Policy Today convened its Federalism Roundtable II at NCSL's recent Annual Meeting in Boston. The conversation grew more serious as the participants spoke openly about the stakes involved.
Bill Pound: During our discussion in April we talked a lot about things that were wrong: complaints about the current federal system, preemption, unfunded mandates and a variety of other things that angered legislators. Then Senator Moore posed the question to us in an email, "Well, what can be done about it?" I think that fundamental question lead us to this point today.
Senator Richard Moore: I don't know if there really is an opportunity to forge some kind of a game plan about how to rebalance the federal system. A stronger unfunded mandate law is needed, if we can amend it to put more teeth into it. A constitutional amendment is a lot more difficult to implement. It seems to me that we should have some kind of strategy to strengthen the relationship and put more weight on the state side.
Senator Libby Mitchell: I was struck by earlier comments about the view of federalism in the 1950s—the federal government correcting civil rights failures in the states. I went to law school late in life, and I remember struggling with the concept with my young classmates. Although I had been a state legislator for several years, I still saw the need for somebody to look at the country as a whole. Sometimes no matter how well-informed and intentioned we are, we tend to be a little parochial. There is this tension there, and I like the tension. On the other hand I think the system is very much broken.
If states are to exercise influence on Washington, we have to speak together with a stronger voice. Many of our resolutions you could drive a truck through. Court challenges have worked but they're expensive, slow, and they don't always work. We've also done some more proactive things. We've gotten 30 other states to monitor climate change, saying, "OK, you're not doing it on the federal level. We're concerned about global warming, so, we're joining with each other to fight it."
I see two things: court challenges, because they're effective; and joining together, because I do think there's safety in numbers.
Dan Schwartz: One comment I've heard is, "Congress treats the states as lobbying groups, no different than NAM." That's one of the real issues here.
Senator David Williams: First we need to understand the organization we're trying to influence. Congress has gotten so large and specialized with respect to staff. On the other hand, we're all generalists. We might specialize a little bit, but we generally have to know every piece of legislation that we vote on. Many of these people don't look at legislation unless it's in their particular field, so we can send resolutions and lobby all we want. They're still going to get out their vote sheets from their leadership offices on how most people are voting. Unless they have some sort of particular knowledge, they're not going to take time away from their specialty.
Senator Steve Saland: I think Senator Williams described the system that has long been the practice of NCSL on particular issues. If you could find the right state legislator(s) to touch base with particularly critical members of the House or Senate, those are the people who could play a part in bringing the states' voice to the fore.
Speaker Joe Hackney: NCSL has been constrained, as Senator Mitchell said, by what we can get three-fourths of the states to agree on. On some issues it's easy; on others it's hard. But I think, generally, the states just haven't been very aggressive about this. I know that…I talked to my congressman about it…but I really don't threaten.
Senator Leticia Van de Putte: If we can't even begin a dialogue, what does that say? You've got to have the will; that's the first thing. There are so many other fires that legislators have to put out. The number one most powerful thing is the will to intervene. We can all complain about it, but what are you willing to risk to really change things?
If you do reach that level of collective will in the states, to really heat on, you have to do it knowing the inherent risks. So I think, for me, it's the will, it's knowing what the risks are, and knowing that you can't act alone.
Speaker Joe Hackney: There's a good test of our will coming up: are you willing to make all the residents of your state get a passport to enter a federal building or get on an airplane? REAL ID might be the test.
Connecting the dots
Senator Stephen Saland: When people at the breakfast or dinner table discuss the issues, they discuss the economy, international affairs and the burden of taxes—I doubt that any of them talk about federalism. There's simply no great public groundswell, compounded with the fact that very few educational systems are doing an adequate job of teaching civics these days.
The practical questions are not really political. The question is, "How do you take an esoteric but critical issue and make sense of it for people?" How do you market an issue that really has no great political sex appeal, and yet is absolutely critical—not merely historically, but in the future?
I don't think anyone has an answer per se. I think we recognize the enormity of the problem. We have to explain to the public that this is important.
Senator Richard Moore: I think it would be helpful if we were to calculate the shift of the tax burden in order to tell people, "Look, REAL ID or No Child Left Behind is going to cost each state X-millions of dollars." I just think that the concepts are lost on the average person unless you can tie it to something tangible. At the moment, they never really see it because it's built into the budget of the legislature. Later on, they end up blaming us for spending money on things they didn't want.
Senator Steve Saland: But we can't respond ad hoc or episodically. Certainly there are things that we should concede to the federal realm. There are other issues that garner attention from the feds only because they are in the public eye. But if you could prevail in the argument that this is a waste of taxpayer money, the subject would gain traction with people. We all have the same taxpayers, paying out of one pocket to different levels of government. There should be a division of the responsibility for labor that benefits the taxpayers the best. I think that would make most taxpayers say, "Wait a minute, that's something to think about."
Senator Stephen Morris: This morning, someone was talking about the bridge collapse in Minnesota. I'm assuming that the federal government will become more engaged on infrastructure issues than it has been in the past. Let's just take PayGo in relation to the problems with infrastructure; it puts an entirely different spin on our relationship with Congress.
Finding the will to act
Dan Schwartz: If you can connect the dots for the electorate, as you're all suggesting, then people will begin to understand. The question then becomes, "How hard are you willing to fight and how much are you willing to commit to that process?"
Senator Libby Mitchell: Basically, that's one level of discussion. But this organization [NCSL] could focus more laser-like on specific unfunded mandates, for example.
Somehow we have to create this nexus—what are those areas of agreement? I think you have to find the keys to those few things—not everything in the universe—that we can agree on that make life better for the states and federal government.
Representative Sharon Tomiko Santos: I'm sort of captured by the idea that Speaker Hackney and Senator Van De Putte crystallized for me: "Do we have the will to be more aggressive about our behavior? While we focus on our relationships with our partners in Congress, we cannot forget the principles of federalism, including the separation of powers.
The question that I have is, "How can we best communicate with our colleagues and pare down the list of issues to what's really important?" Moreover, how do we boil it down for our constituents? They're eventually going to hold somebody accountable and we need to convey to them what's going on. What does a federal mandate mean to us? When do we draw a line in the sand?
Check on unbalanced power
Senator David Williams: Who are you delivering this "message" to? You can't put things like this on the ballot because few people even understand "separation of powers." We can't wait until we have better civic education, and we can't call for another constitutional convention. The resolution to this is a political one and it has to come from politicians politicians because, in my opinion, it's going to require a larger, more thoughtful effort.
Senator Stephen Saland: When we're not in session, I spend 80-90% of my time in my district. When I'm speaking to a group, I say you should be asking your congressman about NCLB; you should be asking them why they did it and telling them that they should be providing you money. And I'm sure that many of them never do it, because they never see their congressman! I don't mean that disparagingly, it's just the reality of politics. They can reach me and all of their state legislators far more readily than they can reach their member of Congress.
Senator Richard Moore: One of the questions I'm sure all of us get is about immigration. I tell them that's really a federal issue, but they don't want to hear that. It sounds to them like you're passing the buck. Constituents want you to answer it even though you have limited authority. And so we get the bill for a federal program, and we get the blame, and certainly with REAL ID we'll get the blame because car registration is not seen as a federal issue.
My guess is that if you went out and asked people, "What's an unfunded mandate?" people wouldn't know. It's like infrastructure, it's never an easy thing to explain to people. I think that we've got to find issues that people can relate to. There's probably good potential with No Child Left Behind; that's something we can connect to the average family. Rather than the broader issue of "unfunded mandates," we should target a few that we can show a direct relationship to the reality that people experience on the ground.
Reaching the tipping point
Dan Schwartz: One of Senator Moore's sugge-stions was to get away from the academic and to talk about "how to" actually address the structural im-balance. Let's talk about a constitutional convention; let's talk about the Electoral College. The Electoral College is actually very interesting—state legislators actually have an unfettered right to nominate and appoint any elector they want.
Senator David Williams: You talk about "talking to our constituents," but our constituencies are very small. You would have to get a unified effort of public policy makers and state legislators to buy into this nation-wide, individually, and start communicating.
I'm talking about individual staffing responsibilities too. Many people who are in positions of leadership do not have the capacity to effectively communicate on a regular basis with their constituents. They don't have that capacity.
If you want a movement, the first people that you have to get on board are state legislators. When the Continental Congress happened, the equivalent of state representatives from the various legislative bodies came together and got the message out. You have to convince state legislators that they can really do something about it.
Senator Leticia Van De Putte: Constitutionally, yes, we know we've got the authority to get back into the Constitution, and a lot of people are fearful of the outcome of that. The original 13 states may have been diverse, but they are all located in the same area. There were commonalities then that aren't reflected in the reality of the United States today. We do have some things in common, but the way we do things is very different from state to state.
Each state has its tipping point though. For us, it was the Medicaid claw back and our governor vetoing the $400 million that we have to pay for it. For other states it's REAL ID. REAL ID may be the opportunity that our citizens need to get engaged, but only if we place the responsibility where it belongs.
You say, "What can we do? Hold a constitutional convention!" But it takes way more than I think we're able to muster on that. The Electoral College? We get a discussion on that every four years, and then that's it.
Senator David Williams: I would like to get a bunch of people together for a constitutional convention and see what might come out, but reality limits us on what we can do. We can lobby, form interstate compacts or go the litigation route. The most important thing is that we get some unity of purpose.
A sea change on the horizon
Bill Pound: In some ways, though, it's there now. REAL ID is the closest we've come in a really long time, there's a lot more defiance and people are saying, "No. We're not going to do it that way."
Senator David Williams: The time to talk about REAL ID is before it's implemented.
Senator Leticia Van De Putte: The heat is definitely high on this. But let's figure it out. What's the definition of a patriot? It's to keep your government in check.
Senator David Williams: For a variety of reasons, the popular mindset has become that the federal government is the only government. They're the Social Security people, they're the people that do law enforcement; they're the people that build the bridges.
What is really annoying is that they give you your allotment of federal highway funds and then they earmark the things so you can't build the highways that you need. That's the worst earmarking that goes on. And the bridges? How are we supposed to build bridges over the Ohio and Mississippi rivers with the cost of steel now? Yet they earmark money for little puddle jumpers here and there. We're faced with serious issues and we need a viable strategy to handle them.
- Leticia Van de Putte is the President of the National Conference of State Legislators and a member of the Texas State Senate.
- Joe Hackney is the Speaker of the North Carolina House of Representatives. He also serves as the Vice President of the National Conference of State Legislatures.
- David Williams is the President of the Kentucky State Senate, and serves as Chair of the Kentucky Committee on Committees, as well as Co-Chair of the Kentucky Legislative Research Commission.
- Richard Moore is a member of the Massachusetts State Senate. Prior to his current 11-year tenure, Moore served for 17 years in the Massachusetts House.
- Stephen Morris is the President of the Kansas State Senate. He has served in the Kansas Senate since 1992.
- Libby Mitchell is Maine's Senate Majority Leader. She also serves on the Board of Maine General Health and Jobs for Maine's Graduates.
- Steve Saland has been a member of the New York State Senate for 17 years, where he currently chairs both the Majority Steering Committee and the Senate Education Committee. He was the President of the NCSL from 2001-2002, and is currently a member of the Board of Directors of the NCSL Foundation for State Legislatures.
- Sharon Tomiko Santos is the Majority Whip in Washington State's House of Representatives. She has been a member of Washington's House for nine years.
- Bill Pound is the Executive Director of the National Conference of State Legislatures.
- Dan Schwartz is Policy Today's publisher.