MAP: editor's note: Nearly passed this item by until I read this:
"Everybody up here is constantly saying we should send power out of
Washington, but we hardly ever do," complained Sen. George V. Voinovich
(R-Ohio)... "I keep trying to get that across to people. It's just
impossible to get anyone to listen." and considered this item: Voinovich
Tries To Block D.C. Marijuana Law
http://www.mapinc.org/drugnews/v99/n1086/a05.html

IN LEGISLATIVE TIDE, STATE POWER EBBS

Federalization Has Few Friends but Many Votes

There was a typical menagerie of legislation on Capitol Hill last week. The
Senate passed a "partial-birth" abortion ban; the House prepared to take up
an assisted suicide ban.

Behind the scenes, major battles raged over managed-care restrictions and
an overhaul of the juvenile justice system. As usual, Congress addressed
issues of great import, such as a massive overhaul of the financial
services system, and not-so-great import, such as a "foot fetish" bill
making it a federal crime to sell videotapes of animals being tortured with
stiletto heels.

But there is one thing those initiatives have in common: They all would
expand federal power at the expense of states. Members of Congress still
talk a lot about states' rights, about "a devolution of power" to their
beloved "laboratories of democracy," but when it comes to actual
legislation, a counterdevolution is well underway.

Lawmakers of both parties all seem to support state power in theory, but
critics complain that most of them can't help trying to interfere when they
don't like the way states are using it.

The assisted suicide ban, for example, would overturn a controversial
Oregon law. The so-called Patients Bill of Rights could preempt health-care
statutes in dozens of states. The juvenile justice bill, best known for its
gun control measures, also would force states to prosecute more adolescents
as adults and federalize a variety of crimes extending well beyond graphic
footwear videos.

And those aren't the only examples of "preemption" -- that is, when the
federal government does something to supersede a state law. The House
Judiciary Committee last week passed a bill making electronic signatures
valid nationwide, regardless of state laws. An $82.6 billion domestic
budget bill stalled over GOP efforts to eliminate needle exchange programs
in the District. And a House subcommittee prepared to take up a national
electricity deregulation bill that could supersede at least 26 state
deregulation plans; a group called Citizens for State Power responded with
ads featuring a federal electricity regulator in a sheriff's hat pointing a
gun at consumers.

"Everybody up here is constantly saying we should send power out of
Washington, but we hardly ever do," complained Sen. George V. Voinovich
(R-Ohio), a former two-term governor who spent 32 years in local, county
and state government before coming to Congress this year. "I keep trying to
get that across to people. It's just impossible to get anyone to listen."

The tensions between federal and state power in America date back to the
early debates over the Constitution, as Federalists like Alexander Hamilton
argued for a strong national government, while anti-Federalists such as
Thomas Jefferson fought for state prerogatives. But in the 1990s, the
pendulum has swung -- rhetorically, at least -- far away from Washington,
with politicians now routinely pledging to get an out-of-touch,
ever-expanding federal government off the backs of innovative states.

Republicans have been especially vocal about devolution, but Democrats --
including President Clinton, a former governor -- have been supportive,
too. And the Supreme Court has rediscovered the Tenth Amendment in recent
years, striking down several federal laws on the grounds that they intrude
on powers reserved to the states.

To be sure, the nation's governors and state legislatures have enjoyed a
few major victories on Capitol Hill. In 1995, Congress agreed to end its
age-old practice of dumping "unfunded mandates" on states. In 1996, a
historic welfare overhaul allowed states to design their own antipoverty
programs -- although it also included new mandates forcing states to create
child-support bureaucracies. This year, Congress barred federal officials
from raiding the $246 billion settlement that states won from tobacco
companies.

But states'-rights advocates say that in recent years, the scourge of
unfunded federal mandates has been replaced by the straitjacket of direct
federal preemption. Sometimes the federal intrusion is blatant, as in the
recent congressional move overturning the legalization of medical marijuana
in the District, or the three-year moratorium that prohibits states from
taxing the Internet. Sometimes they are more subtle, such as an obscure
provision Sen. Richard C. Shelby (R-Ala.) tucked into a transportation bill
directing states to take steps to protect the privacy of driver's license
records.

Even strict states'-rights advocates say Washington's recent tendency to
impose uniform laws for complex industries such as banking and
telecommunications makes some sense in light of the advance of technology
and the rise of the global economy; state regulators are often ill-equipped
to deal with international conglomerates, and patchworks of conflicting
state laws can boost business costs. But to Michael Bird, a lobbyist for
the National Conference of State Legislatures, the problem is not that
Congress is butting into some things; it's that it's butting into almost
everything.

"It's the same old story: People in Washington think they know what's best
for states," Bird said. "They beat their breasts about devolution all the
time, but whenever they don't like the way states do something, they step
in and do it their way. It's so hypocritical."

Last week's debate in the House Judiciary Committee over a product
liability bill was a stark example. The GOP bill at issue includes language
preempting state liability laws that favor consumer plaintiffs, but
preserving state laws that favor business defendants. So the committee's
Democrats proposed an amendment preempting state laws in all cases.
Chairman Henry J. Hyde (R-Ill.) crossed party lines to support the
amendment, arguing that it makes no sense to support the right of states to
protect businesses but not consumers: "I like to support things that I can
defend." But no other Republicans joined him, and the amendment failed.

"The Republicans don't really believe in states' rights; they believe in
deciding the issue at whatever level of government they think will do it
their way," said Rep. Barney Frank (D-Mass.), a member of the committee.
"They want to be Thomas Jefferson on Monday, Wednesday and Friday, and
Alexander Hamilton on Tuesday, Thursday and Saturday."

In fact, the congressional push to dictate state policies has been a
bipartisan effort.

It is mostly Republicans pushing to override states on e-signatures,
late-term abortion, assisted suicide and legislation to protect private
property owners from public "takings." Democrats have been the main
advocates of federal child care standards, federal privacy protections and
a federal initiative to hire 100,000 new teachers. The parties cooperated
on one preemptive bill insulating businesses from lawsuits over the Y2K
computer bug, and another superseding state and local laws deemed hostile
to religious groups.

Time and time again, members of both parties who have argued for devolution
in principle when defending state laws they like have turned against state
prerogatives they don't. Sen. Ron Wyden (D-Ore.) has been a staunch
defender of Oregon's assisted suicide law; at the same time, he is leading
the effort to stop states from taxing the Internet. Rep. David M. McIntosh
(R-Ind.), a candidate for governor, sponsored the most important pending
states'-rights bill, an effort to force Congress to acknowledge what it's
doing any time it preempts a state law. But he has supported measures
making it more difficult for states to take action limiting the value of
private property.

On the other hand, Voinovich has established himself in his first year in
Washington as the city's most fervent devolutionary. He led the fight to
let states keep their tobacco money, was the only senator to vote against
the juvenile justice bill on pure federalism grounds, and even got teary
after a bill passed giving states more flexibility to spend federal
education dollars. But he says most of his colleagues simply can't resist
the temptation to exert power at the federal level.

"Everyone gets here and wants to 'do something,' " Voinovich said. "They
look around and say, 'Wow! This is wonderful. I'm going to get things
done.' It never occurs to them that sometimes we shouldn't do anything at
all. Even the quote-unquote conservatives."

The primary vehicle designed to reverse all these trends is the Federalism
Accountability Act, a bill filed by McIntosh in the House and Sen. Fred D.
Thompson (R-Tenn.) in the Senate that would require Congress and
administration officials to come clean whenever their actions would preempt
state powers. The idea is that if politicians were forced to acknowledge
what they were doing any time they trampled on state prerogatives, they
might not trample so often.

For now, though, the bill is going nowhere. The main stumbling block has
been the U.S. Chamber of Commerce, which has argued that one-size-fits-all
national laws cut costs for businesses. Labor and environmental groups have
opposed the bill as well, arguing that it would eviscerate consumer
protections in business-friendly states.

"The special interest lobbies don't want to deal with 50 states; they just
want to deal with Congress," said Utah Gov. Mike Leavitt (R), chairman of
the National Governors' Association. "Devolution is the mantra now, but
it's not what's happening in the fine print."