Legislative developments brewing in the 109th Congress could alter the relationships between the federal and state governments, thus potentially distorting important regulatory protections. Unfunded Mandates Reform Act Revisions There has been a flurry of activity marking the tenth anniversary of the Unfunded Mandates Reform Act: a series of hearings, a Government Accountability Office symposium, and hints from various congressional offices that UMRA could be reshaped in ways that might present serious obstacles to public protections. More information and analysis is available here. There appears to be a two-pronged strategy:

• Creating a supermajority roadblock: This part of the strategy was already realized in the Senate budget resolution. Before the budget resolution changed things, UMRA included a point-of-order mechanism that was relatively harmless: it allowed any member of Congress to raise a point of order against a bill imposing new requirements on state and local governments that, according to the Congressional Budget Office, would impose new costs of $50 million (indexed for inflation to $62 million) or more, but that point of order could be overcome by a simple majority vote. A undebated provision in the budget resolution, introduced by Sen. Lamar Alexander (R-TN), changes that simple majority vote into a 60-vote supermajority requirement, albeit only in the Senate. Bills subject to the point of order are not necessarily the paradigm case of an "unfunded mandate," or a requirement imposed specifically on the states without accompanying funding. Take, for example, a hypothetical bill to raise the minimum wage. State and local governments are employers, just like any private corporation that would be subject to minimum wage laws; even a small raise in the minimum wage would easily trigger the $62 million threshold for state and local governments. In such a case, senators wishing to block a minimum wage increase could raise an UMRA point of order, and the hypothetical minimum wage would then have to be supported by at least 60 votes. This heightened point of order becomes a backdoor filibuster that a senator can use to block legislation without ever having to criticize it.
• Expanding UMRA's reach: State and local government groups have been actively advocating for expanding the scope of laws subject to UMRA and amending UMRA to close what they call "loopholes." The changes they are calling for include the following:
  • Eliminating UMRA's current exemptions, which include grant conditions (such as requirements attendant to foster care funding) and laws that impose requirements on the states in order to improve national security;
  • Extending UMRA's coverage to laws that alter existing mandates when the total cost of the revised mandate exceeds $62 million, even if the incremental cost of the new requirements does not alone reach the UMRA cost threshold; and
  • Imposing a form of regulatory budgeting by holding costs associated with implementing regulations within the bounds of the Congressional Budget Office cost estimates for the original legislation.
  In an April 2005 hearing, it was apparent that no legislative proposal had been developed at that time. Given the major developments still to be tackled when the Senate returns from August recess, it now seems unlikely that there will be major developments on this prong of the UMRA strategy in that chamber until late fall at the earliest. Timing aside, this threat still seems significant.

Attack on Consent Decrees Two currently pending bills, H.R. 1229 and S. 489, would erode government accountability by limiting the public's ability to hold state and local governments accountable for their violations of federal law. The bills target consent decrees, or court-enforceable settlement agreements, that resolve litigation against state and local governments for violations of federal law. The requirements built into such agreements -- which are negotiated by the governments themselves -- become the terms of a court order to remedy the existing violations and, in many such cases, to fix the systemic problems that caused those violations. These bills would put an artificial expiration date on consent decrees by forcing them to expire every four years or with a change in administration of the relevant government entity. The stakes are high with these bills. They pose an immediately obvious threat to civil rights, with the exception of school desegregation cases, which are exempted under the bills. Also at stake would be many cases in which state agencies are responsible for implementing federal protective policies, such as air quality standards and workplace safety requirements. Many states have a weak record of environmental enforcement and workplace health and safety enforcement. When states fail to follow the law, the litigation option empowers workers and communities suffering environmental harms to act as private attorneys general, compelling the states to do their jobs. These bills would take power away from the people to hold their own government accountable. Public interest groups, led by the civil rights community, are monitoring these threats closely. On the Fringe At least two other bills would have federalism implications, although with little likelihood of passage they do not appear to pose any real threat. H.R. 3499, the "Local Control of Education Act," purports to "restore state sovereignty over public elementary and secondary education." It works by, first, declaring the obvious--that requirements built into federal education spending laws are not requirements on the states unless the states affirmatively act to take the money--and then, second, by requiring states every five years to re-affirm their decision to be subject to federal education requirements. The final bill, H.R. 3621, is farthest out on the fringe. It would give governors and state legislators standing to litigate against any federal statute, regulation, or program that "invades or otherwise violates or intrudes upon the residual core sovereign authority" protected by the Tenth Amendment or that "damages or otherwise diminishes the republican form of government" in the state. Both ideas are nonstarters, and the second one is null and void from word one, given that the Supreme Court long ago ruled that the clause of the Constitution ensuring a "republican form of government" is nonjusticiable. Political Context These last two bills appear to be largely rhetorical efforts that allow some in Congress to espouse states' rights while doing little or nothing for the states themselves. The consent decree bills and potential UMRA reforms, however, pose serious threats in part because they are fueled by states' rights rhetoric. Recent budgets have been devastating to the states (even in those states that are showing revenue upticks, because those upticks are likely to be temporary and those states may well be forced to replace the missing federal funding with state revenues), 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 GOP sponsors in corporate America.