Madates Forever

Congress promised to stop imposing mandates on states and localities without paying for them. But the temptation is irresistible.
August 2003
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

County commissioners in Utah are coming to grips with yet another expensive and unwanted demand from Washington. They are being ordered to buy new voting machines.

It's part of the well-intentioned "Help America Vote Act," passed to prevent a repeat of the 2000 election fiasco in Florida. And it sounds generous at first: The feds put up $1.5 billion nationwide for the new machines. But as happens most of the time, federal money won't come close to covering the cost.

Utah County, which contains Provo and is the second-largest jurisdiction in the state, learned in June that it would be billed $138,210 for new touch-screen voting technology. This news came just as county officials were placing hourly employees on mandatory one-day furloughs to save $200,000.

Utah County could refuse to purchase the new machines, but then it would likely lose all federal aid for voting reform and would still have to buy special audio devices for each of the county's 124 voting places to help visually impaired voters. As County Commissioner Steve White points out, that would be a huge expense and would help just 200 individuals among the county's 161,000 voters. Rather than face that "onerous burden," White says, the county is all but forced to go along with the mandate.

Like state and local officials all over the country, those in Utah County thought they had won the battle against such demands in 1995, when Congress passed the Unfunded Mandate Reform Act, a key element of House Speaker Newt Gingrich's "Contract with America." That act requires the Congressional Budget Office to report on any proposed bill that would impose at least a $50 million annual cost on state and local governments. The federal Office of Management and Budget reviews any proposed regulation that might impose costs of $100 million or more.

The act didn't specifically prohibit new unfunded mandates, but Gingrich and his colleagues believed that shining a bright light on the problem would make it harder to enact them. In fact, that has not been the case. Federal lawmakers have not lost their taste for taking stands and then passing the buck downward.

Nearly a decade ago, the federal government promised to pay 40 percent of the cost of the Disabilities Education Act, but its contribution has fallen between $10 billion and $25 billion short. More recently, the Bush administration has provided only a small fraction of the $3.5 billion it promised to deal with homeland security costs--and even the promised amount was more than $15 billion short of what governments claimed they needed. Most of all, however, state officials complain that the No Child Left Behind Act of 2001 has forced big expenditures for testing and other changes in the educational system. The act provides $29 billion, but states say their costs will be an additional $35 billion.

Counting all unfunded mandates together, the National Conference of State Legislatures estimates that states are out $95 billion each year, about as much as the total budget shortfall currently plaguing them.

What has happened since 1995 to derail the promise of mandate relief? After all, this was the one element of the Contract with America on which everyone seemed to agree.

To a certain extent, the problem is a high deductible. In the seven years that the Congressional Budget Office has been analyzing legislation to find mandates, its analysts have found only 42 items-- out of a total of 4,097, just 1 percent--that exceeded the $50 million threshold. The others are all exempt from the law. But their cumulative cost is significant.

Moreover, even if most of the mandates are small, it takes only one, such as No Child Left Behind, to create huge new costs. And there is at least one big one almost every year. In the first six years after mandate reform took effect, six federal rules crossed the $50 million threshold, all of them EPA rules setting new standards for landfills, drinking water, stormwater runoff and local incinerators. There is little support for mandate relief if it implies supporting arsenic in the water or toxic smoke in the air.

In the end, mandates are irresistible to the federal government for the same reason that parents prefer making teenagers mow the lawn instead of doing the job themselves. It's hugely attractive for governments to plant a new policy flag and leave the heavy lifting-- and the bill--to someone else. And on the more positive side, unfunded mandates are a means of pursuing national policy while leaving local governments some flexibility in executing it. In the case of Utah's voting machines, after all, the alternative to a mandate would be a rigid federal program turning local governments into branch offices of Washington. Congress doesn't want that; the locals would like it even less.

The truth is that unfunded mandates are never going to end. The question is how to set the balance between national goals and local choices. New mandates keep giving mandate opponents new ammunition. But pushing problems down the chain without paying for them isn't going to disappear from the arsenal of federal policy options.