Anya Sostek was a GOVERNING correspondentE-mail: email@example.com
The day after Christmas in 1998, President Clinton devoted his weekly radio address to one priority: drunken driving. Invoking the image of unopened Christmas presents for a child killed by an intoxicated driver, Clinton called passing a national standard of .08 for blood alcohol content "the most effective action we can take to make our roads safer."
In the address, Clinton recounted his meeting with Brenda Frazier, a Maryland woman whose 9-year-old daughter had been killed by a drunk driver with a blood alcohol content of exactly .08. At the time, only 16 states used .08 as their standard. To provide an incentive, Clinton announced that states would receive federal transportation money when they lowered their limit.
Two years later, things weren't going quite according to plan. Despite the incentives, 30 states still hadn't bitten on .08. So Congress took things a step further. Any state that didn't pass a .08 law would face the ultimate punishment: a reduction in the amount of its federal highway funds if the law was not passed by October 1, 2003.
Now that deadline is approaching, and 14 states still have their limit set at .10 (and two states--Massachusetts and Rhode Island--have .08 laws that do not comply with federal standards). Disgusted with federal heavy-handedness but ultimately unwilling to forsake millions in much-needed highway dollars, those states have exercised a time- honored power: waiting until the last minute. "There is an understanding that most states will do this, but for some not any sooner than they have to," says Jeanne Mejure, who analyzes drunk driving laws for the National Conference of State Legislatures.
In almost all of those states, legislators are fairly sure that .08 will be passed this year. But many of them are resentful. "The biggest reason I'm opposed is simply because Congress said you have to pass it," says Stewart Iverson, the Iowa Senate's majority leader. "If states want .08, that's fine. If Congress says you have to have it, they've overstepped their bounds."
In Iowa, legislators harbor additional resentment because a bill proposed last year that applied three tiers of graduated penalties based on BAC was first approved by the federal government, and then quickly rejected as not strict enough to qualify for the highway money. This year, a House-passed version with a provision that allows offenders to continue driving to work was also questionable for approval but seems to have qualified. "We cannot, in the legislature of a sovereign state, make a decision until we get a non-elected federal bureaucrat to agree with what the bill says," laments Iowa state Representative Todd Taylor. "Blackmailing by the feds has taken away representative government."
From the perspective of Mothers Against Drunk Driving, the cries of blackmail are just a smokescreen for the real reason that legislators are opposed: campaign contributions from the alcohol and restaurant industries. As Wendy Hamilton, MADD's national president, points out, states had two years to adopt .08 when the federal government was offering monetary incentives instead of sanctions, and they didn't pass it then either. "Their excuse has been that it's states' rights," Hamilton says. "What we've heard in the corridors is that it's the alcohol industry."
Of course, if states really don't want to pass .08, they can simply forgo the money. But the cost is fairly steep. In 2004, states will lose 2 percent of their highway money. That amount will increase by 2 percent per year until it reaches the maximum of 8 percent in 2007. For even a small state such as Iowa, that would amount to nearly $5 million in 2004 and almost $19 million in 2007. For New York, which passed the law this year, it would have meant $12 million next year and $49 million in 2007.
A few years ago, when states were flush with cash, it may have been politically and economically feasible. Now, however, in the era of multibillion-dollar budget deficits, states say they don't have a choice. "We have a responsibility to build our highways, too," says Iverson. "That becomes the fine line."
In fact, states already are losing out on highway money tied to a variety of other drunk-driving measures. Congress also has dictated that states must pass laws banning open containers and revoking driver's licenses for repeat DUI offenders. But the penalties for failure to implement these standards are different than those for .08. Instead of permanently losing money, states that don't comply have a portion of their highway construction money transferred to a fund to be used only for highway safety. Currently, 13 states have not passed open container laws; 18 have not passed license revocation.
By declining federal funds on those issues--and waiting until the last minute on .08--states argue that they are sending a message to Congress that they won't be pushed around. "We've been a state that's waited about to the deadline every time," says Brad Hutto, a South Carolina state senator. "You're starting to see a backlash now. If they go any further, you'll start to see a bigger backlash."
The mini-rebellion over .08 follows a tradition established in the 1970s and '80s when the feds required that states adopt the 55 miles- per-hour speed limit and raise the drinking age to 21 or face the withdrawal of federal highway money. To mitigate the impact of 55 m.p.h. speed limits without losing federal money, several states set their fines as low as $5.
South Dakota was angry enough about the drinking-age issue that the state sued then-Transportation Secretary Elizabeth Dole, claiming that the congressional mandate was unconstitutional. In 1987, the U.S. Supreme Court sided with the federal government, saying that it was constitutional for Congress to punish states by withholding money, as long as the funds withheld were related to the laws that states were required to pass. Since then, Congress has routinely doled out money with strings attached, on issues ranging from the Clean Air Act to the No Child Left Behind education reform law.
Advocates of .08 argue that waiting until the last minute to pass the bill is destructive, risking lives and costing states incentive money they would have received for passing it earlier. "What is the federal government going to do with the message?" says Loretta Weinberg, a New Jersey assemblywoman who has proposed .08 legislation for several years, with no results. "Why do we continue tilting at windmills?"
In a few instances, however, states have ended up getting their way. After 73 conservative freshmen U.S. House members were elected as part of the 1994 Republican revolution, Congress repealed the national maximum speed limit of 55 m.p.h. and the law requiring motorcycle helmets. South Carolina's Hutto hopes that the .08 law will eventually be repealed as well.
While many legislators cite congressional tactics as the main reason that they are opposed to .08 laws, others have another beef--they believe it's ineffective policy. "I think it's much ado about nothing," Hutto says. "I don't think you'll see any drop in the statistics going from .10 to .08--that's just not where the problem lies."
At first, the case for passing .08 seemed clear-cut. In 1998, when Clinton proposed the national standard, alcohol was involved in nearly 40 percent of fatal accidents and studies had determined that passing a .08 law would save 500 lives per year. In addition, medical evidence demonstrated that aspects of alcohol impairment such as decreased reaction time and coordination set in before .10. Furthermore, every other industrialized nation used a standard of .08 or lower. In 1999, however, as Congress was considering implementing sanctions, the U.S. General Accounting Office was asked to evaluate the evidence on .08. The final report blasted previous beliefs about .08. The GAO noted that most studies made no effort to distinguish the effect of .08 laws from other laws, such as license revocation, that may have been passed at the same time. The study cast doubt on any effectiveness of .08 laws on their own, saying they would only work in combination with other measures. Specifically, the report noted that "the conclusion that 500 to 600 fewer fatal crashes would occur annually if all states had .08 BAC laws is unfounded."
The report gave new life to opponents of the .08 law, including the liquor and restaurant industries. They charge that .08 laws would target social drinkers, making criminals out of innocent partygoers, burden law enforcement and depress sales. Advocates for .08 doubt that the law will have much of an effect on the restaurant industry. "I don't know anybody who stays home to cook because they're worried about having an extra glass of wine," Weinberg says. And from MADD's perspective, the social drinking argument is "foolish." On an empty stomach, a 170-pound man needs to drink five drinks in two hours to get to .08 and a 120-pound woman three drinks. ".08 isn't social drinking," says Hamilton of MADD. "That's slamming them down."
Some legislators acknowledge that despite questions about effectiveness, there are still benefits to passing the bill. In Rhode Island, the legislature passed a .08 bill last year, but because offenders were given civil and not criminal penalties, it did not pass federal muster. This year, the legislature is expected to pass the stricter bill. "I don't believe in it, but it doesn't hurt anything either," says state Representative Peter Palumbo. "If it brings some type of peace to those who have lost a loved one, it's worth passing as far as I'm concerned."