Recipe for Respect
Each branch of the federal government is housed in its own palace in Washington. The White House -- always surprisingly small to visitors -- is...
Each branch of the federal government is housed in its own palace in Washington. The White House -- always surprisingly small to visitors -- is lent grandeur by the open setting of the South Lawn, which hints at the expansive reach of an executive branch whose agencies are spread throughout the city and well into neighboring states. The long marble front of the U.S. Supreme Court stands careful watch, as often seems appropriate, over the Capitol dome that links the House and Senate chambers, located just across the street.
Tourists easily find these sites, even if visiting some of them has grown more difficult since 9/11. But they would be hard pressed to find any monumental building housing those other, equally important parts of the American system of government -- the states and localities. States, cities and counties all maintain offices within close proximity to federal decision makers. But they are just that -- offices in buildings shared with seafood restaurants, television networks and, of course, lobbyists for myriad private interests.
In some ways, this is understandable. Washington, after all, is the home of the federal government. It is a branch-office town for all other governments. Even so, the absence of a D.C. edifice to house state and local interests is more than a curiosity. It points up the inescapable fact that centralization of political power has left states and localities in a much-diminished political position. They have gradually come to be perceived by the Washington establishment as just another set of lobbyists, seeking favors and handouts whenever they can get them.
Increasingly, they don't get them at all: The amount of money coming their way out of Washington has remained essentially flat for two decades even as the number of federal mandates and preemptions continues to rise. This has become a matter of no small concern to state and local officials. The framers thought of federalism as one of the basic structural protections of government. Unless states and localities can regain some of the respect they once had in Washington, they won't provide much protection against the centralization of power.
Could they regain it? This may be the time to find out. January 2009 will bring Washington a new presidential administration working with a Congress dramatically changed from the institution of either the Clinton or Bush years. The nation's capital will be aching for new ideas. State and local leaders may be in a better position than anyone to provide them. While Congress and the president have been mired in stalemate for most of the past two decades, states and localities have been experimenting with new policies on subjects ranging from the environment to housing to higher education. They have something crucial to contribute at what may be a defining moment.
Many perceptive state and local leaders already are thinking about this. "We want the federal government to recognize that there are problems best solved at the state level," says Andrew Romanoff, speaker of the Colorado House. "Either give us the tools or remove the barriers so we can solve the problem. The worst thing the feds can do is say it's your problem and we're going to make it harder for you to solve it."
But to make their contribution, states and localities may need to rethink some strategies that have been second nature to them for a long time now. Not only are they saddled with a reputation as incessant supplicants, they often are considered complainers as well, more interested in blocking hostile initiatives than in laying the groundwork for significant change. Not that the complaints are always unreasonable. States and localities have had sound reasons to fight congressional proposals covering waterways regulation or challenging their taxing authority or imposing costly mandates. And sometimes they have managed, against formidable odds, to win their case.
In December, for example, the U.S. Department of Education opened up to all states the possibility of using a "growth model" to track student achievement under No Child Left Behind, which states and schools consider a more flexible approach than the one dictated by the original federal law. That same month, Congress gave back to governors clear authority over the National Guard during times of emergency, overturning a law passed a year earlier that had given the president much more control.
Still, there is no denying that years of damage control have left states and localities looking like one more self-interested part of the forever-maligned Washington lobbying community. And the idea that they come to the Capitol only to prevent defeat is too negative. So it's worth asking what would happen if, instead of spending most of their energy asking for money and balking at mandates and preemption, state and local officials shifted their agenda to stress their competence to handle more of the implementation and creation of domestic policy themselves. They have been implementing much of it anyway, but with the federal government frequently acting as an obstacle rather than as a partner. Could a revival of state and local power become something for the feds to endorse, rather than hinder? Instead of favor-seeking, states and localities could build a new political relationship with the federal government around an entirely different idea. It wouldn't be easy. But it may be possible.
It's not as if the representatives of state and local government in Washington haven't been thinking about ways to recover some influence. Some organizations, led by the National Association of Counties (NACo) and backed by the broad-based National Academy of Public Administration, want to create a new formal institution that would give state and local governments an official and ongoing role in the federal policy-making process. It wouldn't have a grand new building or be a full-fledged cabinet Department of Federalism, but something akin to the old White House Advisory Council on Intergovernmental Relations, which -- in the years before it became politicized and then abolished in 1996 -- provided a useful forum for top players from the federal branches to meet with governors, mayors and county officials to discuss which level of government was best suited to take on specific problems or needs.
Such a forum would be a start. There's no longer any congressional subcommittee concerned with the world of state and local government, and the White House Office of Intergovernmental Relations is mainly a political shop designed to sell administration policy to states and localities, rather than a conduit for taking their concerns into account. "Congress and the administration don't look at us as partners," says Larry Naake, executive director of NACo, "but as a political organization they can use or people trying to get handouts or money."
Both of the last two presidents had been governors, and both raised initial hopes that they would be sympathetic to state and local needs and concerns. George W. Bush, in particular, spent much of his six-year tenure as governor of Texas complaining about federal intrusion on states' rights. He appointed several of his former gubernatorial colleagues to cabinet positions. But any hopes for a new federal partnership under Bush have been systematically disabused. The No Child Left Behind education law and the REAL ID driver's license act are just the two most prominent examples of Washington placing new responsibilities on lower levels of government without providing adequate funds to support them. Congress has enacted more statutes preempting the powers of states and localities under Bush than under the previous three presidents, according to Joseph Zimmerman, a political scientist at SUNY-Albany. When Bill Clinton was president, the number of such laws averaged eight per year. Under Bush, the average has been 12.5.
The Bush years have represented not just increasing federal encroachment on state and local turf but a consistently adversarial approach to state policies the administration disagrees with. In a few instances, where the White House has supported a particular state policy, it has allowed federal waivers for experiment. Where there has been any dispute at all, however, the feds nearly always have tried to prevent states from acting. The most recent and best-publicized example was the Environmental Protection Agency's refusal to allow California and more than a dozen other states the authority to impose new regulations on vehicle emissions to curb greenhouse gases. But the administration also sued to block medical-marijuana statutes and physician-assisted suicide and sought to overturn the Florida Supreme Court's rulings in the case of comatose patient Terri Schiavo.
In addition to congressional action and legal challenges, there has been an onslaught of regulatory change that has caused headaches for states and localities. "What seems to be the case more and more in this administration is that preemptions and federal mandates may not just be coming out of Congress," says Texas state Senator Leticia Van de Putte. "Those may just be a preamble to rules and regulations that become egregious to the states."
SHARING THE CREDIT
During this presidential campaign year, many state and local officials are making familiar noises about trying to ensure that their issues are part of the national political dialogue. Cynthia McCollum, a member of the city council in Madison, Alabama, is president of the National League of Cities in 2008, and she is spending much of her time trying to persuade national candidates to pay attention to local issues. "We're not going to get everything we want and ask for," she concedes. But "if they at least understand the problems of cities and towns, we're ahead of the game."
Although presidential candidates make rote promises of inclusiveness and concern when seeking the endorsements of mayors and governors, these lower levels of government are no more likely to hear their issues raised as a serious part of the national debate than they have been at any time in the recent past. This is particularly true for cities. Republicans have little political reason to focus on issues affecting urban voters they know will not support them, and Democrats can win urban constituencies without making much extra effort to appease them. And it seems extremely unlikely that Democratic candidates will forsake the issues of Iraq and health care to deliver speeches on transportation funding. The states have a stronger claim on national presidential campaign attentions, but it may not be a sufficient one. "I shall redact mandates" is not a slogan destined to win a lot of votes for a presidential candidate.
But once the campaign is over, there will be a rare opportunity for state and local interests to seize the moment with a new approach. Call it credit-sharing. State and local leaders can make their pitch to members of Congress by offering a chance to cut them in on breakthrough initiatives being launched back home. Instead of asking for money or help with regulators, they can offer valuable publicity. They can make a legislator feel that her support was indispensable for getting a project underway -- without asking her to do much more than make a supportive statement and show up for the press conference. Being able to claim authorship of a popular program in the district or statewide could make up for a lot of federal nay-saying on other issues. It might even help to level the playing field with private-sector lobbyists who are able to buy their way to access through campaign contributions.
State and local governments are constantly talking up innovative programs they've devised that are being imitated across the nation. Why not package themselves as true "laboratories of democracy," able to run meaningful experiments in public policy at no cost to the federal treasury -- and able to offer Congress and the executive branch a chance to enjoy whatever degree of glory emerges?
Unorthodox as this approach might sound, it wouldn't necessarily be a hard sell. Intrusive as the Congress and the White House have been on many policy fronts, there has been little progress on some of the most important national issues, and this has left broad openings for states and localities to craft policy themselves. The absence of progress in Washington on immigration or health care, and the near-absence of it on environmental issues, has generated countless experiments in cities and state capitols across the country, typified, perhaps, by the decision of more than 700 local governments to abide by the Kyoto treaty despite its rejection at the national level. "I think there is the feeling among the governors now that they need to go it alone," says Ray Scheppach, of the National Governors Association, "because Washington has gotten so partisan and tied up in an international situation."
But there's more than one way to go it alone. The way things stand now, for example, many states are reacting to REAL ID by simply threatening to ignore it. Under a credit-sharing approach, one state might take the lead in designing a model for much tighter state-driven security in the issuance of driver's licenses. It isn't hard to envision such a tactic winning congressional blessing in advance. It's true that governors and state DMVs had been working on new, less onerous standards before REAL ID became law, but it's also true that a single state acting alone could move much faster than all the states trying to act collectively. The designated pioneer state might have produced a workable solution that other states could be moving to implement right now, rather than continuing to fight a rearguard action against the costs and regulatory restrictions of REAL ID.
This sort of thing actually happens quite often; it just occurs by happenstance, rather than coherent strategy. New York State moves against shady student loan practices, other states decide to follow, and then Congress moves in to claim a piece of the action with investigations and legislative remedies. But a great deal gets lost in the translation to federal law. No Child Left Behind, for instance, was clearly based on programs and ideas that were already being tried at the state level. But when the White House and Congress put their own stamp on school testing and accountability, they came up with a law that left states feeling cut out of the process and burdened with an enormous cost. Things might have played out differently if states had arranged not only to present their own initiatives upfront but to work harder at making Congress part of them.
Dick Nathan, of the Rockefeller Institute of Government, suggests that the historical pattern is "innovation in leading states, spreading to other states and eventually morphing into national policy." That was the case a century ago, with railroad regulation moving from Massachusetts to other states and finally to Washington. It's the case today, with Massachusetts, Vermont and Maine offering model attempts at providing or requiring universal health insurance. "From my years in the U.S. House, I know Congress tends to act after states lead," says Maine Governor John Baldacci. "That's why in Maine, we keep working on the important issue of affordable health care, although we know a national solution is key." All that credit-sharing might require would be a conscious commitment by states and localities to get out in front and do these things systematically, rather than randomly.
If states and localities are willing to put their vaunted flexibility to work -- while sharing pride of authorship rather than begging for federal dollars -- they can go a long way toward being taken seriously again as important partners in Washington. Imagine a relationship in which federal officials know they can turn to states or local governments as real partners ready for a challenge, rather than having to impose mandates, or withholding waivers until some form of policy blackmail is paid up. "We hope for a process where we're involved," says Larry Naake of the counties' association, "rather than, 'We want X number of dollars for this project.'"
The bottom line is that states and localities are going to be given more and more responsibilities whether they ask for them or not. They can take advantage of the coming opportunity to shape those responsibilities by coming to Congress and the administration first whenever it's appropriate, winning not only a federal imprimatur but negotiating points for other battles that are bound to come up for them in Washington.
There's always the risk that their federal counterparts will not act in good faith, that they will accept the proffered credit for state or local ideas but continue to pour on the costly and unfunded mandates. Federal officials are never going to be shy about imposing their will on states and localities. There's no way to force public-spirited federalism. But if the states react to federal arrogance in the posture of victims or supplicants, the problem will only get worse. All the evidence suggests that the time to try a new approach has arrived. In the words of Cynthia McCollum, the National League of Cities president, "We can't sit back and wait for them to come to us. We're going to be on offense and help them to help us."