPA's policy constitutes a massive federal takeover of metropolitan regions and a covert strategy to control urban sprawl.
On 4 January 2001, Clinton's EPA also issued proposed new regulations for sanitary sewer overflows, compliance with which could cost local governments between $93.5 million and $126.5 million a year. Although the regulations were developed over seven years with an advisory committee that included a representative of the National League of Cities (NLC), the NLC remained unconvinced that the overflow problem is "of sufficient magnitude to require a new, onerous and costly federal mandate." (80)
In March 2001, Congress approved a $100 million grant program for the nation's 33,000 local fire departments. The grants, which are awarded competitively, can be used to train firefighters, purchase vehicles and equipment, and conduct fire-prevention programs. Fire departments must put up matching money equal to 10 percent of the cost of their proposed grant activity. This program, however, pales in comparison to the growing problem of wildfires in forest and grass lands.
The summers of 2000 and 2001 brought huge forest fires in the West. Wildfires scorched more than 7 million acres and destroyed more than 850 homes in nine western states in 2000. Firefighting agencies spent $1.6 billion to battle wildfires in 2000, prompting Congress to add $1.8 billion to its 2001 National Fire Plan. Yet, in July 2001, four firefighters died in a blaze that spread from 10 acres to 2,500 acres in less than three hours. Realization that increased spending on wildland fire suppression has not decreased the average acreage burned nationally each year, and that property losses, environmental damage, and injury to communities have escalated unabated, has led federal, state, and local officials to reconsider long-standing policies.
After disastrous fires in 1910, the U.S. Forest Service (founded in 1905) adopted a policy of attempting to suppress wildfires by the next morning. Its motto was: "Ten a.m. and ten acres." However, this policy, along with the logging of mature trees, allowed forests to become overgrown with brush, cheatgrass rather than the more fire-resistant sagebrush, diseased trees, and dense stands of short, spindly, water-starved "dog trees," which, along with accumulated forest debris, provide fuel for fires that start easily and bloom quickly into devastating "crown fires" in which 70-foot flames leap across treetops and even across roads, rivers, and canyons, generating heat as high as 2,000 degrees Fahrenheit and incinerating everything in their path. Suppression, therefore, aggravated the problem by short-circuiting nature's periodic fires that cleaned out such underbrush and dog trees, leaving large, mature trees to flourish. Consequently, many foresters and environmentalists have concluded that certain fires sho uld be permitted to burn so that forests can recover their natural, environmentally beneficial fire cycle. This policy is politically difficult to pursue, however, because of the tremendous population growth in many of the western states most plagued by wildfires. Property losses have escalated despite heightened suppression efforts because many more homes and businesses are now located within and adjacent to forests. Rapid fire suppression is the first preference of property owners and of local and state governments desiring economic growth. Allowing natural fires would destroy property and close many forest areas to economic development.
The Western Governors' Association (WGA) has led an effort by representatives from the region's states, local governments, tribes, federal agencies, and property owners to forge a ten-year cooperative strategy to reduce wildfire risks. The strategy aims to thin out dog trees and treat noxious weeds in order to remove fuel for crown fires, rehabilitate scorched lands, and restore riparian areas. To implement the strategy, western states are requesting $3 billion annually from the U.S. Forest Service and Department of the Interior. However, many environmentalists fear that such efforts will expose protected forests to commercial logging. (81) Indeed, at the 2002 Winter Olympics in Salt Lake City, the WGA will co-sponsor six informational kiosks built with dog-tree timber in order to demonstrate its commercial uses. Sales of such wood would help pay for forest rehabilitation, but also open the forests to logging.
Meanwhile, debate in Congress took on a partisan tone. Republicans blamed the wildfires on the Clinton administration's forest-management policies and underfunding of fire prevention and fire fighting. Democrats blamed the problem on western Republicans' obsession with fire suppression and commercial logging.
Partisan differences were also evident in congressional debates over a patients' bill of rights. (82) Democrats, asserting states' rights, sought to allow patients to sue health-care providers in state courts, which Democrats view as more friendly to consumers than federal courts today. Bush sought to channel such lawsuits into the federal courts, which Republicans view as more friendly to health-care providers. The president threatened to veto any bill which, in his view, would benefit the interests of trial lawyers in the states, who tend to support Democrats. Currently, most large health-care providers are regulated by federal law; hence, patients can usually sue only in federal courts where damage awards are ordinarily limited to the cost of denied care and patients cannot obtain punitive damages. Awards in state courts are usually higher, and often include punitive damages.
Given strong public support for a patients' bill of rights, compromises are likely to result in legislation that will prevent patients from leaping immediately into state courts with complaints, allow certain types of suits in state courts and certain types in federal courts, increase federal damage awards somewhat, and require state laws to "substantially comply" with federal rules governing HMOs and other health-care programs. Most state officials, however, wish to preserve state laws that are equal to, substantially equivalent to, or more protective than a new federal law. Meanwhile, Bush expressed support for state laws that increase patients' rights in disputes with HMOs. The issue is before the U.S. Supreme Court because a circuit court of appeals struck down Texas's law, enacted while Bush was governor, while another appeals court upheld a similar Illinois law. These laws, like those in 39 other states, allow patients some type of independent review when they are denied coverage or care. (83)
Medicaid is rising again as a prominent intergovernmental issue largely because after cost increases of about 5 percent a year from 1995 to 1999, costs increased by 9 percent in 2000 and are expected to rise at about the same rate for the rest of the decade. Medicaid is again the fastest-growing portion of many state budgets. On the day before he left office, moreover, Clinton issued new regulations giving Medicaid recipients a wide range of new rights against HMOs. The NGA promptly asked President Bush to reconsider the regulations. The governors argue that the new rules will further escalate costs, add substantial administrative burdens, and drive more HMOs away from Medicaid. For example, only four HMOs serve Medicaid patients in Connecticut, compared to 11 in 1995. (84)
Representative John Tierney (D-MA) proposed a States' Rights to Innovate in Health Care Act of 2000 that would offer ten states $3.75 million grants to develop state plans for comprehensive, universal, and cost-effective health care. The bill, which is modeled after Canada's single-payer plan, which originated in Saskatchewan in the 1940s, would provide additional implementation money to states with an approved plan and, then, redirect federal funds from such programs as Medicaid to the new program.
Congress reauthorized the Substance Abuse and Mental Health Services Administration and gave states more flexibility to use grant funds, though with stricter accountability reporting. Grants were approved to help states improve safety in child-care facilities, and the Healthy Start program was broadened to help expectant low-income mothers obtain guidance on prenatal care and child care. States were also authorized to provide Medicaid coverage for recipients diagnosed with cervical or breast cancer through the early-detection program run by the Centers for Disease Control and Prevention.
In June 2000, the Institute of Medicine (IOM) of the National Academy of Sciences recommended a $1.5 billion infusion into the nation's public-health immunization system. (85) The institute reported that 300 unvaccinated children die annually from preventable diseases and that about 70,000 unvaccinated adults die of pneumonia and influenza each year. The IOM also warned that unvaccinated children in low-income urban areas could fuel epidemics. The nation's vaccine system, funded mostly through Section 317 (1970) of the Public Health Services Act with additional support from the 1993 federal Vaccines for Children entitlement, as well as state monies, has atrophied from lack of emergencies and from congressional transfers of Section 317 funds to other activities, including polio and measles eradication overseas. Immunization tends to achieve policy prominence only during emergencies, such as the 1989-1991 measles epidemic. The IOM's report was prompted partly by concerns expressed by east-coast states about the mosquito-borne West Nile virus. The IOM proposed that two-thirds of the $1.5 billion come from federal grants to be allocated to the states by a formula based on need, fiscal capacity, and immunization performance. The remainder would come from the states as matches to the federal grants.
Crime and Terrorism
Congress also passed a major crime bill in October 2000 that includes, mostly at Republican insistence, "Aimee's law," named after Aimee Willard, a student at George Mason University in Virginia who was raped and murdered in 1996 by a convicted killer who had been released from a Nevada prison after serving 12 years of a life sentence. The law, which is retroactive, holds states accountable for new crimes committed in another state if the felon did not serve at least 85 percent of his or her sentence or if the average sentence for his or her crime in the state fell below the national average. A state will be penalized by having some of its criminal-justice grant funds cut off and given to the other state where the felon committed a new crime so as to pay that state's cost of apprehending, convicting, and imprisoning the felon. Aimee's law was vigorously opposed by the National Conference of State Legislatures and National Governors' Association.
In a provision favorable to the states, though, the statute allows state attorneys general to obtain injunctions in federal court against out-of-state alcoholic-beverage shipments when such shipments violate state law. The new law beefs up a 1935 federal statute that proved to be unenforceable but had become more urgent because of the rise of alcoholic-beverage sales over the Internet. However, due largely to pressure from the American Vintners Association and the American Wine Institute, the new law provides for no criminal or civil penalties or awarding of attorneys' fees. In turn, Congress failed to pass a bill that would have banned most forms of Internet gambling, although, due to pressure from several states, the bill would have permitted state-sponsored closed-circuit networks for horse, dog, and jai alai wagering.
With significant Democratic pressure, the statute also reauthorized the 1994 Violence Against Women Act (VAWA), which includes $3.6 billion in various grants, which states and local governments can use more broadly than previously in order to include, for instance, "date rape." Some $185 billion per year for five years is provided for state grants to coordinate police, prosecutors, and victim advocates in combating domestic violence, plus $15 million annually to aid victims of child abuse. Another $175 million over five years was approved for local governments to support shelters for battered women and children. An additional $40 million is available each year to give legal aid to battered women, (86) and a $25 million one-year grant is available to help battered women leaving a shelter to obtain a home. The statute continues the National Domestic Violence Hotline and allows states to use grant funds to improve their reporting of domestic violence cases to the National Instant Criminal Background Check System . The law also obligates states to honor each other's court orders on child support and child custody. In response to the U.S. Supreme Court's Morrisson ruling, (87) however, the law does not permit rape victims to sue their attackers in federal court. In order to implement VAWA's requirement that the domestic violence protection orders of one state be given full faith and credit by other states, the National Conference of Commissioners on Uniform State Laws issued a Uniform Interstate Enforcement of Domestic Violence Protection Orders Act in early 2001 for consideration by state legislatures.
Partisan differences were also reflected in debates over a juvenile-crime block grant for the states, debates intensified by the massacre at Columbine High School in Colorado. Essentially, Democrats argued that stricter regulation of gun sales is the best way to reduce juvenile violence; Republicans argued that tougher penalties for adolescent criminals is the best way to do so. The grant program appropriated $250 million for 2001. Each state received 0.5 percent of the total, with the remainder apportioned among states according to juvenile population.
Meanwhile, the U.S. Department of Justice attempted to convince Congress to repeal its 1998 McDade law, which requires federal prosecutors to obey state ethics laws. After Oregon's supreme court ruled in August 2000 that lawyers cannot cheat, lie, urge others to lie, or misrepresent themselves, an FBI agent in Portland complained, "we now have to go to a drug dealer and say, 'FBI! Would you sell us some drugs, please?'" (88) Federal agents also expressed alarm about a 2001 federal appeals-court ruling which held that an FBI sharpshooter could be tried in state court for his 1992 killing of white-separatist Randy Weaver's wife at Ruby Ridge, Idaho. "When federal officers violate the Constitution," opined the 6-5 court, "either through malice or excessive zeal, they can be held accountable for violating the state's criminal laws." (89)
The bombings of the World Trade Center in New York City in 1993 and the Alfred P. Murrah federal building in Oklahoma City in 1995, as well as later terrorist acts against U.S. targets, led Clinton and Congress to focus more attention on terrorism through, for example, the Ant-Terrorism and Effective Death Penalty Act (1996) and the Defense Against Weapons of Mass Destruction Act (1996). Shortly after the Oklahoma City bombing, Clinton issued Presidential Directive 39 to improve intergovernmental coordination in response to terrorism.
Local officials have been wary of "cooperative" federal policies because "many emergency workers felt like canaries in a coal mine. That's because federal plans for domestic terrorism always presumed that the first responders on the scene would be killed or seriously injured" (90) and that the types of injuries and causes of death among local responders would signal to federal officials the weapons used in incidents. "For the police officers, fire fighters and emergency medical technicians who must wait several hours on the scene before federal authorities arrive, that approach was clearly disturbing." (91) Depending on an incident's location, "federal resources will take anywhere from six to 24 hours to arrive" on the scene. (92) Federal officials, moreover, have more of the training and equipment needed to respond to terrorism than do local officials. Consequently, virtually all state and local officials maintain that the federal government should not take over or dictate responses to terrorism but rather s hare resources, plug into state and local networks, and help ensure that local responders have adequate training and equipment.
Federal spending on counter-terrorism leaped considerably after 1995, totaling about $38.5 billion for 1996-2000, but a consistent problem has been coordination within the federal government itself because about 27 federal agencies have terrorism-related duties, and eight agencies have 24 types of response teams. The GAO has frequently criticized duplication, inefficiency, inept management, and poor threat and risk assessments. (93) Two study panels on terrorism issued reports in December 2000 contending that the United States has no comprehensive "homeland defense" strategy, counter-terrorism duties sprawl across too many federal agencies, and no one has authority to oversee programs. Congress approved more funding for counter-terrorism, including grants for state and local governments, and also passed the Public Health Improvement Act, which authorized $220 million for FY 2001 through FY 2006 to organize public health responses to bioterrorism.
Abortion continued to be a divisive issue, with pro-choice advocates opposing Bush's nomination of former Missouri governor and U.S. senator, John Ashcroft, for attorney general, and with pro-life advocates pressing for federal legislation to (1) ban partial-birth abortions, (2) restrict prescriptions of the abortion drug Mifepristone (the RU-486 Patient Protection bill), (3) outlaw transportation of a pregnant minor across a state line for an abortion in order to evade a state law requiring a minor to obtain parental consent, (4) make it a federal crime to kill a child born alive, and (5) also make it a federal crime (the Unborn Victims of Violence bill) to injure or kill a fetus while committing any one of 68 federal offenses or a crime under military law. About 24 states already have a fetal-protection statute covering the latter. Many Democrats would increase penalties for anyone who injures or kills a fetus while committing a federal crime of violence against a pregnant woman, but without recognizing th e fetus as a separate person. Whereas Clinton threatened to veto all such pro-life legislation, Bush supports such legislation. In March 2001, the National Abortion and Reproductive Rights Action League announced a $40 million four-year campaign to defeat pro-life bills in Congress and state legislatures and to elect pro-choice candidates to federal, state, and local offices.
In 2000, Congress enacted the Religious Land Use and Institutionalized Persons Act (RLUIPA) aimed at circumventing the U.S. Supreme Court's 1997 City of Boerne v. Flores (94) ruling, which struck down the 1993 Religious Freedom Restoration Act (RFRA) that required a "compelling interest" test for all government actions affecting the practice of religion. Many local governments and some states had opposed RFRA and, thus, cheered the Court's decision, but religious groups lobbied Congress and President Clinton to respond to the Court. The new law requires governments to demonstrate that land-use decisions that significantly burden a religious institution serve a compelling state interest and constitute the least restrictive means to serve that interest. The law also requires state and local governments to allow persons institutionalized in their facilities (e.g., prisons, hospitals, and nursing homes) to practice their religion unless there is a compelling need to prohibit a practice. In an effort to pass judi cial muster, Congress made RLUIPA applicable to (1) all institutions that receive federal money (which is virtually all state and local facilities) and (2) religious practices tied to interstate commerce (i.e., because construction materials are shipped across state lines, RLUIPA covers renovation or construction of religious buildings and parking lots). "Municipalities will no longer be able to create religion-free zones which ban churches from building houses of worship in commercial or residential communities," exulted the executive director of the Christian Legal Society. (95) Donald J. Borut, executive director of the NLC, complained: "We are extremely disappointed that the federal government has again preempted a fundamental home rule power of local governments." (96)
Municipal conflicts with houses of worship increased during the 1990s and include such issues as size and location of buildings and parking lots, exemptions of church interiors from landmark laws, alterations to historic structures, kosher slaughtering practices, uses of ceremonial wine, and congregations meeting in a storefront, basement, or residential home. City officials fear that RLUIPA will allow religious institutions to evade fire-safety, building code, and accessibility laws; environmentalists fear that religious groups will seek exemptions from environmental standards; and children's advocates fear that religious day-care centers and schools might not comply with codes. Religious leaders fear state laws and local ordinances that intrude upon their religious beliefs, such as state laws that would require Roman Catholic institutions to provide contraceptive services and medications such as morning-after pills to female employees. Religious institutions advocate and often get "conscience clauses" in st ate laws that permit them to opt out of certain legal rules. Opponents call these "refusal clauses," and Clinton's Equal Employment Opportunity Commission opined that such clauses violate federal anti-discrimination laws.
RLUIPA reflects a broader effort by congressional Republicans to protect not only religious groups but also private property against both federal and state power. Attempts in the Senate to enact, for example, a Citizens Access to Justice Act and a similar Private Property Rights Implementation Act were turned back. Essentially, Republicans have sought to constrain the socalled "resurgence of the states," (97) which they view as resurgent liberalism and even "grassroots tyranny," (98) by preempting objectionable state-local economic and social regulation and by giving citizens standing to sue state and local governments in federal court (even though this trend is being bucked by the U.S. Supreme Court). Whereas Democratic congressional majorities expanded citizens' standing to sue states and localities in federal courts on many civil-rights issues, such as racial, sexual, and disability discrimination, Republicans focus especially on protecting private property from government takings, particularly regulatory takings.
In a battle that pitted (1) Mothers Against Drunk Driving (MADD) and traffic-safety lobbyists against (2) alcohol and restaurant lobbyists, state and local interests (including the NGA), and Candace Lightener, MADD's founder, Congress embedded a national 0.08 percent blood-alcohol standard in a $58 billion transportation act as a condition of federal highway-aid. About 31 states used the more permissive 0.10 standard. States failing to enact the 0.08 standard will lose 2 percent of their federal highway-aid beginning in 2004, followed by 4 percent in 2005, 6 percent in 2006, and 8 percent in 2008. This would be costly to many states. Pennsylvania, for instance, could lose up to $47 million. (99) Any state enacting the standard by 2007 can, however, recover its lost aid.
Many state and local officials criticized the measure as another unwarranted intrusion into their sovereignty. Ligtener argued that the measure actually diverts attention "from measures that could make a real difference in improving traffic safety" (100) because most drunk-driving fatalities are caused by drivers with blood-alcohol levels much higher than 0.10. A better approach would be to crack down hard on drunk drivers. Some observers viewed the 0.08 standard as a product of the New Temperance Movement. "This is an emotional reaction. It makes it look as if the politicians are responding and doing something constructive." (101)
By summer 2001, members of Congress also battled over a bill to outlaw the interstate transportation of live chickens for cockfighting. Senator and former governor Zell Miller (D-GA) quipped in opposition to the bill: "This [bill] is not about cockfighting. It's about the proper role of the federal government....John Locke, Montesquieu, and Patrick Henrywould have said to leave policing chickens to state and local officials, and I do, too." (102)
A vexing issue for Senate Democrats is whether to reauthorize the six-state Northeast Dairy Compact, extend it to some neighboring states (especially New York and Pennsylvania), and allow formation of a new compact among southern states. Dairy compacts, which are interstate compacts under Article I, Section 10 of the U.S. Constitution, allow augmented price supports of dairy products. The Northeast Compact serves to increase the price that processors must pay dairy farmers for fluid milk in six New England states. The compact is strongly opposed by many large, midwestern dairy states, such as Wisconsin. However, Vermont Senator James M. Jeffords, who bolted from the Republican party in spring 2001 to become an independent and align with the Democrats, strongly supports the Northeast Dairy Compact, which is popular among small-dairy farmers in New England. Both parties are divided along regional lines on dairy compacts, but the Democrats must satisfy Jeffords' electoral needs in Vermont, which has 609,000 peop le and 295,000 cows. (103)
Jeffords left the GOP partly because the White House vowed to kill the compact in retaliation for Jeffords' wayward votes on Bush's budget proposals. Critics argue that dairy compacts are outdated relics of federal milk-price supports that date back to the 1930s. Federally set prices vary among regions because, prior to modern refrigeration, people needed locally produced milk because milk could not be transported long distances without spoiling. As a result, today, with refrigeration, dairy farmers in the regions best "suited to dairy farming [e.g., the Midwest] receive the lowest payments for their milk, and those from the least-efficient regions receive the highest. The system, by design, punishes efficient farmers and rewards inefficient ones." (104) In addition, given that the compact increases the cost of a gallon of milk by about five cents in the Northeast, the compact is, in effect, "a tax on food, and--since the poor devote the highest percentage of their income to food--extremely regressive." (105)
One significant 2002 issue will be reauthorization of the Temporary Assistance for Needy Families block grant, which expires on 30 September 2002. (106) Congress must also reauthorize child-care aid, food stamps, and transitional Medicaid for welfare recipients in the workforce. Pressure is building for certain changes in TANF, even though public officials have generally termed TANF a success. (107) Some proposals would broaden state activities funded by TANF; some would narrow them. Especially controversial was a proposal by President Bush to allow states to use TANF funds to pay for state tax credits to reward people who contribute to charities. Many Republicans express interest in stiffening work rules, increasing faith-based services, reducing out-of-wedlock births, encouraging marriage, promoting "responsible fatherhood," and reducing TANF funding. Many Democrats express interest in extending the five-year life-time limit on TANF benefits, exempting more recipients from the limit, maintaining TANF fundin g, and increasing education, training, benefits (e.g., child care and housing), and other services to help recipients obtain and retain jobs. Many state officials, concerned about privacy, want Congress to repeal PRWORA's requirement that states collect Social Security numbers on driver, recreational (e.g., hunting and fishing), and professional licenses, as well as divorce agreements and many other documents. This federal requirement is intended to strengthen child-support enforcement. Failure to do so subjects states to losses of TANF funds. Michigan filed suit in early 2001 to try to overturn the provision.
Although the poverty rate nationwide dropped from 15.1 percent in 1992 to 11.3 percent by 2000, the lowest level since 11.2 percent in 1974, signs of a national recession presaged a possible resurgence of citizens needing public assistance. States would, moreover, bear the full cost for individuals who have used up their five-year life-time TANF benefits. The number of welfare recipients had declined by nearly 60 percent from August 1996 to September 2000, although many states began to experience enrollment increases in late 2000. There are some 6.9 million fewer people on the rolls, and about 69 percent of the "leavers" left because they had a job or additional income. Overall, leavers who find work do about as well as low-income workers who were not on welfare, though leavers tend to have less stable work histories and more problems obtaining child care. Leavers tend to receive more public benefits, but many are either unaware of, or fail to obtain, available benefits, such as child-care subsidies, Medicai d, food stamps, and federal and state earned income tax credits.
States were concerned that Congress might cut the $16.5 billion TANF block-grant allocation even though Congress guaranteed funding through FY 2002. On average in mid-2000, there was a 30 percent surplus of funds in TANF, due mostly to the decline in welfare rolls. Only three states-. Connecticut, Illinois, and Maine-had spent all their TANF funds. At the other end, Utah still had 99 percent of its funds available. Efforts in Congress to cut TANF were thwarted in 1999 and 2000, but another program, the Social Services Block Grant (SSBG), was cut three times during the 19982000 budget cycles. Some states have sought to protect themselves against cuts by transferring TANF funds into the SSBG and the Childcare Development Fund. Such funds can be transferred back into TANF if necessary.
Critics charge that the states provide too little help to leavers for work training and child care, as well as benefits, such as Medicaid, food stamps, and earned income tax credits. Food Stamp participation, for example, has declined by about one-third since the start of TANF. Medicaid enrollment fell from 41.7 million in 1995 to 40.4 million by 1998.108 Unlike TANF, food stamps and Medicaid remain entitlements for qualified lowincome people. Although the declines in Food Stamp and Medicaid participation may be due partly to the robust 1995-2000 economy, the declines were due also to the "delinking" of Medicaid and other benefits from TANF. (109) Some Medicaid recipients were mistakenly dropped from Medicaid when they were dropped from state welfare roles. Medicaid became a separate application, sometimes with unclear eligibility rules, complicated forms, inconvenient office hours, and language barriers for non-English speakers. Some caseworkers, who focused on welfare-roll reduction, failed to inform recip ients of delinked benefits; other caseworkers, believing that Medicaid and food stamps were tied to TANF's work rules, delayed applications. In 1996, Congress had authorized $500 million in matching grants to help states manage delinking, but as of March 2000, states had spent only 30 percent of the money. However, states only had three years in which to expend the funds, although Congress did lift the deadline in 1999. Most states were reluctant to spend the money because it came with opaque federal instructions. Pennsylvania, for example, could not obtain clear federal guidance on whether it could use delinking funds to run television advertisements announcing Medicaid's availability. Nevertheless, increases in Medicaid enrollment became apparent by late 2000, partly from resolving delinking problems and partly from the slowing national economy.
To help stimulate compliance, the 1996 PRWORA, which established TANF, allows bonus payments to be made to states for high performance in four areas: (1) job placement and (2) job success (i.e., job retention and wage gains) for recipients and largest improvement in (3) job placement and (4) success. Some $200 million was awarded to 28 states in late 2000, and more performance areas were made eligible for bonuses: enrollments in Medicaid, S-CHIP, and Food Stamps, as well as family formation and child-care provision.
After five years of debate, Congress reauthorized the 1965 Older Americans Act that funds support programs, such as community-service jobs (Senior Community Service Employment Program), and nutrition programs, such as Meals on Wheels. In part, the debate pitted states against nonprofits, with Republicans seeking to turn the community-service jobs program over to the states. Republicans regarded the program, which gives part-time jobs to seniors, as a handout to liberal nonprofits, such as the American Association of Retired Persons and the National Council of Senior Citizens, whose leaders are sympathetic to Democrats. About 78 percent of funds for the program went to such advocacy groups, compared to 22 percent awarded to the states. Under the reauthorization, states will get 75 percent of the $35 million of new money, and nonprofits will get 25 percent. The remaining funds will be split 50-50, except that a "hold harmless" provision ensures that no state or nonprofit will receive less than what it received in FY 2000. The law also allows states to levy cost-sharing charges on seniors for certain services, such as homemaker assistance and respite care, but not for legal and ombudsman assistance.
The most recent data issued by the U.S. Bureau of the Census indicate that more than $1 of every $5 (20 percent) of state government revenues in 1998 came from the federal government. Federal aid to the states has hovered in the 20 percent to 23 percent range of state revenues for the past decade. In turn, about one-third of local government revenues were derived from state and federal sources in 1998.
In FY 2001, federal aid to state and local governments equaled about $316.3 billion, an 11.1 percent nominal increase and 7.8 constant-dollar increase over FY 2000. Federal aid in 2001 accounted for 17.0 percent of federal outlays (up from 15.9 percent in 2000) and 3.1 percent of gross domestic product (GDP). Consistent with the shift of federal policymaking from places to persons in recent decades (see Figure 1), (110) 63.1 percent (compared to 62.2 percent in 2000 and 31.8 percent in 1978) of all 2001 federal aid was dedicated for payments to individuals (e.g., Medicaid and social welfare). Medicaid, which accounts for more than 40 percent of federal aid, is the single largest grant program. The significant increases in federal aid (from $144.7 billion in 1990 to $215.9 billion in 1998 in inflation-adjusted dollars) that have occurred since 1988 have been driven mainly by these aid-to-persons programs, and they will continue to drive up federal aid for the foreseeable future. Hence, only 16.7 percent of fe deral aid in 2001 was available to states and localities for capital investment (compared to 23.5 percent in 1978), and only 20.2 percent (compared to 44.7 percent in 1978) was available for all remaining state and local government functions and operations.
Presidential Administration: Reaganesque Rockefellerism?
As a former governor, President Bush is likely to be attentive to state concerns, especially because, as one observer noted, Bush-along with Republican governors John Engler of Michigan, George Pataki of NewYork, and Tom Ridge of Pennsylvania, as well as former governors Tommy Thompson of Wisconsin (now secretary of the HHS) and Christine Whitman of New Jersey (now administrator of the EPA)-often sounds more like a Rockefeller Republican than a Reagan Republican. Unlike Reagan, who asserted in his 1981 inaugural that: "Government is not the solution to our problem; government is the problem," Bush and his gubernatorial friends display more faith in the efficacy of government, especially state government, much like the late Nelson A. Rockefeller, former governor of New York (1959-1973). "Though Reaganesque in their preference for low taxes, free trade, and less federal regulation, these highly popular [Bush] figures emulate Rockefeller's ambitious approach to problem-solving at the state level." (111) The NGA 's chairman, Governor Parris Glendening (D-MD), expressed confidence that the NGA would be "the most influential bipartisan organization in the country" with Bush in the White House. (112) In May 2001, though, Fortune magazine rated the NGA 21st of the 25 most powerful lobbying groups in Washington, down from position 12 in 1999. (113)
However, Bush must also accommodate his more conservative Reaganite constituency, and the conservative Federalist Society, for example, has a number of its members in prominent positions in his administration. (114) Furthermore, given the records of governors elected to the presidency (e.g., Jimmy Carter, Ronald Reagan, and Bill Clinton), Bush will not likely champion major state-friendly changes in federal-state relations, and states are unlikely to secure congressional passage of their major federalism bills, such as the proposed Federalism Accountability Act, Mandate Information Act, Regulatory Improvement Act, Regulatory Right-to-Know Act, and Truth in Regulating Act. Furthermore, unlike Gore, who "advocated the biggest increase in government spending since President Lyndon B. Johnson erected the Great Society 35 years ago," (115) some of which would have gone to state and local governments in the form of grants-in-aid, Bush's huge tax cut signaled his affinity with Newt Gingrich's philosophy of devoluti on "in which responsibility is returned to the individual" more than to state and local governments. (116)
Leftist proponents of local self-government foresee no devolution either. "When Washington speaks of devolution, it almost always means granting local governments more flexibility in complying with federal directives. That may be a step in the right direction, but it shouldn't be confused with granting local governments real policymaking authority....today, federal preemption is rapidly becoming the rule, not the exception." (117) Fearing that the Bush/Gingrich approach to devolving power to individuals and businesses, in part by preempting state and local regulatory powers, will enhance the ability of big businesses to run roughshod over local communities, these groups seek enhanced local power to battle large corporations, giant cable companies, huge outlet stores, and even the U.S. Postal Service, which often disregards local preferences and contributes to urban sprawl when building or expanding postal facilities. (118)
Bush's religious beliefs might also lead him to oppose certain state policies, such as physician-assisted suicide in Oregon and the medical use of marijuana approved in nine states (by voter initiative in eight states). Bush's faith-based social services initiative would pose numerous churchstate challenges for state and local governments, especially with RLUIPA in place, and possibly divert more federal money from those governments. Indeed, concern that Bush's moral stance could produce an aggressive federal government, a former Christian Coalition official commented: "Everyone assumed devolution... meant the absence of a government role. In fact, it means a continued presence." (119)
At best, Bush might, like Reagan, obtain more block grants. "There seems little prospect," for example, that Congress will give states and localities the sweeping discretion over the use of federal education funds that House Republicans have proposed. But there might be broad support for lumping the current array of federal education programs into a handful of categories within which recipients would have wide discretion in allocating federal funds. Democratic vice presidential candidate Sen. Joseph I. Lieberman has promoted such a plan." (120) Bush is also likely to press for more waivers and other flexibility for state and local implementation of federal programs. Democratic Governor Howard Dean of Vermont predicted "that the states will end up with more flexibility to manage Medicaid and other health and human service programs." (121)
Intergovernmental consultation might improve as well, in part because Bush's chief of staff, Andrew H. Card, Jr., who served in the Massachusetts House of Representatives (1975-1983) and Bush's OMB director, Mitchell E. Daniels Jr., developed good rapport with state and local officials when they served as directors of the White House Office of Intergovernmental Affairs under Reagan. Bush's intergovernmental director, Ruben Barrales, is a former member of the San Mateo County Board of Supervisors. Secretaries Thompson and Whitman are former governors; Secretary of Education Rod Paige was superintendent of Houston's schools; and Secretary of Transportation Norman Y. Mineta was a councilman and mayor of San Jose, California, before he was elected to the U.S. House where he was the principal supporter of increased state and local flexibility built into the Intermodal Surface Transportation Efficiency Act of 1991. However, Bush is not likely to revive the U.S. ACIR, given that, as governor, he vetoed a bill passed by the Texas legislature that would have revived and refunded the Texas ACIR. (122)
In a more general vein, Bush appointed a 22-member Interagency Working Group on Federalism to review and rewrite the standing executive order on federalism, which originated in the Reagan administration in October 1987. President Clinton had rejected that order and produced a new order in 1998 without consulting state and local officials. However, vigorous protests by state and local officials compelled Clinton to withdraw the order and to write a new, more Reagan-like order in consultation with state and local officials. These officials are concerned about Bush's desire to rewrite the order, although consultation was under way. Bush's order is likely to reassert some of the principles of Reagan's order. It might also provide for a federalism coordinator to facilitate federal-state conflict-resolution and easier state-local contact with federal agencies, establish an interagency committee on federalism, facilitate the issuance of waivers of federal law to states, and also emphasize regionalism. Rigid and exc essive regulatory activity by federal agencies continues to agitate state and local officials, and implementation of the Regulatory Flexibility Act of 1980 remains problematic. (123)
In May 2001, though, 26 federal grant-making agencies issued a plan to streamline the federal grants process in compliance with the 1999 Federal Financial Assistance Management Improvement Act, which requires the executive branch to develop a common application for different federal grant programs and uniform administrative rules for the federal government's 630-some grants-in-aid.
The administration may also seek to delegate more administration and enforcement responsibilities to the states. For example, Bush proposed in his FY 2002 budget to reduce enforcement staff in the EPA's Washington, D.C., and regional offices by 8 percent (270 positions) and to provide a $25 million grant for the states to carry out enforcement. Many Democrats in Congress oppose the proposal, arguing that it would weaken environmental-law enforcement. However, many analysts in recent years have advocated decentralization of natural-resource and environmental bureaucracies. (124) Critics of centralized regulation point to a number of problems, including ignorance of local ecosystems, unwieldy one-size-fits-all regulations, insufficient federal monitoring and enforcement capacity, corruption, weakening of local sources of capital, difficulties in enlisting the cooperation of local landowners, and ineffective "oversized" bureaucracy. (125) State enforcement of environmental laws can be effective, especially when state agencies align themselves with citizen groups that provide political support for enforcement. (126)
According to Barrales, President Bush
believes that the federal government must be more:
* Citizen-oriented, not bureaucracy-centered;
* Results-oriented, not process-oriented; and
* Market-based, actively promoting innovation and competition.
These principles are the hallmarks of the president's federalism agenda... President Bush believes that by devolving power and authority to the states--and ultimately to the people--we ensure that government programs are focused on the needs of our citizens. (127)
The U.S. Bureau of the Census reported in July 2001 that expenditures by state and local governments increased by 4.7% from 1997 to 1998 to a total of $1.5 trillion. State and local governments spent more than half of their revenues on four functions in 1998: education ($450 billion), public welfare ($205 billion), highways ($87 billion), and hospitals ($70 billion). State and local revenues (i.e., taxes, fees, and other monies) increased by 6.6 percent to $1.7 trillion in 1998. Taxes were the major source of revenue, with states collecting $160 billion in individual income taxes and $155 billion in general sales taxes. Local governments relied heavily on property taxes, collecting $219 billion in 1998.
Between 1990 and 1998, state government spending grew by 63 percent, from $572 billion to $930 billion, or 30 percent if adjusted for inflation, despite the fact that Republicans held 30 governorships and many state legislatures after 1994. As a result, the libertarian Cato Institute gave Republican governors only a slightly higher average grade (58 points or B) than Democratic governors (52 points or C) on its 2001 "Fiscal Policy Report Card." (128) At the same time, though, Cato concluded that: "We are now in the midst of the longest sustained run of net state tax cutting in American history, a run that began seven years ago." (129)
By summer 2001, however, state officials expressed increasing concern about the impact of the slowing national economy on state budgets. After enjoying some six years of budget surpluses, which allowed most states to increase programs, cut taxes, and squirrel money away in rainy-day funds, most states were facing revenue shortfalls. Many states were reducing expenditures in order to achieve year-end budget balances.
The state and local policy activism of recent decades continued to be evident in 2000-2001. For example, when the U.S. Senate held the first congressional hearing in July 2000 on the implications of genetic testing for employment and health insurance, more than half of the nation's workforce was already protected by such anti-discrimination legislation enacted in 21 states. The first law prohibiting discrimination against employees based on genetic testing was enacted by Wisconsin in 1991. As one reporter noted, "states and municipalities are taking the initiative in several areas of employment legislation: electronic monitoring of workers, raising wage levels, strengthening or weakening child labor laws, combating domestic violence at work, guaranteeing the right to breast-feed an infant, and protecting employers from liability for employment references given in good faith." (30)
In the face of high gasoline prices and consolidation in the petroleum industry, Maryland and Minnesota enacted minimum-markup laws similar to those in 12 other states. These laws are intended to prevent large corporations from destroying smaller businesses by selling gasoline at below cost. Large retailers such as Costco, Kroger's, Sam's Club, and Wal-Mart have often sought to sell gasoline at below cost as a loss leader to attract customers to their stores, thus depressing sales at nearby independent gas stations. A number of other states are considering such legislation.
States also react legislatively to U.S. Supreme Court decisions. After the Court struck down the federal Religious Freedom Restoration Act in 1997, seven states enacted equivalent statutes, and Alabama's voters approved a state constitutional amendment. (131) In the wake of the Court's striking down of portions of the federal Violence Against Women Act in 2000, several states began to consider gender violence acts of their own.
State policy activism, however, continues to face challenges from interest groups in federal courts. In 2000, for example, the U.S. Supreme Court let stand an appeals court ruling overturning Iowa's ATM law. The state was sued by Bank One for an ATM law that required banks wishing to install ATMs to submit an application, maintain a branch in Iowa, post their name and telephone number on ATMs, provide universal access, and ban surcharges. Cases against ATM laws in California and New Jersey are also before the courts. In 1999, NewJersey became the first state to ban trucks that do not have business in the state from the state's local roads. Some 135,000 large trucks pass through the Garden State each day, most on out-of-state business. Residents had complained about noise and safety hazards from big rigs using local roads as shortcuts or evasions of toll roads. The statute, which confines non-local trucks to interstate highways and the National Network, has been challenged by the American Trucking Association, which argues that the law violates the U.S. Constitution's interstate commerce and equal protection clauses.
In 2000, however, the U.S. Supreme Court declined to review a circuit-court ruling that upheld the authority of Newtown Township, Pennsylvania, to deny a permit to Omnipoint Communications to erect a wireless-telephone tower atop an apartment building. Supported by AT&T Wireless Services, Dobson Communications, Nextel Communications, SBC Wireless, and Spring Spectrum, Omnipoint had argued that the federal Telecommunications Act of 1996 preempts local governments from enacting laws that "prohibit or have the effect of prohibiting the provision of wireless services." But to win its lawsuit, said the appeals court, Omnipoint must show that the township was refusing to allow any cellular company to provide service in its area.
Meanwhile, the number of states considering legislation to regulate telecommunications technology in motor vehicles increased to 38 by 2001. Hand-held cell phones receive the most attention, but bills also address fax machines, computers, navigation devices, and emergency-response systems. New York banned the use of hand-held cell phones while driving, and several other states imposed restrictions. Two bills were introduced in Congress to reduce federal-aid highway funding to states that do not at least ban the use of hand-held cell phones while driving.
On another front, largely at the insistence of small livestock-farmers and meat-processors, about 26 states have readopted a program to inspect meat for in-state marketing. In recent decades, there has been a substantial concentration of ownership and capacity in the processing industry, with about 14 plants now processing some 63 percent of all steers and heifers in the United States and four plants processing more than half of all U.S. hogs. (132) The Wholesome Meat Inspection Act and the Wholesome Poultry Products Act of 1967 allow states to license and inspect processing plants so long as the state's standards are "at least equal to" the standards used by the U.S. Department of Agriculture's (USDA) Food Safety and Inspection Service for interstate plants. By the 1980s, however, nearly all states had ended their inspection programs either because they turned the responsibility over to the USDA to save money or because the USDA found that they did not meet federal standards. Although state meat inspectors now oversee about 3,000 small plants, these plants account for only about 7 percent of all U.S. meat and poultry products, (133) but small farmers are pressing for expansion so they can sell more of their homegrown meat and poultry directly to in-state consumers. U.S. Senate Majority Leader Tom Daschle (D-SD) has proposed a New Markets for State Inspected Meat Act that would allow state-inspected meat to be sold out of state so long as a state's inspection program meets federal standards and is integrated with the federal program.
The States as Innovators: Electricity Deregulation
In 1995, New Hampshire pioneered retail electricity deregulation, with California, Pennsylvania, and Rhode Island following in 1996. One ground for deregulation was set initially by the federal Public Utility Regulatory Policies Act of 1978, which allowed small power generators to sell power to the nation's regulated electric utilities. New technology, such as gas turbines, also enabled small firms to generate increasing amounts of electricity. Deregulation was then stimulated legally by the federal Energy Policy Act of 1992, which requires all utilities to share their wholesale transmission lines with other utilities. Entities that use large amounts of electricity thus began searching for cheaper power and pressing states to open their instate retail markets to competition. Some states phase deregulation in over a few years, others over a longer period. Consequently, competition in the wholesale electricity market is being driven by federal legislation, while competition in the retail market is being driven by state legislation, producing an increasingly disaggregated market of gencos (companies that generate power), transcos (companies that transmit power), and discos (companies that distribute power to users).
Deregulation proponents argue that by allowing consumers to choose their power source, like choosing their long-distance phone company, deregulation will lower prices, stimulate innovation, bring more power generators into the market, increase industry efficiency, and produce more "green power" (e.g., wind and solar power). Opponents argue that deregulation will benefit large consumers of electricity at the expense of small businesses and residential customers (especially rural and low-income customers), produce instability and supply problems, allow large power companies to drive out small ones, and undermine low prices already available in some states. Idaho and Wyoming, for example, have not been eager to deregulate because they already enjoy low rates. States with the historically highest electricity rates are leading deregulation. As of 2001, 24 states and D.C. had enacted deregulation statutes, with six more considering deregulation, and the U.S. Department of Energy estimated that a typical family of four will save $250 a year from deregulation. (134)
Meanwhile, local governments are concerned about possible reductions in revenues they receive from sales taxes on purchases from utilities and from utility franchise fees based on gross receipts. Local officials also wonder how they can tax power generators located outside of their state. In-state power generators will be disadvantaged if they must pay a tax not paid by out-of-state generators. Some states have enacted means for local governments to replace lost revenue; some, such as Arizona and Pennsylvania, "require as a condition of obtaining a certificate to sell power competitively, that suppliers agree to be subject to specific taxes such as sales or gross receipts taxes." (135) In addition, because electricity suppliers have little incentive to market to millions of residential customers, cities in some states, such as Ohio, have attempted to band together to create power pools that aggregate many residential and small-business customers under one huge contract, thus giving the pool leverage to bargai n for low rates. Utilities have opposed such pools and convinced many state legislatures to disallow or discourage them.
Electricity deregulation is so new and complex, however, that only small percentages of residential customers-from less than 1 percent in several states to about 10 percent in Pennsylvania-have thus far switched power companies. By the summer of 2000, moreover, rolling blackouts and brownouts in California suddenly made electricity deregulation a front-page issue. California-which had been viewed as a model and which had specifically sought to prevent such outages, in part because Sacramento and the Capitol building blacked out in August 1996 while the legislature was debating deregulation (136)-became a model of deregulation gone haywire. Yet, other deregulating states, while often experiencing problems, did not face crises, and the state most frequently held up as an example of deregulation done well was Pennsylvania.
Several factors converged to create California's crisis. The state's deregulation rules freed wholesale electricity prices but froze retail rates by cutting rates 10 percent and capping future rates. When wholesale prices soared nearly 900 percent in 2000, utilities could not recover costs from consumers under the low rate-caps, and state rules prevented utilities from entering long-term wholesale contracts to hedge against volatile prices. With low retail rates, consumers had less incentive to continue enhancing electricity conservation, a policy California had pursued vigorously. Demand for electricity began soaring in 1997 while in-state generating capacity declined. Despite population growth, no major power plant had been built in California in 30 years, a situation some critics attribute to California's strong "not in my backyard" (NIMBY) attitudes, stringent environmental rules, and regulatory overkill. However, lack of construction was also due overcapacity arising from conservation measures that had r educed the rate of increase in the need for more electricity and from the higher costs of overbuilt capacity compared to prices on the spot market. In addition, California compensated utilities generously for their "stranded costs," namely, assets such as large power plants constructed under state regulation. Furthermore, the state required new market-entrants to pay a part of those stranded costs, thus discouraging new utility companies from entering California. The state also required its privately owned utilities to sell off most of their power plants. Plants still owned by utilities had to sell all their electricity to a new Power Exchange (PX) created by California; then, in turn, utilities had to purchase electricity from the PX on a daily basis. This arrangement allowed out-of-state suppliers to bid up prices on the PX, leading Governor Davis to accuse them, with some justification, of profiteering. Other features of California's deregulation also created problems, leading most observers to conclude th at California had bungled deregulation by only partially deregulating.
Pennsylvania's deregulation unfolded differently, and by 2001, its residents had saved about $2.84 billion in electricity costs. The Keystone State did not require its privately owned utilities to sell their power plants and buy from a single PX, nor did it prevent utilities from entering longterm contracts. Also, it did not compensate its utilities for stranded costs as generously as California. Although Pennsylvania cut and capped retail rates too, its caps were higher than those in California, and most electricity suppliers have charged less than the cap. Pennsylvania also mounted a massive advertising campaign called ElectriChoice, which resulted in more Pennsylvanians switching power companies than residents in any other state. Pennsylvania also joined with neighboring mid-Atlantic states to form a large regional power-grid that allows utility companies to buy and sell electricity more easily and cheaply than those in California. As a result, Pennsylvania's deregulation produced more gencos and more com petition. Pennsylvania is the second largest producer of electricity in the United States; hence, it is an exporter of electricity and is expected to have 50 percent more capacity by 2006.
Since the summer of 2000, California has taken steps to resolve its problems and to learn lessons from more successful states like Pennsylvania. Both Clinton and Bush ultimately offered some federal assistance, and on 25 April 2001, the Federal Energy Regulatory Commission approved a limited form of wholesale electricity price controls for the Golden State. The first decade of the new millennium will, however, be one of uncertainty and surprises for many residential consumers of electricity as deregulation of the $217 billion U.S. electricity market shakes out and as states revise their plans as they learn from each other.
Most states oppose federal intervention to deregulate electricity nationwide. President Clinton had proposed legislation that would have required all states to deregulate electricity retailing, as 24 states have already done, and to guarantee that consumers have the choice of at least two gencos. The bill would have increased FERC's authority over the nation's power grid, established an Electric Reliability Organization to maintain capacity, created a fund to subsidize rural and small-town consumers hit by price hikes under deregulation, and required at least 7.5 percent of electricity to be generated from "non-hydroelectric renewable sources" (e.g., wind power). Instead of federal preemption, states have sought federal cooperation in relevant areas.
For example, as a result of California's crisis, which affected prices in neighboring states and angered those states, governors in the West, acting jointly through the Western Governors' Association, insist that states continue to play a key role in electric power decisions, that Congress permit states to establish regional mechanisms to make regional policy choices, and that the federal government cooperate with the states to solve energy problems. The governors rejected "as unwarranted and inappropriate, proposals to grant the Federal Energy Regulatory Commission (FERC) the power of eminent domain for transmission facilities" and declared that "existing authority of states over retail electric power sales must be retained and all transmission to and from any retail entity should remain subject to the jurisdiction of the state."' (137) The WGA also signed a memorandum of understanding with heads of the President's Council on Environmental Quality, the EPA, and the Departments of Agriculture, Energy, and the Interior to work cooperatively on short- and long-term energy problems.
Prescription-drug benefits, especially for senior citizens, was a prominent issue in the 2000 election. Lost in the debate, however, was that 21 states had already enacted pharmaceutical assistance programs, mostly for seniors, but with four states offering assistance to low-income, uninsured residents of all ages. (138) In 2000, Maine enacted the most radical plan, the Maine Rx Program, which authorizes the state to impose price controls on prescription drugs sold in the Pine Tree State. Maine was concerned, among other things, about the number of its senior citizens who were traveling to neighboring Canada to fill their prescriptions. Claritan, for example, sold for $0.57 in Canada, compared to $1.94 in the United States, while Prilosec sold for $1.47 in Canada and $3.80 in Maine. The pharmaceutical industry filed suit against Maine, but a federal appeals court, citing Louis Brandeis's famous opinion about the states as "laboratories of democracy," (139) permitted implementation of the program while the lit igation is in process.
Interstate Activism: NAAG and NAIC
One exception to the rising Republican tide of the 1990s has been the National Association of Attorneys General (NAAG), sometimes disparaged by other state officials as the National Association of Aspiring Governors. NAAG, founded in 1907, remains predominantly Democratic, with 33 Democratic and 17 Republican AGs. During the Reagan years, NAAG increasingly pursued multi-state consumer lawsuits against corporations. (140) NAAG became especially prominent in November 1998 when it facilitated a settlement agreement between 46 state attorneys general and major tobacco companies requiring those companies to pay $246 billion to the states over 25 years in compensation for state health-care costs incurred from smoking-related illnesses. One study of this process found that "Democratic attorneys general did act on their political leanings sooner than Republicans." (141) States have been criticized for using the money for general budget and tax-relief purposes rather than for anti-smoking and smoking treatment progra ms. In 2001, states spent only about 5 percent of their tobacco-settlement money to reduce smoking. (142)
NAAG members are also pursuing health maintenance organizations (HMOs), but most highly publicized is the Microsoft anti-trust case. In June 2001, the U.S. Court of Appeals for the District of Columbia Circuit announced a unanimous 125-page ruling in the Microsoft anti-trust case. The Court set aside U.S. District Judge Thomas Penfield Jackson's June 2000 order that Microsoft be broken into two independent companies, but the circuit court concurred in Jackson's finding that Microsoft behaved monopolistically in the market for operating systems in ways that illegally stifle competition, and it ordered the case sent to a new trial judge. Microsoft was sued not only by the U.S. Department of Justice but also by 19 states and the District of Columbia. New Mexico reached a separate settlement with Microsoft in July 2001 and withdrew from the litigation, but the other states, led by Iowa's attorney general, Tom Miller, continued to pursue the case and opposed Microsoft's appeal of the circuit-court decision to the U.S. Supreme Court. Some state attorneys general fear that Microsoft's release of its newest Windows operating system in fall 2001 will enhance the company's monopoly position.
Critics of NAAG argue that it behaves like a cartel of government officials seeking to advance its own interests and fatten state treasuries by extracting enormous financial payments from corporations for their states and by enhancing the political profiles (e.g., gubernatorial aspirations) of its members. (143) Concern has been expressed as well that NAAG is circumventing democratic legislative processes and federalism's checks and balances by substituting regulation by litigation for regulation by legislation and, moreover, using mere threats of litigation to extort payments from corporations fearful of the costs and negative publicity of protracted court battles. (144) Such litigation often involves novel interpretations of tort law. In the Microsoft case, for example, attorneys general advanced the idea that each sale of Microsoft's Windows operating system violates state anti-trust law. If upheld by the courts, this idea could generate fines of as much as $100,000 for each copy of Windows sold in recent years. The attorneys general have also been criticized for retaining private contingency-fee lawyers to pursue their cases, sometimes selecting political friends and campaign donors. More than $10 billion has thus far been paid to contingency-fee attorneys from the tobacco settlement, thus creating the impression that the settlement transferred wealth from low- and middle-income smokers to wealthy trial lawyers. The increased cost of cigarettes necessitated by the settlement constituted a de facto regressive tax.
Another example of interstate activism arises not from state autonomy but from an effort to preserve state autonomy, in this case, in the field of insurance. In the McCarran-Ferguson Act of 1948, Congress explicitly preserved state regulation of insurance. In recent decades, however, Congress has threatened that autonomy as it has preempted large areas of state economic regulation in the face of globalization, free-trade agreements, and industry pressure. In its Financial Modernization Act of 1999, Congress dismantled Depression-era barriers between financial services so as to allow bank, securities, and insurance businesses to affiliate with each other. The law requires states to establish within three years reciprocal producer-licensing or uniform-law standards to regulate the licensing of insurance producers. If 12 states, territories, and commonwealths (e.g., Puerto Rico) do not enact reciprocity by 12 November 2002, the law will bring into existence a National Association of Registered Agents and Brokers , which will be a quasi-government body authorized to preempt state licensing laws. The National Association of [State] Insurance Commissioners (NAIC), therefore, has drafted a model state law on producer licensing and is requesting state legislatures to enact it. The National Insurance Producer Registry, an arm of NAIC, has established a Producer Information Network and a Producer Database that states can use to check producers' licenses and qualifications and also report violations. At the same time, NAIC has lobbied for passage of a bill in Congress to give states access to FBI criminal files on insurance agents and executives.
THE U.S. SUPREME COURT
The U.S. Supreme Court decided 85 cases during its 2000-2001 term. The leading federalism decisions were Board of Trustees of the University of Alabama v. Garrett (145) and Alexander v. Sandoval. (146)
Consistent with a trend that began in 1991, the Court's "Federalism Five"- Kennedy, O'Connor, Rehnquist, Scalia, and Thomas-continued their state-friendly jurisprudence during 2000-2001 by restraining federal power in important though not yet revolutionary ways. The Court has not overturned its 1985 Garcia decision in which it held that Congress can regulate the states through laws of general applicability and that states should rely on the national political process rather than on judicial enforcement of the Tenth Amendment to protect their powers against federal encroachments, (147) but the Court has increasingly ignored Garcia (148) by limiting federal authority and protecting or restoring state authority in seven basic ways. This line of jurisprudence has been sharply criticized by liberals, who have raised the cry of an "imperial judiciary," a cry once raised by conservatives when the Court was issuing liberal, nationalist decisions. As U.S. Senator Joseph Biden (D-DE), a critic of the Rehnquist Court, acknowledged, conservatives often accused liberal justices of imperialistic judicial activism, but now, "under this Supreme Court, the shoe is plainly on the other foot: It is now conservative judges who are supplanting the judgment of the people's representatives and substituting their own." (149)
1. Protecting the Republican Autonomy of State Polities
Justice O'Connor has articulated a "state autonomy" defense of federalism (150) based on the Tenth Amendment and the Constitution's republican guarantee clause. This clause (Art. IV, Sec. 4) states: "The United States shall guarantee to every state in this Union a Republican Form of Government." In O'Connor's view, the federal government cannot deprive citizens of their essential republican (i.e., democratic) right to make fundamental decisions about their state polity. She advanced this argument in Gregory v. Ashcroft in 1991, (151) which upheld a provision of the Missouri Constitution requiring state judges to retire at age 70 despite the federal Age Discrimination in Employment Act. O'Connor also recast the Tenth Amendment as a provision that does not protect traditional states' rights so much as it protects individuals' dual citizenship rights:
The Constitution divides authority between federal and state governments for the protection of individuals. State sovereignty is not just an end in itself: "Rather federalism secures to citizens the liberties that derive from the diffusion of sovereign power. (152)
However, O'Connor has not mustered majority support for her "state autonomy" argument; hence, it has not played a leading role in the Court's new federalism jurisprudence-although O'Connor herself is perhaps the most crucial player in this jurisprudence. (153)
2. Prohibiting Federal Conscription of State Officials
A second strategy is to prohibit Congress from conscripting or commandeering state and local officials to carry out federal laws. This doctrine was articulated in New York v. United States, (154) which declared unconstitutional the take-title provision of the Low-Level Radioactive Waste Disposal Act. The statute required states to dispose of low-level radioactive waste properly within their own borders or in other states through interstate compacts. Failure to do so by 1996 would have required state governments to take tide to such waste and be liable for harms caused by them. The Court held that Congress violated the Tenth Amendment by compelling states to enact such regulations.
O'Connor's state autonomy argument figured in this decision as well, but with a new twist. The take-title provision had been enacted as part of a compromise negotiated between the governors and the Congress. The majority opinion held that even though the take-title provision exemplified cooperative federalism, the governors lacked authority under the Tenth Amendment to surrender state sovereignty to the Congress and, thereby, sell out the citizenship rights of state taxpayers.
This anti-conscription doctrine was reaffirmed in Printz v. United States (155) wherein the Court struck down the interim provision in the Brady Handgun Control Act that required local law-enforcement officers to conduct background checks of handgun buyers. Justice Scalia delivered an opinion upholding dual sovereignty and protecting state sovereignty against congressional encroachments through liberal interpretations of the necessary and proper clause of the federal Constitution. However, the Court narrowed this doctrine somewhat in Reno v. Condon in 2000 by holding that the doctrine prohibits only federal laws that "require the States in their sovereign capacity to regulate their own citizens." (156)
3. Limiting the Federal Commerce Power
A new strategy not seen since 1936 emerged in United States v. Lopez (1995), (157) in which the Court struck down the Gun-Free School Zones Act of 1990 as an unconstitutional exercise of Congress's interstate commerce power. Reversing 60 years of precedent, the majority opined: "To uphold the Government's contentions here, we would have to pile inference upon inference in a manner that would bid fair to convert congressional authority under the Commerce Clause to a general police power of the sort retained by the States." Although the Court is unlikely to roll back federal economic regulation significantly, Lopez signaled the Court's readiness to prohibit regulation that unduly restricts state and local powers in areas not substantially related to interstate commerce. However, Congress, upon urging from President Clinton, resurrected the Gun-Free Schools Zones Act through the Omnibus Appropriations Act of 1996, wherein Congress sought to establish a firm legislative history for a substantial connection betwee n interstate commerce and guns in local schools. Whether congressional attempts to establish regulatory authority in such areas as guns in schools will, like plain statements of preemption, be upheld by the Court is uncertain, but so long as the five-member majority in Lopez remains on the bench, the Court is unlikely to ignore Lopez.
Indeed, again, in United States v. Morrison in 2000, (158) the Court struck down a provision of the Violence Against Women Act as an overreaching of Congress's commerce power. In enacting the law, Congress had asserted its power to enact the law under the interstate commerce clause because violence against women has impacts on the nation's economy. In a 2001 case raising a similar commerce issue, Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers, the Court narrowed the interstate reach of federal environmental law by opining that in the absence of clear congressional intent, the U.S. Clean Water Act does not allow federal officials to regulate self-contained ponds and wetlands located within only one state and not clearly tied to the nation's interstate streams, lakes, and other wetlands. (159) However, the Court did not directly decide whether the applicable provision of the Clean Air Act constituted an overreach of the commerce power. This case involved 23 communities that challenge d the Corps' authority to veto their plan to build an environmentally safe landfill on an abandoned sand-and-gravel pit in suburban Chicago. The Corps asserted authority when migratory birds were spotted around the site's seasonal ponds and puddles. The Court held that upholding the Corps "would result in a significant impingement of the States' traditional and primary power over land and water use.
4. Reasserting States' Sovereign Immunity
Equally striking has been the Court's reassertion of states' sovereign immunity under the Eleventh Amendment, which states: "The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State." In Seminole Tribe v. Florida in 1996, (160) the Court ruled that the Congress lacks authority to abrogate the states' sovereign immunity through laws enacted under the Congress's Article I powers.
The Court strengthened this doctrine in Alden v. Maine (1999) (161) by asserting that the states' sovereign immunity in any tribunal, including state courts, is an essential attribute of their sovereignty, which they retained when they entered the federal union, regardless of the federal Constitution's delegations of power to the Congress in Article I and to the federal courts in Article III. In this case, several state employees had sued Maine under the Fair Labor Standards Act (FLSA). They first sued in federal court, but after Seminole Tribe, they moved their case to state court. The U.S. Supreme Court, therefore, had to decide whether Congress's Article I powers allowed it to enact the FLSA provision authorizing private suits against states in their own courts. A "congressional power to authorize suits against States in their own courts," opined justice Kennedy, "would be even more offensive to state sovereignty than a power to authorize suits in a federal forum." (162)
The Court reached similar results in two 2001 cases. In Board of Trustees of the University of Alabama v. Garrett, the Court ruled that private parties cannot sue states for monetary damages for violations of the Americans with Disabilities Act. Congress, opined Chief Justice Rehnquist, did not identify a pattern of "irrational state discrimination" against disabled state workers to justify overriding states' sovereign immunity. However, as Justice Kennedy observed: "It must be noted. . . that what is in question is not whether the Congress, acting pursuant to a power granted to it by the Constitution, can compel the States to act. What is involved is only the question whether States can be subjected to liability suits brought not by the Federal Government . . . but by private persons seeking to collect moneys from the state treasury without the consent of the State.,, (163) Senator Patrick J. Leahy (D-VT) declared: "The Court today continued its assault. on the powers of the people...An unelected court has substituted itself for the people's elected representatives in Congress." (164) The states themselves were divided on this case. Fourteen states filed amicus briefs opposing Alabama.
In Alexander v. Sandoval, the Court held that private parties may not sue federally funded state agencies to enforce the "disparate-impact regulations" issued under Title VI of the Civil Rights Act of 1964. (165) Such regulations prohibit activities that have a disparate impact on racial minorities, even if there is no demonstration of intentional discrimination. In this case, Martha Sandoval had sued Alabama for failing to offer her a driver's license exam in Spanish. Again, the question was not the authority of the federal government to enforce such regulations. The Court simply limited private suits against the states. In the Sandoval case, moreover, Alabama had begun offering its driver's license test in Spanish, French, and five other languages after Sandoval had initially won a trial-court victory in 1998. Following the Supreme Court's Sandoval ruling reversing her lower court victories, Alabama Governor Don Siegelman said that Alabama would continue to offer the test in multiple languages.
5. Limiting Section 5 of the Fourteenth Amendment
In City of Boerne v. Flores (1997), (166) the Court struck down the federal Religious Freedom Restoration Act (RFRA). City of Boerne involved a church challenge under RFRA to the authority of its municipality to use its zoning power to prohibit the church to enlarge the size of its historic structure in an historic preservation zone. Many city officials opposed RFRA because it required them to demonstrate a "compelling interest" for restricting religious freedom-in the Boerne case, zoning for historic preservation. "The power to interpret the Constitution in a case or controversy remains in the judiciary," opined the Court. Congress cannot expand the scope of its enforcement power under Section 5 of the Fourteenth Amendment beyond the "congruence and proportionality between the injury to be prevented and remedied and the means adopted to that end" in legislation. Justice Kennedy termed RFRA a "considerable intrusion into the states' traditional prerogatives and general authority to regulate for the health and welfare of their citizens.
The Court reached similar conclusions in three later cases. In Florida Prepaid Postsecondary Education Expense Board v. College Savings Bank in 1999, (167) the Court held that the Patent Remedy Act was not valid under Section 5. The Court ruled similarly on the Age Discrimination in Employment Act in 2000. (168) In Board of Trustees of the University of Alabama v. Garrett (discussed above), the Court also held that Titles I and II of the Americans with Disabilities Act exceeded the Congress's Section 5 enforcement power.
6. Requiring Plain Statements by the Congress
A sixth strategy requires "express" or "plain statements" in statutes of Congress's intent to preempt state (and, thereby, local) authority (e.g., Gregory v. Ashcroft in 1991 (169)); to abrogate states' Eleventh Amendment immunity (Atascadero State Hospital v. Scanlon (170)); to permit civil-rights suits against state and local governments under 42 U.S.C. Section 1983 (Will v. Michigan Department of State Police (171)); and to attach conditions to grants-in-aid (Suter v. Artist (172)). These rules are limited in their constraints on Congress, however, because Congress can expand its power simply by "expressly" stating its intent to do so. As the Court opined in 1980, for example, "if Congress intends to impose a condition on a grant of federal moneys, it must do so unambiguously." (173) Ordinarily, this is not difficult for Congress to do.
7. Allowing States to be Laboratories of Democracy
Another strategy is a laboratories-of-democracy view of state and local powers, derived from Justice Louis D. Brandeis's famous 1932 opinion that "a single courageous state may, if its citizens choose, serve as a laboratory, and try social and economic experiments without risk to the rest of the country." (174) This strategy was well reflected in Vacco v. Quill (175) and Washington v. Glucksberg. (176) In these cases, the Court declined to recognize physician-assisted suicide as a fundamental right under the Fourteenth Amendment, thus upholding 49 state prohibitions of physician-assisted suicide. The Court did not deny that such a right might exist; it held instead that hitherto unrecognized Fourteenth Amendment rights must be deeply rooted in the nation's history, legal traditions, and moral practices, not in "the policy preferences of the members of this Court." Hence, the Court reserved to the 50 states the tasks of deciding whether physician-assisted suicide is to be recognized as a fundamental right and of experimenting with approaches to such a right. There is "no reason to think the democratic process will not strike the proper balance," wrote the majority in Glucksberg. To date, only Oregon permits limited physician-assisted suicide.
A corollary strategy is the Court's endorsement of "the new judicial federalism" (177) in Michigan v. Long, (178) which immunizes from federal judicial review state judicial and legislative expansions of individual rights protections based on "independent and adequate" state constitutional grounds that go beyond rights protections recognized by the U.S. Supreme Court under the U.S. Constitution. The Court has also protected state and local governments by showing greater deference to state-court proceedings under the abstention doctrine, by restricting the authority of federal judges to entertain habeas corpus claims from state and local prisoners, by upholding various types of state and local economic regulation, and by relaxing some federal court orders.
The above lines of jurisprudence, however, do not mean that the Court always or mostly favors state powers. In many areas of commerce, as well as civil rights, the Court still frequently limits state powers. In Crystal M. Ferguson v. City of Charleston in 2001, the Court held that a public hospital cannot test a pregnant woman for illegal-drug use and then give the results to the police without her consent. (179) The Court also ruled that police roadblocks set up to check drivers for drugs at random are unconstitutional; (180) a public school that allows civic groups and the public to use its facilities cannot discriminate against religious groups; (181) police use of a thermal imaging machine without a warrant on the home of a suspected marijuana grower is an unreasonable search in violation of the Fourth Amendment; (182) and the U.S. Controlled Substances Act contains no exception for private medical use of marijuana, (183) although initial reports suggest that state prosecutors are ignoring the ruling. (18 4) The Court struck down a Missouri law that directed the state's congressional delegation to support a constitutional amendment to limit congressional terms, and required ballots to label candidates for Congress as supporters or opponents of term limits. (185) Nine other states had a similar law. The Court also voided a 1996 federal law strongly supported by House Republicans that prohibited lawyers for the Legal Services Corporation (LSC), which provides legal aid to the poor, from challenging federal and state welfare laws in court. (186) The federal LSC gives grants ($330 million for 2001) to state and local legal-aid groups.
In Apprendi v. New Jersey, the Court struck down a New Jersey hate-crimes law that allowed a judge to increase a felon's prison sentence for conduct never reviewed by the jury. The decision could trigger thousands of appeals by state prisoners because its broader holding is that a judge cannot exceed the statutory maximum sentence stipulated for a particular crime by considering extra evidence such as motive, weapon used, or volume of drugs sold by the felon.
Finally, the Court's state-friendly federalism decisions have all been 5-4 rulings, and the number of such split rulings altogether during the 2000-2001 term was higher than that of any other term during the past decade. These 5-4 rulings reflect the ideological polarization that developed on the Court during the 1990s, a polarization that mirrors polarization between the president and the Congress and within the Congress since the mid-1980s, as well as in the electorate in 2000. (187) The Court's rulings affecting civil-rights laws, such as the 1999 Alden holding on the Fair Labor Standards Act, the 2000 Morrison decision on the VAWA, and the 2001 Garrett ruling on the Americans with Disabilities Act, have sparked considerable controversy generally, as well as alarm among groups that feel protected by such laws. Consequently, the future composition of the U.S. Supreme Court was an unusually prominent issue in the 2000 presidential election.
The persistence of the electoral college amid the 2000 election controversy illustrates the remarkable durability of basic constitutional features of American federalism over two centuries of political, economic, social, and cultural change. Forces for change are obliged to work within that constitutional structure, and the ways in which issues are raised and addressed are shaped by that structure. Yet, which issues are raised and how those issues are framed in policy debates also reshape and even warp that structure over time as forces for change seek strategic political opportunities to shift or share the locus of power over particular issues among the country's federal, state, and local governments. If, as David Easton argued, politics is ultimately about "the authoritative allocation of values for a society," (188) then, as policy debates in 2000-2001 clearly illustrated again, which government has authority makes a big difference in which values are advantaged or disadvantaged in the federal system. (189 ) Thus, at this point in history, for example, it is vitally important for pro-choice forces to maintain Roe v. Wade, while for pro-life forces, it is vitally important to shift at least part, if not all, of the locus of abortion authority to the states.
The policy debates in 2000-2001 and the presidential election itself also illustrated the continuing importance of political parties in the American system, although in ways different from the past. In previous eras when party power was rooted in the states and localities, especially urban county machines and rural courthouse gangs, both parties had strong incentives to maintain the structural integrity of the federal system against centralization. When this party structure collapsed during the 1960s and 1970s, however, so did the parties' incentives to resist centralization. Instead, the parties increasingly defined themselves ideologically and, in the face of the titanic national socio-political and cultural struggles of the 1960s and 1970s, realized that their electoral fortunes often lay more in shifting the locus of power to Washington, D.C., where they could centralize the allocation of their value preferences and impose those values nationwide rather than sustaining non-centralized allocations of value s through states and localities. Hence, virtually every domestic policy debate in Washington in 2000-2001 featured (1) partisan ideological differences, (2) issues that were once substantially or exclusively state and/or local concerns, (3) issues on which some or many state or local governments had already taken action, and (4) questions of how much or little power should be retained by state and local governments, and under what federal conditions. Although each party pays homage to "our federalism" and espouses "devolution," each party does so only on issues for which non-centralization can maximize its value preferences more than centralization. Thus in Washington, for example, most Democrats want to channel patient suits against HMOs into state courts; most Republicans want to channel patient suits against HMOs into federal courts.
The politics of federalism in 2000-2001 also illustrated continuation of the era of coercive or regulatory federalism, which began in the late 1960s. (190) This era has been marked by, among other things, unprecedented levels of federal preemption of state authority, statutory mandates on state and local governments, conditions attached to federal grants-in-aid, federal court orders on state and local institutions, nationalization of policies originated by states, federalization of state criminal law, usually in ways more punitive than state law, a shift in the composition of federal aid from places to persons, and increased use of tax credits and cuts rather than grants to promote federal social policies. The era has been coercive for state and local governments because both parties have sought to use federal power to liberate individuals from what they regard as the grassroots tyranny of state and local governments--with Democrats usually championing minority and women's rights and Republicans usually cham pioning taxpayers' and property owners' rights. Increasing awareness of spillover problems and global economic competition also augmented federal power as environmentalists, for example, sought to preempt lax state environmental regulation by enacting tougher federal regulations and as advocates of market liberalization sought to preempt excessive state economic regulation by enacting preemptive federal deregulation. The politics of the media augmented federal power, too, not only by focusing public attention on Washington but also by encouraging presidential candidates to highlight electorally appealing issues, such as crime, even though the bipartisan federalization of criminal law has made only a marginal contribution to crime reduction, federal officers have virtually no ability to stop the kinds of street crimes that must frighten citizens, federal prisons house only about 9 percent of the nation's prisoners, and civil liberties have been compromised by the double jeopardy posed by dual federal-state sta tutes covering the same offenses. The many bipartisan conditions of federal aid which have compelled states to imprison more individuals and for longer periods than ever and which have narrowed the sentencing discretion of judges and the parole discretion of states have apparently contributed to crime reduction, but at a large financial cost to states, a substantial liberty cost to minorities (i.e., about 65 percent of federal prisoners and 64 percent of state prisoners are black or Hispanic), and a cost to commonsense (e.g., prisons are fast becoming the nation's largest nursing homes).
Yet, developments in 2000-2001 also revealed both cracks and bifurcation in coercive federalism, presaging perhaps a long-term change. The U.S. Supreme Court continued its controversial state-friendly jurisprudence, albeit with narrow 5-4 decisions. The Unfunded Mandates Reform Act of 1995 continued to slow mandating, and concerns about the effectiveness of federal-state social programs such as welfare and Medicaid generated federal policies allowing state and local governments more discretion over implementation. At the same time, emphases on performance and its measurement placed greater pressure on state and local governments and could shift the system toward a more competitive federalism as federal officials and interest groups insist on publication of comparative performance measures (e.g., school test scores)--something strongly resisted by most state and local officials. Bifurcation between policymaking and policy implementation has also been evident. That is, while policymaking has been highly content ious between the parties and between federal and state-local elected officials, the intergovernmental implementation of policy has continued to be largely cooperative. Finally, the 2000 presidential election narrowly ratified the potentially state-friendly drift of the 1990s, though it did so only through that hoary old federalist institution--the electoral college.
[Figure 1 omitted]
(1.) John Kenneth White, "The Election in Perspective: Two Nations, Four Parties," Americas Choice 2000, ed. William Crotty (Boulder, CO: Westview Press, 2001); "Gore Concedes Election to Bush, Pledges to Support President-Elect," CQ Weekly Report 58 (16 December 2000): 2932.
(2.) Cited in Gloria Borger, "A diva for Democrats," US. News & World Report 130 (23 April 2001): 31.
(3.) See, for example, Martin P. Wattenberg, The Decline of American Political Parties (Cambridge, MA Harvard University Press, 1996).
(4.) Dan Balz, David Von Drehle, Susan Schmidt, and Roberto Suro, "What If?" Weskington Post National Weekly Edition, 12-18 February 2001, pp. 6-8.
(5.) Bush v. Gore. 148 L Ed 2d 388, 531 U.S._____ (2000).
(6.) Ibid., 420.
(7.) Ibid., 401.
(8.) E.J. Dionne, "Scrap This System," Washington Post, 9 November 2000, p. A29.
(9.) David Tell and William Kristol, "Gore's Spoiled Ballot," Weekly Standard, 20 November 2000, p. 9.
(10.) See E.J. Dionne and William Kristol, eds., Bush v. Gore: The Court Cases and the Commentary (Washington, DC: Brookings Institution Press, 2001).
(11.) Gallup Organization, 2000-2001, online at http://www.Gallup.com.
(12.) Robert S. Erikson, "The 2000 Presidential Election in Historical Perspective,' Political Science Quarterly 116 (Spring 2001): 29-52; Michael Nelson, ed., The Elections of 2000 (washington, DC: CQ Press, 2000); Gerald Pumper, et al., The Election 012000 (New York: Chatham House, 2001); Francis Fukuyama, "what Divides America?" Wall Street Journal, 15 November 2000, p. A26.
(13.) See, for example, Christopher Z. Mooney, "The Decline of Federalism and the Rise of Morality. Policy Conflict in the United States," Publius: The Journal of Federalism 30 (winter/spring 2000): 171-188.
(14.) 410 U.S. 113 (1973).
(15.) Quoted in "The supreme Court: Up in the air," The Economist, 1 July 2000, p. 17. See also, Edward walsh, "High Court, High Profile: Aging justices and close rulings energize partisans on both sides," Washington Post National Weekly Edition, 17 July 2000, p. 10; "Liberals Play Up Election's Impact on Supreme Court," CQ Weekly Report 58(9 September 2000): 2069-2071; Neil A. Lewis, "Presidential Candidates Differ Sharply on Judges They would Appoint to Top Courts," New York Times, 8 October 2000, p. 28; Jeffrey Rosen, "The Next Court," New York Times Magazine, 22 October 2000, pp. 74, 76-79.
(16.) Stenberg v. Carhart, 147 L Ed 2d 743, 530 U.S. ___ (2000).
(17.) Voter News Service, Exit Polls," 2000, online at http://www.cnn.com/ELECTION/2000/results/index.epolls.html.
(18.) John C. Green, James L. Guth, Lyman A. Kellstedt, and Corwin E. Smidt, "Faith in the Vote: Religiosity and the Presidential Election," Public Perspective 12 (March/April 2001): 34.
(19.) Bush v. Gore, 397.
(20.) Quoted in Christopher J. Gearon, "counting on Reform?" AARP Bulletin 42 (July-August 2001): 12.
(21.) See Ex Parle Siebold. 100 U.S. 383 (1880); United States v. Classic, 313 U.S. 320 (1941); Foster v. Love, 522 U.S. 69 (1997) for broad judicial interpretatins of federal power.
(22.) Article I, Section 4 states: "The Times. Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the congress may at any time by law make or alter such Regulations, except as to the Places of chusing Senators."
(23.) Christopher S. 'Kit' Bond, "'Motor Voter' Out of control," Washington Post National Weekly Edition, 2 July 2001, p. 26.
(24.) Quoted in Associated Press, "States seeking help with election changes," Express-Times (Easton), 10 July 2001, p. A-5.
(25.) Quoted in John Cochran, "congress Promises Action Soon To Fund voting System Upgrades, But Program Details Far from Resolved," CQ Weekly Report 59 (28 July 2001): 1843.
(26.) Gearon, "counting on Reform?" 12.
(27.) John Mintz and Peter Slevin, "The Florida Fiasco," Washington Post National Weekly Edition, 11.17 June 2001, pp. 6.7.
(28.) Bond, "'Motor Voter' Out of control," 26.
(29.) See, for example, Katharine Q. Seelye, "Election Reform, Meet Politics," New York Times, 4 March 2001, Sec. 4, pp. 1,5.
(30.) Akhil Reed Amar, The Electoral college, Unfair from Day One," New York Times, 9 November 2000, p. A23.
(31.) "Jonah Goldberg, "Pure democracy must bow to the democratic process," Express-Thnes (Easton), 24 November 2000, p. A-l1.
(32.) Nelson, ed., The Elections of 2000, p.81.
(33.) Ibid., 84.
(34.) Donald F. Kettl, "Which One Is Your Pal?" Governing 13 (August 2000): 12.
(35.) Thomas B. Edsall, "Bush Abandons 'Southern Strategy': Campaign Avoids Use of Polarizing Issues Employed by GOP Since Nixon's Time," Washington Post, 6 August 2000, p. A19; Michael Barone, "Rewriting history: Bush's vision could become the New Deal of the future," U.S. News & World Report 129 (14 August 2000): 24.
(36.) See, for example, David Frum, "Back to the 1880s," Weekly Standard 6 (4 December 2000): 12-14.
(37.) Quoted in Adriel Bettelheim, "State of the Presidency: what Bush Inherits," CQ Weekly Report 59 (20 January 2001): 165.
(38.) U.S. Congressional Budget Office, An Analysis of the President's Budget Proposals for Fiscal Year 1999 (Washington, DC: U.S. Government Printing Office, 1998).
(39.) Paul Teske and Andrey Kuljiev, "Federalism, Preemption, and Implementation of the 1996 Telecommunications Act," Publius: The Journal of Federalism 30 (winter/Spring 2000): 53-67.
(40.) Richard P. Nathan, "The Devolution Revolution: An Overview," Rockefeller Institute Bulletin 1996 (1996): 5-13.
(41.) Robert Pear," 40 States Forfeit Health Care Funds for Poor Children," New York Times, 24 September 2000, pp. 1 and 26.
(42.) Rebecca Adams, "Many States Failing to Insure Children," CQ Weekly Report 59 (12 August 2000): 1960.
(43.) Jonathan Walters, "CHIP on Their Shoulders," Governing 14 (November 2000): 12.
(44.) Jeff Glasser, "A new war over the nation's dirty water: EPA finds foes as it targets farms and sprawl," U.S. News & World Report 129 (l7 July 2000): 27.
(45.) Nebraska's legislature is unicameral and nonpartisan.
(45.) Bill Bradley, "More Than a Money Man," Washington Post National Weekly Edition, 29 January 2001, p. 26.
(47.) Paul C. Light, "Fed Bashing Out of Style," Government Executive (September 2000): 100. See also Paul C. Light, "Requiem for Reinvention," Government Executive (February 2001): 82.
(48.) Executive Memo, "Rego Rut," Government Executive (February 2001): 12.
(49.) H. George Fredrickson, "Lessons from Government Reform," PA Times 23 (July 2000): 8. See also Paul C. Light, The True Size of Government (Washington, DC: Brookings Institution Press, 1999).
(50.) Michael E. Kraft and Denise Scheberle, "Environmental Federalism at Decade's End: New Approaches and Strategies," Publius: The Journal of Federalism 28 (winter 1998): 131-146.
(51.) Bruce D. McDowell, "Advisory Commission on Intergovernmental Relations in 1996: The End of an Era," Publius: The Journal of Federalism 27 (Spring 1997): 111-127. See also, David Brunori, "Advice to the New Congress--Bring Back the ACIR," State Tax Notes 20 (l5 January 2001): 189-191; John Kincaid, "Reviving the ACIR would Be wonderful--But It's Unlikely," State Tax Notes 20 (29 January 2001): 335.
(52.) Jeff Glasser, "The case of the missing caps: The plan for 100,000 patrolmen is flat-footed," U.S. News & World Report 120 (17 July 2000): 22-23.
(53.) Gareth Davis, David B. Muhlhausen, Dexter Ingram, and Ralph Rector, The Facts About COPS: A Performance Overview of the Community Oriented Policing Services Program (Washington, DC: The Heritage Foundation, 25 September 2000), p. 3.
(54.) Mary Guiden, "Medicaid needs surgery," State Government News 44 (April 2001): 25. See also, Saundra K. Schneider, "Medicaid Section 1115 Waivers: Shifting Health Care Reform to the States," Publius: The Journal of Federalism 27 (Spring 1997): 89-109.
(55.) See also, Richard L. Cole, Rodney V. Hissong, and Enid Arvidson, "Devolution: Where's the Revolution?" Publius: The Journal of Federalism 29 (Fall 1999): 99-112.
(56.) Robert Rector, "The Case for 'Strings Attached' welfare Reform," Madison Review 1 (Spring 1996): 14.
(57.) John Kincaid, "De Facto Devolution and Urban Defunding: The Priority of Persons Over Places," Journal of Urban Affairs 21 (Summer 1999): 144.
(58.) Paul Posner, "Unfunded Mandates Reform Act: 1996 and Beyond." Publius: The Journal of Federalism 27 (Spring 1997): 53-71.
(59.) See, for example, Sara Brazeal and Jeffrey Finkle, "Legislation opens new doors for economic revival," American City & County 116 (April 2001): 38-42.
(60.) Sarah F. Liebschutz, "Empowerment Zones and Enterprise Communities: Reinventing Federalism for Distressed Communities," Publius: The Journal of Federalism 25 (Summer 1995): 117-132.
(61.) During initial debate over Bush's budget, the liberal Center on Budget and Policy Priorities argued that if one subtracted defense spending and accounted for inflation and population growth, the 4 percent increase was actually a 4.7 percent decrease. The New York Times credited Bush with a 5.7 percent increase, while the Republican-controlled House Appropriations Committee concluded that Bush's budget represented a 2.5 percent increase. See Dana Milbank, 'The Budget Numbers Racket," Washington Post National Weekly Edition, 16-22 April 2001, p. 13.
(62.) Robin Toner, "Cutting a Rightward Path," New York Times, 4 March 2001, Sec. 4, p. 1.
(63.) Richard Aronson and vincent Munley, "Wealth-Transfer Taxes in U.S. Fiscal Federslism: A Levy Still in Need of Reform," Publius: The Journal of Federalism 31 (Summer 2001): 151-172.
(64.) For a related case, see Philip J. Grossman, "Fiscal Competition Among States in Australia: The Demise of Death Duties," Publius: The Journal of Federalism 20 (Fall 1990): 145-160.
(65.) David C. Powell, Internet Taxation and U.S. Intergovernmental Relations," Publius: The Journal of Federalism 30 (Winter/Spring 2000): 39-51.
(66.) Anon, "From the states," The Federalist, 17 August 2001, internet version.
(67.) Quoted in Stephen Norton, "Too Close to Call: State/Federal Relations," State Legislatures 27 (February 2001): 29.
(68.) See http://www.nga.org/nga/salestax/.
(69.) Adam D. Thierer, "The NGA's Misguided Plan to Tax the Internet and create a New National Sales Tax," The. Heritage Foundation Backgrounder, No. 13.13 (4 February 2000).
(70.) David Streitfeld, "where There's Smoke, There's Fire: Internet tobacco sales ignite a debate over taxes," Washington Post National Weekly Edition, 4 September 2000, p. 20.
(71.) Associated Press, "Libraries confused about compliance," Express-Times (Easton), 21 April 2001, p. B-3.
(72.) Jonathan Koppell, "The Internet May Consolidate Political Power, Not Erode It," Public Affairs Reports 41 (March 2000): 8-9.
(73.) Some 36 states permit charter schools; 33 states have open-enrollment laws; and 18 states mandate that students be able to enroll in schools outside of their home district.
(74.) Education Commission of the States, Building on Progress: How Ready Are States to Implement President Bush's Education Plan? A Status Report (Denver, CO: ECS, 2001).
(75.) Tom Brazaitis, "Education reform bill delivers much less than promised," Express-Times (Easton), 2 July 2001, p. A-7.
(76.) "Quoted in David Broder, "Critics should look beyond the vouchers," Express-Times (Easton), 29 January 2001, p. A-5.
(77.) "Richard Morin, "Moving to the Right: A new generation of African Americans holds conservative values," Washington Post National Weekly Edition, 25 June 2001, p. 34.
(78.) "See also, John Kincaid, "Is Education Too Intergovernmental?" Intergovernmental Perspective 18 (Winter 1992): 28-34.
(79.) Quoted in Norman Ornstein and John Fortier, "Bush and Gore: The States' Stake in November," State Legislatures 26 (September 2000): 15.
(80.) Carol Kocheisen, "EPA Proposes New Rules for Sanitary Sewer Overflows," Nation's Cities Weekly 24 (l5 January 2001): 2.
(81.) Laura Tangley, "To burn, or not to burn: Western fires reignite Smokey Bear debate," U.S. News & World Report 129 (21 August 2000): 54.
(82.) By early 2001, Arizona, California, Georgia, Illinois, Maine, Oklahoma, Texas, and Washington had enacted patients' bills of rights in various forms.
(83.) Robert Pear, "Bush Set to Back State Laws to Extend H.M.O. Patients' Rights," New York Times, 14 January 2001, p. 20.
(84.) Robert Pear, "States Ask Bush to Revoke Clinton's Medicaid Rules," New York Times, 25 February 2001, p. 17.
(85.) Calling the Shots (Washington, DC: National Academy Press, 2000).
(86.) For background, see Susan Gluck Mezey, Pitiful Plaintiffs: Child Welfare Litigation and the Federal Courts (Pittsburgh, PA: University of Pittsburgh Press. 2000).
(87.) United States v. Morrison, 529 U.S. 508 (2000).
(88.) Chitra Ragavan, "Federally speaking, a fine kettle of fish: A new law is tying prosecutors in knots," U.S. News & World Report 129 (16 October 2000): 32.
(89.) Quoted in Associated Press, "Agent may face trial for Ruby Ridge," Express-Times (Easton), 6 June 2001, p. A-3.
(90.) Karen Ann Coburn, "Rehearsal for Terror," Governing 12 (February 1998): 22.
(92.) Trina R. Hembree, "Terrorism comes to America," State Government News 43 (August 2000): 29.
(93.) See, for example, U.S. General Accounting Office, Combating Terrorism: Federal Response Teams Provide Varied Capabilities; Opportunities Remain to Improve Coordination (washington, DC: GAO, November 2000).
(94.) 521 U.S. 507 (1997).
(95.) Quoted in Anon, "Church Expansion Protected by New Federal Law," The Insider 8 (October 2000): 24.
(96.) Quoted in Juan Otero, "Religious Liberty Act Becomes Law: Local Zoning Already Under Fire," Nation's Cities Weekly, 2 October 2000, p. 2.
(97.) Ann O'M. Bowman and Richard C. Kearney, The Resurgence of the States (Englewood Cliffs, NJ: Prentice-Hall, 1986).
(98.) Clint Bolick, Grassroots Tyranny (Washington, DC: Cato Institute, 1993).
(99.) Knight Ridder, "Congress cracks down on drunken driving," Express-Times (Easton), 7 October 2000, p. A-3.
(100.) Quoted in Froma Harrop, "Lower limit won't stop drunken driving," Express-Times (Easton), 10 October 2000, p. A-9.
(102.) Quoted in Anon, "But How Would Rousseau Feel?" The New Republic 225 (13 August 2001): 9.
(103.) Julie Hirschfeld Davis with Suzanne Dougherty, "Spilled Milk in Vermont," CQ Weekly Report 59 (25 May 2001): 1247.
(104.) Jonathan Chait, "Spilled Milk: Jeffords, dairy socialist," The New Republic 224 (11 June 2001): 23.
(105.) Ibid. See also, Bill Cahir, "U.S. Senate shouldn't cry over spilt milk," Express-Times (Easton), 12 June 2001, p. A-8.
(106.) For background, see Sanford F. Schram and Samuel H. Beer, eds., "Welfare Reform in the United States: A Race to tise Bottom?" Publius: The Journal of Federalism 28 (Summer 1998): entire issue.
(107.) For an interim assessment, see Jack Tweedie, "From D.C. to Little Rock: welfare Reform at Mid Term." Publius: The Journal of Federalism 30 (Winter/Spring 2000): 69-97.
(108.) David Nather, "The Medicaid-Welfare Trap." CQ Weekly Report 58 (9 September 2000): 2060-2008.
(109.) Frank J. Thompson and Thomas L. Gais, "Federalism and the Safety Net: Delinkage and Participation Rates," Publius: The Journal of Federalism 30 (Winter/Spring 2000): 119-142.
(110.) See for example, Kincaid, "De Facto Devolution and Urban Defunding," 135-167.
(111.) Richard Norton Smith, "Rockefeller Republicans, in All but Name," New York Times, 16 July 2000, Sec. 4, p. 15
(112.) Quoted in David Broder, "Governors still possess clout," Express-Times (Easton), 5 March 2001, p. A-7.
(113.) Jeffrey H. Birnbaum, "Fat & Happy in D.C.," Fortune 143 (28 May 2001): 95.
(114.) Thomas B. Edsall, "The Force Is Within Them," Washington Post Notional Weekly Edition, 23-29 April 2001, p. 14.
(115.) Glenn Kessler, "A Fork in the Road: The prospect of big surpluses turns this year's election into a referendum on the federal role," Washington Post National Weekly Edition, 9 October 2000, p. 11.
(116.) Newt Gingrich, To Renew America (New York: Harper/Collins, 1995), p. 105.
(117.) David Morris, "A Devolution Test for George W. Bush," New Rules (Spring 2001): 1. See also Jonathan Walters, "'Save Us From the States,'" Governing 14 (June 2001): 20-27.
(118.) Ellen Perlman, "The Imperial USPS: When it's time to build a new post office, towns often have little input," Governing 14 (February 2001): 18.
(119.) Quoted in Dana Milbank, "Fixing Families Is a Priority." Washington Post National Weekly Edition, 23-29 April 2001, p. 11.
(120.) Pat Towell and the CQ weekly Staff. "Finessing the Early Months," CQ Weekly Report 58 (16 December 2000): 2847.
(121.) Quoted in Robert Pear, "Shifting of Power from Washington is Seen Under Bush," New York Times, 7 January 2001, p. 1.
(122.) Richard L. cole, Personal communication to Author, 2 February 2001; Kincaid, "Reviving the ACIR would Be wonderful-But It's Unlikely."
(123.) See, for example, U.S. General Accounting Office, Regulatory Flexibility Act: Key Terms Still Need to be Clarified (Washington, DC: U.S. Government Printing Office, 24 April 2001).
(124.) See, for example, Lawrence S. Luton, The Politics of Garbage: A Community Perspective on Solid Waste Policy Making (Pittsburgh, PA: University of Pittsburgh Press, 1996); Helen Ingram and Stephen R. Smith, eds., Public Policy for Democracy (Washington, DC: Brookings Institution, 1993).
(125.) J. M. Baland and J. P. Platteau, Halting Degradation of Natural Resources: Is There a Role for Rural Communities? (Oxford: Clarendon Press, 1996); Paul C. Light, Thickening Government: Federal Hierarchy and the Diffusion of Accountability (Washington, DC: Brookings Institution, 1995).
(126.) Debra J. Davidson, "Federal Policy in Local Context: The Influence of Local State-Societal Relations on Endangered Species Act Implementation," Policy Studies Review 18 (Spring 2001): 213-240.
(127.) Ruben Barrales, "Federalism in the Bush Administration," Spectrum: The Journal of state Government 74 (Summer 2001): 6.
(128.) Stephen Moore and Stephen Slivinski, Fiscal Policy Report card on America's Governors: 2000, No. 391 (Washington, DC: Cato Institute, 12 February 2001), p. 4.
(129.) Ibid., 2.
(130.) Kirstin Downey Grimsley, "Where Congress Fears to Tread: State lawmakers are taking the initiative in settling employment and workplace policy," Washington Post National Weekly Edition, 21 August 2000, p. 18.
(131.) Bills were pending in nine other states. L. Cheryl Runyon, "Religious Land Use--State and Federal Legislation," Legisbrief 9:14 (March 2001): 2.
(132.) Brian Levy, "State Inspections Revive Local Markets," The New Rules (Spring 2001): 19.
(133.) Ibid., 21.
(134.) See http://www.hr.doc.gov.electric/summary.html/, 5 January 2000.
(135.) David Berry, "Local Impact of Electric Industry Restructuring," Public Management 81 (July/August):19.
(136.) Margaret Kriz, "Power Brokers," National Journal (30 November 1996):2597.
(137.) Anon, "Policy Resolutions Include Energy Roadmap," Western Governors' Report (September 2001): 4.
(138.) Senior citizens are the principal target because while they make up 12 percent of the U.S. population, they consume about 37 percent of prescribed drugs, and Medicare does not cover prescription drugs.
(139.) New York Ice Co. v. Liebman, 285 U.S. 262 (1932); G. Alan Tarr, "Laboratories of Democracy? Brandeis, Federalism, and Scientific Management," Publius: The Journal of Federalism 31 (winter 2001): 37-46.
(140.) Joseph F. Zimmerman, "Interstate cooperation: The Roles of the State Attorneys General," Publius: The Journal of Federalism 28 (winter 1998): 71-89.
(141.) David W. Winder and James T. LaPlant, "State Lawsuits against 'Big Tobacco': A Test of Diffusion Theory," State and Local Government Review 32 (Spring 2000): 139.
(142.) "Saved by Smokers," The Economist 361 (24 November 2001): 33.
(143.) Cornell W Clayton, "Law, Politics and the New Federalism: State Attorneys General as National Policymakers," Review of Politics 56 (Fall 1994): 525-553.
(144.) Martha Derthick, "Federalism and the Polities of Tobacco," Publius: The Journal of Federalism 31 (Winter 2001): 47-63.
(145.) 121 S. Ct. 955 (2001).
(146.) 121 S. Ct. 1511 (2001).
(147.) Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528 (1985).
(148.) See Dan Schweitzer, "Federal Regulation of States and the Rehnquist Court: Continuing the 'Mend It, Don't End It' Approach in the 2000 Term," National Environmental Enforcement Journal 16 (June 2001): 3-8, and 16 (July 2001): 3-11; Timothy J. Conlan and Francois Vergniolle de Chantal, "The Rehnquist Court and Contemporary American Federalism," Political Science Quarterly 116 (Summer 2001): 253-275.
(149.) Quoted in E.J. Dionne, "The tables are turning at high court," Express-Times (Easton), 14 Ju1y 2000, pp. A-8 - A-9. See also Edward Walsh, "'Judicial Supremacy' at the High Court," Washington Post National Weekly Edition, 10 July 2000, pp. 30-31.
(150.) Deborah Jones Merritt, "The Guarantee Clause and State Autonomy: Federalism for a Third Century," Columbia Law Review 88 (Winter 1988): 1-97.
(151.) 5O1 U.S. 452 (1991).
(152.) Ibid., 459.
(153.) Jeffrey Rosen, "A Majority of One," New York Times Magazine (3 June 2001): 32-37, 64, 73.
(154.) 5O5 U.S. 144 (1992).
(155.) 521 U.S. 898 (1997).
(156.) Reno v. Condon, 528 U.s. 141, 151 (2000).
(157.) United Stales v. Lopez, 514 U.S. 549 (1995).
(158.) 529 U.S. 598 (2000).
(159.) 531 U.S. 159 (2001).
(160.) 517 U.S. 44 (1996).
(161.) 527 U.S. 706 (1999).
(162.) Ibid. 719.
(163.) Board of Trustees of the University of Alabama v. Garrett, 121 S. Ct. 955, 969 (2001).
(164.) Quoted in Elizabeth Palmer, "One Section of Disability Law Struck Down," CQ Weekly Report 59 (24 February 2001): 422.
(165.) 121 S. Ct. 1521 (2001).
(166.) 521 U.S. 507 (1997).
(167.) 527 U.S. 627 (1999).
(168.) Kimel v. Florida Board of Regents, 528 U.S. 62 (2000).
(169.) 501 U.S. 452 (1991).
(170.) 473 U.S. 234 (1985).
(171.) 491 U.S. 58 (1989).
(172.) 112 S. Ct. 1360 (1992).
(173.) Pennhurst State School and Hospital v. Halderman, 451 U.S. 1,7 (1980).
(174.) New York Ice Co. v. Liebman, 311 (1932).
(175.) 117 S. Ct. 2293 (1997).
(176.) 117 S. Ct. 2258 (1997).
(177) John Kincaid, "State Court Protections of Individual Rights Under State constitutions: The New Judicial Federalism," Journal of State Government 61 (September/October 1988): 163-169.
(178.) 459 U.S. 904 (1983).
(179.) Crystal M. Ferguson v. City of Charleston, 532 U.S. --, 149 L Ed 2d 205 (2001).
(180.) City of Indianapolis v. Edmond. 531 U.S. --, 148 L Ed 2d 333 (2000).
(181.) Good News Club v. Milford Central School, 533 U.S. --, 150 L Ed 2d 151 (2001).
(182.) Danny Lee Kyllo v. United States, 533 U.S. --, 150 L Ed 2d 94 (2001).
(183.) United States v. Oakland Cannabis Buyers' Cooperative and Jeffrey Jones, 532 U.S. --, 149 L Ed 2d 722 (2001).
(184.) Associated Press, "States ignoring marijuana ruling," Express-Times (Easton), l4 June 2001, p. A.3.
(185.) Cook v. Cralike, U.S. --, 146 L Ed 2d 479, 120 S Ct 1669 (2001).
(186.) Legal Services Corporation v. Velazquez. U.S. --, 146 L Ed Sd 459 (2001).
(187.) Corey Ditslear and Lawrence Baum, "Selection of Law clerks and Polarization in the U.S. Supreme Court," Journal of Politics 63 (August 2001):869-885.
(188.) David Easton, The Political System (New York: Alfred A. Knopf, 1953), p. 129.
(189.) John Kincaid, "Values and Value Tradeoffs in Federalism," Publius: The Journal of Federalism 25 (winter 1995):29-44.
(190.) John Kincaid, "From Cooperation to Coercion in American Federalism: Housing, Fragmentation and Preemption, 1780-1992," The Journal of Law & Politics 9 (Winter 1993): 333-430; U.S. Advisory commission on Intergovernmental Relations, Regulatory Federalism: Policy, Process, Impact, and Reform (Washington, DC: ACIR, 1984); U.S. Advisory Commission on Intergovernmental Relations, Federal Statutory Preemption of State and Local Authority: History, Inventory, and Issues (Washington, DC: ACIR, 1992).
John Kincaid is the Robert B. and Helen S. Meyner Professor of Government and Public Service and Director of the Meyner Center for the Study of State and Local Government at Lafayette College, Easton, Pennsylvania, and former executive director (1988-1994) of the U.S. Advisory Commission on Intergovernmental Relations. Most recently, he coedited with the late Daniel J. Elazar, The Covenant Connection: From Federal Theology to Modern Federalism (2000).
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