Federalism, Anyone?

No Child Left Behind represents a major change in state-federal relations. But it may not be a good campaign issue for the president.
February 2004
Donald F. Kettl
By Donald F. Kettl  |  Columnist
Former dean of the School of Public Policy at the University of Maryland, and a nonresident senior fellow at the Volcker Alliance and the Brookings Institution

Federalism usually finds its way into presidential elections, but it rarely comes in through the front door. This year seems likely to follow the traditional pattern.

There are some important federalism issues to talk about, largely because of what has happened on the education battleground in the past four years. In the 2000 campaign, George W. Bush pledged to end the nation's "education recession." He said he would insist on tough performance standards from local schools and state school systems as a price for more federal aid. And he followed up, pushing his "No Child Left Behind" legislation through Congress his first year.

Proudly signing the bill a few months later, Bush told students and teachers in Hamilton, Ohio, that "no longer is it acceptable to hide poor performance." In exchange for more cash, the act required schools to provide rigorous documentation on what students were learning. Bush said the strategy had worked in Texas when he was governor--and that it would soon bring better results to schools around the country.

State and local officials soon discovered, however, that complying with the act would prove hugely expensive. In Reading, Pennsylvania, the local school district is suing the state because, it says, the testing requirements amount to a large unfunded mandate, in violation of federal law. Beyond the issue of money, leaders in several states are worrying that poor test scores might expose them to future legal challenges on the grounds that they are not providing adequate education. Meanwhile, testing experts worry that the states will try to game the system, and that the high-stakes tests could produce large, unmanageable shifts of students to high-scoring schools.

The No Child Left Behind Act may be the Bush administration's prize exhibit on devolution and federalism. But it may not be one that the president's campaign advisers will want to display too conspicuously. Even states that have been among those friendliest to the Republican president have balked at the NCLB price tag. In Utah, where Bush clobbered Al Gore in 2000, state officials are considering opting out of the entire program because of its cost.

But if the Bush administration shies away from boasting about NCLB as its gift to the states, it may not have much else to boast about. In general, the administration has opposed giving much flexibility to state and local governments. It has tried to block state efforts to buy prescription drugs in Canada. It joined with Congress to outflank state efforts to block spam e-mails.

Most of all, Bush's Environmental Protection Agency has resisted efforts by the states, especially in the Midwest and New England, to pursue tougher air pollution standards. It has not been entirely successful. In December, a three-judge federal district court sided with 12 states in their effort to overturn EPA's lenient "new source review" air quality regulations. That controversy is certain to remain alive all year.

Environmental policy might, in fact, be an effective federalism issue for the Democratic nominee to aim at Bush. The challengers for the Democratic nomination are already doing it. "I am horrified," Howard Dean says on his Web site, "by what the Bush administration is doing to our land, our air, and our water." John Kerry has pointed to "the Bush-Cheney administration, where special interests rule and the environment suffers." Richard Gephardt also is pushing for tougher enforcement.

Meanwhile, the courts have dealt a devolutionary wild card into the presidential race. In June, the U.S. Supreme Court struck down laws prohibiting sodomy. Five months later, the Massachusetts Supreme Judicial Court ruled that the state's ban on gay marriage was unconstitutional.

It will be impossible for the presidential nominees to avoid this issue. At the same time, it will be hard for the president to do much about it, since marriage rules are the responsibility of the states. The inevitable disputes--will states, for example, be forced to recognize gay marriages performed in other jurisdictions?--are ultimately going to be decided in the courts. Still, the inevitable questions in the presidential debates will force discussion of a quintessential issue of state-federal relations.

One federalism issue that seems to have cooled down a bit in the past year is federal support for Medicaid. In most states, Medicaid remains the fastest-growing budget item, and state officials are nervously eyeing growth trends that threaten to continue to outpace state revenues. But Congress has passed a law revising the Medicare system, and Bush will trumpet the partial prescription drug coverage provided under that law. The states will continue to struggle with huge cost increases for medical care for the poor and nursing home care for the elderly, but these issues are likely to be off the table for the campaign.

So from the point of view of state and local governments, No Child Left Behind looks like the issue to watch in the presidential politics of 2004. Federalism will yet again be at the core of the debate, but in a disguise that may muddy responsibility for results.