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Principles for a More Workable
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Governor Michael O. Leavitt, Chairman
Governor E. Benjamin Nelson, Vice-Chairman
Western Governors' Association
January 1995
INTRODUCTION
If there is one clear message that can be derived from the turbulent midterm elections, it is that the public is frustrated and deeply concerned with how government works--or more aptly put, doesn't work.
A poll by ABC News in October found nearly three-fourths of Americans are dissatisfied with the way the federal government does its business. A government far from home that is financially insolvent and faces gridlock politically has left citizens feeling surly and disgusted, unable to connect with their national government--a point that has not gone unnoticed in Washington, D.C. President Clinton's advisor George Stephanopoulos told the Wall Street Journal just prior to the November election, "The No. 1 item on the agenda (for the next two years) has to be reinventing government."
Western governors could not agree more. But we believe strongly that reinventing government must include a substantial devolution of authority, flexibility, and resources to the state and local levels, where government is accessible to the people and can effectively respond to their needs. As governors, we have a constitutional responsibility to compete in the federal system and protect the role of states. In a national discussion on reinventing government, governors must make the case that states are prepared and willing to address many of society's problems. If we don't, the result will be less efficiency, less equity, and less political accountability.
Western governors have chosen to focus on defining a more workable and effective relationship between the state and federal governments in their 1995 Western Governors' Association (WGA) Workplan. This paper proposes principles that should guide the states, the federal government and the public in this relationship. An appendix to this document sets forth certain WGA initiatives that are presently using these principles.
DEMISE OF FEDERALISM
The debate over the appropriate roles of federal versus state governments has been going on for more than 200 years. The founders crafted a delicate balance among branches and levels of government to protect individual rights and provide "checks and balances." They set the branches and levels of government in competition with each other to prevent any one branch or level from becoming preeminent and to avoid the twin perils of anarchy and tyranny. The Constitution created what James Madison called a "compound republic," with power split between two levels --national and state-- and then split again among three branches of government at both levels. "Hence, a double security arises as to the rights of the people," Madison observed. As Supreme Court Justice Harry Blackmun stated, "Federalism secures to citizens the liberties that derive from the diffusion of sovereign power."
The 10th Amendment of the United States Constitution details the division of power between states and the federal government. "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." The states therefore retain substantial sovereign authority under our constitutional system, as James Madison recognized:
The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite. . . . The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement and prosperity of the State.
As we know so well, the original checks and balances of the federal system and the division of responsibility in the 10th Amendment have been eroded and the national government has consolidated power and authority. States have lost power and the ability to compete in the system. As a result, states are treated and viewed as administrators for the federal government. The result is a national government running huge deficits, imposing one-size-fits-all requirements, and burdening state budgets with unfunded mandates.
There is no question that the federal government has stepped forward at crucial times in the history of this country to address important problems when states were unwilling, unable, or slow to act. In the natural and intended competition that exists among branches and levels of government, when a need arises or a power vacuum exists, it will be filled by whatever branch or level rises to the occasion. For many decades, state legislatures and other branches of state governments were poorly funded, and their small staffs lacked expertise. They were slow to respond to citizen concerns. Reforms, therefore, occurred at the federal level, and citizens began to look to Washington for protection against domestic threats to health, safety and civil rights. On the fiscal side, governors and mayors were happy to receive federal dollars, even if they were accompanied by burdensome paperwork and regulation. All of this happened in relatively small increments and for seemingly good purposes.
Today, however, the dynamics of society--and of government and our federal system--have changed dramatically. The Industrial Age era of centralized authority and top-down management, in which the federal government flourished, is giving way to the Information Age, in which small, flexible, autonomous units, whether business or government, will out-compete and out-perform their bureaucratic counterparts.
The present arrangement of centralized control at the federal level, with programs administered by huge bureaucracies, is not positioning our country for growth and prosperity in the next century. It is somewhat ironic and a tribute to the inspired work of our country's founders that the form of government they instituted more than 200 years ago--a national government with limited, but preeminent duties, and state and local governments charged with all other functions--is the best form of government in the new high-tech era. Our country would be well-served by a return to that form of government. We might call it "Information Age Federalism."
Noted futurist John Naisbitt observes, "In one of the major turnarounds in my lifetime, we have moved from `economies of scale' to `diseconomies of scale'; from bigger is better to bigger is inefficient, costly, wastefully bureaucratic, inflexible and now, disastrous." He adds that the almost perfect metaphor for the movement from bureaucracies of every kind to small, autonomous units, is the shift from mainframe computers to PCs, networked together. "Whether President or CEO, if you are an old mainframe thinker, you are no longer relevant."
Futurist Alvin Toffler believes, "The diversity and complexity of Third Wave (Information Age) society blow the circuits of highly centralized organizations. Concentrating power at the top was, and still is, a classic Second Wave (Industrial Age) way to try to solve problems." Overcentralization puts too many decisional eggs in one basket, says Toffler. The result is decision overload. "Thus, in Washington today Congress and the White House are racing, trying to make too many decisions about too many fast-changing, complex things they know less and less about." Leaders and citizens at local levels have better information and can respond faster to both crises and opportunities. It is necessary, Toffler observes, to "move a vast amount of decision-making downward from the national level. There is no possibility of restoring sense, order and management efficiency to government without a substantial devolution of power. We need to divide the decision load and shift a significant part of it downward."
The time has therefore come to determine how the state-federal relationship can best be guided in this new era of state capability when there is an enormous need for government to connect with, serve the needs of, and be accountable to the citizens that elect it.
GOALS AND PRINCIPLES FOR DEFINING AN IMPROVED RELATIONSHIP
Before attempting to determine which level of government is the more appropriate forum for determining and implementing particular policies, a more fundamental inquiry must first be made. We must first ask as whether government should be involved in the matter at all. As Abraham Lincoln noted, "The legitimate object of government is to do for people what needs to be done, but which they cannot by individual effort do at all, or do so well for themselves." This philosophy of governing is one that finds significant support in western states. It has been carried forward to the present day by the notion that the energy and vision of westerners allows us to "make it up as we go along," and as a result, westerners "have made it work." This independent western ethic is one that needs to be considered in any attempt to balance the present relationship between western states and the federal government.
GOALS FOR THE RELATIONSHIP
Should it be determined that government is part of the solution to an issue, a set of principles to provide the guidance necessary to determine an improved state-federal relationship is useful. These principles should be premised on desired outcomes or goals that promote good governance that is responsive to the public.
EFFICIENCY
Efficiency and effectiveness in governing are outcomes desired when determining appropriate state and federal responsibilities, especially in an era of restricted budgetary capabilities. The public is clamoring for a government that works without wasting taxpayer money.
EQUITY
Equity is another goal of an improved federal-state relationship in that democratic government must strive to treat every citizen as fairly as the next.
POLITICAL ACCOUNTABILITY
The state-federal relationship must maximize the political accountability of elected officials in order to ensure that the electoral ramifications of policy decisions may be accurately directed at either state or national officials by the voting public.
As these goals are reached, government will not only be operating productively, but it will also be acting to restore public trust and confidence. Principles that meet these goals follow.
PRINCIPLES OF THE RELATIONSHIP
I. DECENTRALIZE DECISIONMAKING
Classical republican philosophy recognizes the advantages of having smaller-scale government that is closer to the people. "In an extensive republic the public good is sacrificed to a thousand private views; it is subordinate to exceptions, and depends on accidents. In a small one, the interest of the public is more obvious, better understood, and more within the reach of every citizen . . . ." These advantages of a government close to the governed have clearly been lost as the federal government has consolidated power over many decades. As then-Governor Bruce Babbitt observed:
Hamilton and Jefferson would certainly ask . . . how have we allowed their creation - -a carefully layered construction of federal, state, and local responsibilities - - to become scrambled into one great undifferentiated amorphous omelet by a cook in Washington?
In many areas of public policy, government can be effective only if decisions are made from the "bottom up" as opposed to from the "top down." Decentralized decisionmaking gives people greater access to their elected officials, resulting in greater confidence in government while increasing the accountability of leaders to citizens. States are well positioned and possess the competence necessary to discern local sentiments and to govern accordingly. Additionally, given the public's wariness of and distance from officials in Washington, effective local decisionmaking will help to reengage citizens who are otherwise apathetic to the political process.
II. ACCOMMODATE DIVERSITY AND FLEXIBILITY
The adage, "one size fits all" does not provide functioning guidance for a state-federal relationship. The system must instead recognize diversity, and encourage flexibility so creative answers can be developed to complex problems, changing conditions, needs, and values. Federal regulatory barriers and restraints make it difficult for states to reform welfare and health care, for example, without taking extra time and effort to obtain numerous federal waivers.
Federal leaders acknowledge this concern. President Reagan stated, "With respect to national policies administered by the States, the national government should grant the States the maximum administrative discretion possible. Intrusive, Federal oversight of State administration is neither necessary nor desirable." The Gore Report on Reinventing Government points out, for example, that "State and local governments find their money fragmented into hundreds of tiny pots, each with different -- often contradictory -- rules, procedures, and program requirements." It recommends addressing excessive federal regulations in part by allowing states to consolidate the federal grants they receive and to use the money where it is needed the most.
Despite the good intentions, states are seeing less flexibility, not more, from the federal government. This needs to change. By accommodating state diversity and flexibility, cooperation between states and the federal government will be enhanced as will efficiency and effectiveness, thus increasing the likelihood of good governance.
III. USE STATES' ABILITY TO INNOVATE
Supreme Court Justice Louis Brandeis recognized the value of states in the federal system:
There must be power in the States and the Nation to remold, through experimentation, our economic practices and institutions to meet changing social and economic needs . . . . Denial of the right to experiment may be fraught with serious consequences to the Nation. It is one of the happy incidents of the federal system that a single courageous State may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.
As approaches to governing begin to need a transfusion of new ideas, states can supply the vitality and the political proving ground needed in advance of national initiatives. State governments have responded to new challenges in recent years by launching numerous innovative programs in areas that include the economy, education, health care, and crime control. However, states could do much more if they had more freedom and flexibility from strict and uniform federal regulations. Resources to experiment and innovate are also an important issue. Unfunded mandates rob states of innovation capital and, as state budgets are increasingly absorbed to meet those mandates, the ability for states to set their own priorities are diminished.
IV. ALLOW FOR STATE-FEDERAL COMPETITION
The Constitution established balanced competition among the levels and branches of government. If one level or branch is unable to carry out its constitutionally given rights, power will be concentrated improperly, policy will not be properly scrutinized, and the rights of the people will be endangered. The Articles of Confederation failed because power was concentrated in states and the national government was unable to compete. Today, the reverse is true. States are no longer competitive forces able to act as a check and balance to the federal government. Thus, without strong competition, the federal government has run huge deficits, has imposed one-size-fit-all mandates, and has become out-of-touch with local concerns.
States must be full-fledged partners, no longer treated and viewed only as administrative units. States must be provided with opportunities to develop policy equally or concurrently on given issues. Only through more balanced power sharing can successful administration of important programs restore trust in government. The solution is to restore competition and checks and balances in the system.
CONCLUSION
Recent gauges of public opinion clearly indicate that it is time to reexamine the state-federal relationship. The public is demanding greater efficiency in the way government spends its resources. The government must also continue to ensure that equity is maintained in its policies and in the manner that it delivers services. Moreover, the public feels it has lost a sense of control over government. Many citizens feel left out of government processes all together. As a result, a rift has developed between the general public and politicians, government executives, and public policy experts. The overlapping roles of state and federal government add a final note to the public's mystification about the process of government and their sense of being powerless. Providing for a more effective and open state-federal relationship, will help to restore the public's confidence in governing institutions and make both state and federal elected officials more politically accountable to the voters.
APPENDIX
The four principles set forth in the attached paper are intended to be useful tools to help decisionmakers determine the appropriate level of government to implement a given issue. An example of how the principles are applied in the work of the Western Governors' Association is detailed in this Appendix.
WALKING THE WALK
Western Governors have been promoting the four principles for an improved state-federal relationship through a number of initiatives and program areas advanced and administered by the Western Governors' Association (WGA). These activates demonstrate that states have the capacity to address significant national problems locally. They also show that when the principles are applied, they lead to greater opportunities for government efficiency, equity, and political accountability. Relevant WGA programs are detailed below.
REGIONAL DIALOGUE ON HAZARDOUS WASTE - Western states have created a regional dialogue on hazardous waste management to address regional equity, planning, and market conditions, while also seeking to develop creative solutions to this long standing problem. By decentralizing decisionmaking and accommodating diverse state interests, the dialogue has overcome many of the obstacles faced when waste planning was done at the federal level.
PARK CITY PRINCIPLES FOR WESTERN WATER MANAGEMENT - In 1991, western state water officials met with other affected interests to analyze what was leading to the successful resolution of water conflicts in the West and to develop a set of "principles" to guide policy makers as they seek resolution on other complex water resource issues. The Park City Principles draw to a great extent from the principles set forth in this paper including decentralizing decisionmaking and accommodating diversity.
GRAND CANYON VISIBILITY TRANSPORT COMMISSION - The GCVTC is an example of Congressional recognition of the principles set forth above. By permitting states to take the lead in reducing and controlling air pollution in the southwestern United States, Congress has demonstrated its belief in the value of state decisionmaking and resources. The GCVTC study embraces diverse interests from multiple states, industries, the public, along with Mexican states. New technologies and creative solutions are being tested to determine solutions for an otherwise vexing problem. Whether Congress and the Administration will accept a state and tribal proposed solution remains to be seen.
MINE WASTE MANAGEMENT - Western state environmental officials have been working for several years with Environmental Protection Agency and Department of Interior officials to create a mine waste regulatory structure that relies on state regulatory programs. This approach avoids a "one size fits all" federal approach and allows flexibility for unique climate and geological conditions of the various states.
GREAT PLAINS PARTNERSHIP - This experimental program is an effort to develop proactive strategies that will recover species before they become endangered, thus avoiding regulatory and economic repercussions. States acting through WGA coordinate among a large array of federal, tribal, local, and private interests to protect species and habitats. At a time when federal agencies are struggling to improve the administration of complex environmental laws, the Great Plains Partnership illustrates that state decisionmaking and innovation can lead to effective government.
REGIONAL WASTE PROTOCOL - Governors signed a regional protocol in 1991 pledging cooperation on waste management and siting issues. The governors signed the protocol because they recognized that regional cooperation on interstate concerns could better solve equity and waste management issues than could a single federal law.
INTERNATIONAL TRADE POLICY PROGRAM - The ability of states to make local decisions on environmental, health, and safety standards could be hampered by expanding international trade rules that are negotiated by the federal government with our U.S. trading partners. The WGA is working to ensure that state-federal procedures for addressing potential conflicts and sovereign state rights are as protective of state interests as possible. Moreover, the WGA is hoping to sensitize federal trade negotiators to the need to account for state diversity in international trade agreements.
WASTE TECHNOLOGY DEVELOPMENT - To spur faster development and commercialization of promising waste management cleanup technologies, western states are testing a regional technology certification program. This pilot serves as a laboratory for experimentation and it is being examined for purposes of leading to a national certification program.
ENDNOTES
1. James Madison, The Federalist No. 51, p. 323.
2. Coleman v. Thompson, 111 S. Ct. 2546 (1991) (Blackmun, J. dissenting).
3. James Madison, "Federalist 45" in The Federalist Papers, C. Rossiter, ed. (New American Library, New York, NY) p. 292-93 (1961).
4. John Naisbitt, Global Paradox: The Bigger the World Economy, the More Powerful Its Smallest Players, (William Morrow and Company, Inc., New York) p. 17 & 42 (1994).
5. Alvin and Heidi Toffler, Creating a New Civilization: The Politics of the Third Wave, (The Progress & Freedom Foundation, Washington D.C./Atlanta) p. 68-70 (1994)
6. See also, the once motto of the Boston Globe, "The world is governed too much."
7. Beyond the Mythic West, Foreword of Governor George Sinner, p. xi (1990).
8. Charles, Baron de Montesquieu, The Spirit of Laws, Book VIII, Chapter XVI, p. 130.
9. National Governors' Association meeting, speech by Governor Bruce Babbitt (Denver, CO) (1980).
10. Executive Order 12612, Oct. 26, 1987.
11. The Gore Report on Reinventing Government: Report of the National Performance Review, "Step 6: Empower State and Local Governments," (1993), citing Thomas Jefferson's 1826 quotation, "Were we directed from Washington when to sow and when to reap, we should soon want for bread."
12. New State Ice Co. v. Liebmann, 285 US 262 (1932) (Brandeis J., dissenting).