Republican lawmakers in both the House and the Senate have fired the first shots in an upcoming battle to turn the Unfunded Mandates Reform Act into an insurmountable obstacle to legislation designed to address unmet needs. House Republicans fired first by launching a series of hearings, and Senate Republicans followed up with an under-the-radar section in the budget resolution that uses UMRA to make it harder to pass laws such as an increase in minimum wage or improvements in civil rights protections. The Government Accountability Office is expected to produce this month a report on its study of UMRA, requested by Sen. George Voinovich (R-OH) on the occasion of UMRA’s 10-year anniversary. The request for the study has been interpreted as a warning sign that Republicans and state and local government groups will seek to realize the original vision of UMRA: a “no money, no mandate” policy making important federal safeguards contingent on federal funding. Fortunately, the final version of UMRA ultimately only called for cost estimates and a parliamentary procedure in Congress that is rarely used. Two recent events in Congress confirm that suspicion: a hearing held March 8 before the House Government Reform Committee, and the passage on March 17 of the Senate budget resolution, which contains a measure that could be step one in the GOP’s UMRA reform plan. Government Reform Hearing The focus of the hearing was on developing recommendations for “strengthening” UMRA. Suggestions included lowering the cost threshold for mandates that fall under UMRA, conducting more research on the burden of federal mandates on state and local governments, and expanding UMRA to include categories now considered exempt, such as civil rights mandates and entitlements. The state and local governments who spoke at the hearing, all of whom were picked by Republican representatives, repeatedly demanded expansions of UMRA. They all reiterated the same point, that the states consider any federal mandate from the government that is not fully funded to be an unfunded mandate, whether or not it falls in the scope of UMRA. Most laws that include mandates fall below the UMRA threshold. State officials brought up a broad array of mandates exempt from UMRA which they believed were nonetheless mandates and unduly burdensome:

• The Help America Vote Act
• Clean Air Act
• Clean Water Act
• Medicaid
• Individuals with Disabilities Education Act

In preparation for the hearing, Government Reform Committee Chairman Tom Davis (R-VA) asked the National Association of Counties to provide a “snapshot survey” of the local costs of unfunded mandates. The survey found that for 30 counties, the three-year total cost of an average of six mandates is $1.5 billion dollars. If all federal mandates were included, NACo claims nationwide the cost of unfunded mandates could reach in the hundreds of billions. The survey was not scientific; it did not discount the costs of programs that counties would undertake even without the federal mandates, nor did the survey identify the benefits counties receive by linking to the federal government. Senate Budget Resolution Senate Republicans launched their own initiative to inflate UMRA, not with a hearing but with a sneak legislative attack. The Senate budget resolution contained a section, reportedly inserted at the behest of Sen. Lamar Alexander (R-TN), that turns a relatively harmless procedural mechanism into an insurmountable roadblock. UMRA currently requires the Congressional Budget Office to estimate the costs to the states of complying with new legal mandates. For mandates on the states that reach a cost threshold ($50 million in the original text, which has been indexed for inflation to $62 million), a member of Congress can raise a point of order. The point of order can be waived by a simple majority vote under current law, but the Alexander provision of the Senate budget resolution increases the required vote count in the Senate to a 60-vote supermajority, which would make it much more difficult to pass mandates in the Senate. The section was never subjected to debate, and many senators on both sides of the aisle were too distracted by the draconian budget cuts for important programs that they did not focus attention on the UMRA provision. If there is a final budget resolution that contains this provision, the measure will effectively alter Senate rules with this supermajority requirement through 2010. Immediately at stake would be new environmental protections, which typically either rely on state and local governments as partners in enforcement activities or call on the local governments to modify their own behaviors (as polluters, as managers of water systems, sewers, and waste facilities, etc.). Also at stake would be any improvements for workers, such as a real increase in the minimum wage, if the costs to states for applying new safeguards for their own employees reached $62 million or more. (One of the few statutes ultimately enacted that met the UMRA threshold was, in fact, the minimum wage increase from the mid-1990s.) One-Two Punch The hearing and the Senate budget resolution suggest a two-pronged approach for transforming UMRA into the envisioned “no money, no mandate” reform: erect a supermajority roadblock for UMRA with its current, limited definition, to be followed up with an expansion of UMRA’s coverage so that it reaches the entitlement and other Spending Clause programs that establish important public protections. Alexander’s role in particular suggests a larger scheme at play. Alexander has also introduced legislation that would give extraordinary support to state and local governments by forcing sunset periods onto consent decrees and settlement agreements that resolve civil rights cases. Alexander has apparently set about building up a states’ rights portfolio that would sacrifice public protections, whether won in the courts or in the halls of Congress, as a sop to the states. His focus on federalism suggests that there may be another, even larger two-pronged plan. This administration’s budgets have been devastating to the states, and the administration has also shown no compunctions against trampling over the states’ power to protect their citizens with safeguards that are stronger than the federal government’s anemic safeguards. This year’s budget is shaping up to be just as harmful to the states. A high-profile effort to strengthen UMRA could be a ploy to rehabilitate the GOP’s weakened states’ rights credentials while continuing to starve the states of needed resources, with the added benefit of weakening public protections and thus benefiting the GOP’s sponsors in corporate America.