Release Date: June 11, 1999

Washington, DC -- Senate Governmental Affairs Committee Chairman Fred Thompson (R-TN) introduced legislation late yesterday to protect state and local governments from unchecked federal intrusion. The “Federalism Accountability Act” would impose accountability on Congress and the Executive Branch before they could override state and local law.

“The Founding Fathers divided power between the federal government and the states. The constitutional principle of federalism -- embodied in the Tenth Amendment -- raises two fundamental questions that policy makers should answer: What should government be doing? And what level of government should do it? Everything else flows from them. That’s why federalism is at the heart of our democracy,” said Senator Thompson.

“Our governmental structure is based on an optimistic belief in the power of people and their communities,” added Thompson. “I share that view.”

A recent General Accounting Office 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 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.

“Congress and the Administration should not take lightly the preemption of state and local laws,” Thompson said. “We need to face the fact that Congress too often has acted as if it has a general police power to engage in any issue, no matter how local. Both Congress and the Executive Branch have neglected to consider prudential and constitutional limits on their powers.”

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 to compile a report on preemptions by federal rules, court decisions, and legislation;
  
• amend the Government Performance and Results Act of 1993 to clarify that performance measures for state-administered grant programs are to be determined in cooperation 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.

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) and Evan Bayh (D-IN).

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