Thompson’s Federalism Accountability Act Passes Governmental Affairs Committee

Washington, DC — The Senate Governmental Affairs Committee today struck a blow to bring government closer to the people with approval of the Federalism Accountability Act, S. 1214, legislation which would impose accountability on Congress and the Executive Branch before they could override State and local law. The legislation, introduced by Senate Governmental Affairs Committee Chairman Fred Thompson (R-TN) on June10, 1999, was approved overwhelmingly by a bipartisan vote of 12 to 2.

“The Founding Fathers divided power between the federal government and the States to prevent abuses of power and because they knew that government closer to the people works best,” said Thompson. “This bill promotes the idea that important decisions that affect people?s daily lives should be made closer to home.

“This legislation also reminds us that even where the federal government has the constitutional authority to act, state governments may be better suited to address certain matters,” continued Thompson. “It forces Congress and the White House to seriously consider the consequences of preempting State and local law.”

S. 1214 also will ensure that agencies think carefully before overriding State or local law. A recent General Accounting Office (GAO) report shows that there has been gross noncompliance with a 1987 executive order directing federal agencies to prepare federalism assessments for actions that would preempt State and local laws. In a recent review of over 11,000 issued over a 3-year period, GAO found that the agencies had prepared only five federalism assessments under the executive order.

The Federalism Accountability Act would:

• Require Congress and agencies to issue an explicit statement of congressional or agency intent when they preempt State or local law, and if so, an explanation of the reasons for such preemption;

• Require each agency head to designate a federalism officer to implement the requirements of this legislation and to serve as a liaison to State and local officials;

• Require agencies early on to notify, consult with, and provide an opportunity for meaningful participation by State and local public officials that could potentially be affected by a rule;

• Require agencies to provide a federalism assessment for rules that have federalism impacts;

• Require the Congressional Budget Office (CBO) to compile a report on preemptions by federal rules, court decisions, and legislation;

• Amend the Government Performance and Results Act (GPRA) of 1993 to clarify that performance measures for State-administered grant programs are to be determined in consultation with public officials; and

• Amend the Unfunded Mandates Reform Act of 1995 to clarify that major new requirements imposed on States under entitlement authority are to be scored by CBO as unfunded mandates. It also would require that when Congress caps the federal share of an entitlement program, the Committee report and the accompanying CBO report must analyze whether the legislation includes new flexibility or whether there is existing flexibility to offset additional costs.

Several amendments were approved and incorporated in the final committee version of S. 1214. The approved amendments include:

Limited judicial review of agency federalism requirements and a provision exempting emergency regulations from the federalism assessment requirements (offered by Senator Thompson); and

Clarification that S. 1214 does not apply retroactively to existing rules and regulations (offered by Senator Lieberman).

This legislation was developed with representatives of the “Big 7” organizations representing State and local government, including the National Governors’ Association, the National Conference of State Legislatures, the Council of State Governments, the National League of Cities, the National Association of Counties, the U.S. Conference of Mayors, and the International City/County Management Association.

Cosponsors include Senators Carl Levin (D-MI), George Voinovich (R-OH), Chuck Robb (D-VA), Thad Cochran (R-MS), Blanche Lincoln (D-AR), Bill Roth (R-DE), John Breaux (D-LA), Mike Enzi (R-WY), Evan Bayh (D-IN), Susan Collins (R-ME) and Pete Domenici (R-NM).

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