States looking for ways to reclaim lost powers

THE BALTIMORE SUN

An article in The Sun yesterday incorrectly named the federal law that requires states to test for pesticides in drinking water. The law is the Safe Drinking Water Act.

The Sun regrets the error.

PHOENIX, Ariz. -- Distributing Christmas food packages to 20,000 prisoners became a logistical headache for Sam Lewis. But when the Arizona prisons chief tried to end the traditional treats, a federal judge barred him from doing so.

At the request of prisoners, the judge has ordered Mr. Lewis to provide 4,000 typewriters for inmates, keep their hot pots plugged in and purchase $500,000 worth of new legal books for the prison law libraries.

Mr. Lewis says he has had enough of this "contemptuous disregard for state authority," this micromanagement by judicial

decree.

So has the state of Arizona. Fed up with a federal government they find exasperatingly intrusive and excessively powerful, state officials have banked $1 million to challenge a plethora of federal mandates and regulations as well as the court orders affecting the state prisons.

It's a one-of-a-kind fund that typifies attempts by an increasing number of states to reclaim power from Uncle Sam.

Before 1960, two federal mandates existed. The number is hovering near 100, according to figures quoted by the Council of State Governments. The mandates touch everything from the highways we build to the wildlife we protect to the medical care we underwrite for the poor.

From Utah to Virginia, 14 states have supported convening a "Conference of the States" to find ways to restore state powers. Six more have passed the conference resolution in at least one legislative chamber.

"The balance between the federal government and state governments as enunciated in the Constitution has become so far out of whack," said Bob Silvanik, director of policy and program development at the Council of State Governments, the Kentucky-based group promoting the states' conference. "The intensity has increased so much in recent years, and there's beginning to be a feeling that we have to take some significant action."

Some states aren't waiting for a quorum of their peers.

* Illinois is fighting the National Voter Registration Act, a federal mandate to register voters by mail that would cost state taxpayers about $20 million.

* Colorado balked at complying with a federal vehicle-emissions testing program and is using a new state law to do battle.

* Arizona created the Constitutional Defense Council and set its sights on restoring the prison chief's autonomy and contesting clear air standards.

There are other signs of discontent. Congressional delegations are being summoned to State Houses to discuss unfunded mandates. New federal regulations have cost states and localities from $8.9 billion to $12.7 billion between 1983 and 1990, according to congressional budget figures.

Thirty-five counties in Western states have approved legislation asserting ownership of federal lands. A group of local sheriffs has refused to enforce the so-called Brady bill, the nation's handgun control law that requires local police to conduct background checks on prospective gun buyers.

Constitutional issues

Power and money may be at the heart of this tug-of-war, but the conflict involves philosophical and historical issues as well. Although the 10th Amendment to the Constitution reserves for the states all powers not expressly given to the federal government, the country's experience has been otherwise.

The erosion of states' rights, some activists say, began in the era of Franklin D. Roosevelt. The federal government's authority expanded with the social and civil rights programs of Lyndon B. Johnson's Great Society in the 1960s. Twenty years later, Ronald Reagan reopened the debate on the balance of power with his New Federalism.

That debate continues today.

"The country, in the 1930s, was ready to hand over a significant amount of power to Washington to solve the ills in this country. . . . We have the same problems, only worse, and the power is gone from the localities to a centralized place," said state Sen. Stanley O. Barnes, Jr., of Phoenix. "Now the state of Arizona is tTC ready to take that power back."

As Nebraska Gov. Ben Nelson prepared his first state budget in 1990, he realized the restrictions placed on his state dollars. "Why do they call me governor?" Mr. Nelson said he asked his staff. "Why don't they call me administrator? Nebraska seems to more a branch of the federal government than a freestanding sovereign state."

As an example, the governor cited the federal Clean Water Act. No one is against clean drinking water, Mr. Nelson said. But the regulations require every state to test for the same possible contaminants in the same manner without regard for local differences.

Why should Nebraska have to test for a pesticide used to grow pineapples when the prickly-skinned fruit has never been grown there, Mr. Nelson asked.

But federal regulations also set national standards. They offered protections for the vulnerable and ensured opportunities for the disadvantaged. State governments today are better equipped to govern than in the past.

But "that doesn't mean the states can or have the incentives to take on a whole range of social responsibilities," observed Margaret M. Weir, a senior fellow at the Brookings Institution.

Several months ago, President Clinton signed into law legislation designed to curb unfunded mandates imposed on the states. But the bill is not an "absolute cure" to what ails the states, said Alabama State Rep. Michael E. Box.

"We feel we have to take some action to restore the balance of power that we feel used to exist," said Mr. Box, who is also vice president of the national conference of state legislators.

State conference idea

Governor Nelson of Nebraska and Utah Gov. Mike Leavitt have been the leading proponents of the state conference as a way to push their case collectively. In this forum, states could cite problems, get the concurrence of their legislatures and petition Congress.

The conference would give them political clout they appear to lack now.

Proponents planned to convene the conference when 26 states had adopted resolutions in support of it. They had hoped for a fall date.

But opposition from the far right stalled the movement with charges that the conference was a disguised Constitutional Convention. Fearful that gun rights and other protections would be dismantled, the opponents helped defeat Conference of the States resolutions in several states this year -- including Maryland, conference advocates say.

Although the measure was sponsored by the Maryland General Assembly's top two leaders, concerns raised by both sides of the political spectrum helped defeat the measure.

"I could hear murmurings from members of the Senate this might be a nice idea, but certainly not an outstanding one, not one whose time had come, that there wasn't an overwhelming compelling need for Maryland to participate," said Senate President Thomas V. Mike Miller Jr., D-Prince George's.

So now the gathering this fall will be a meeting of supporters devising ways to counter the opposition and lobby states to sign up.

"The fact of the matter is there are surveys that show the public has more respect, more trust, more confidence in state governments to effectively run programs," said Mr. Silvanik, the policy director of the Council of State Governments.

Dr. Tom Patterson, the Republican majority leader in the Arizona Senate, reflected that view when he said, "We feel in Arizona we're more qualified to determine what's best [for Arizona], from how cars should be inspected to who gets school lunches."

Wrestling for power

Meanwhile, governors and state legislatures across the country, will continue to try and wrest power from the federal government.

In Arizona, for example, Gov. Fife Symington has proposed Land Plan 2000, an attempt to gain state control of the management of federal lands. Environmentalists, as well as hunters and sportsmen in Arizona, are concerned about the proposal.

Charles J. Babbitt, an environmental lawyer in Phoenix whose brother is Secretary of the Interior Bruce Babbitt, charged that the governor's actions have nothing to do with states' rights.

"What he really wants to do is give free rein to the big corporate exploiters of the public domain," said Mr. Babbitt, past president of the Maricopa Audubon Society.

Mr. Babbitt contended that Arizona has "an abysmal record" of ** managing its own lands. He said the state is currently being sued by a public interest law group over grazing issues.

"You have state lands more overgrazed than [Bureau of Land Management] or federal lands," said Mr. Babbitt. "To think Symington is seriously considering that they can do a better job than the federal government over the last hundred years is simply laughable.

"It's not about better management. It's about no management."

But Nebraska's Governor Nelson says states should have first crack at managing their own houses. He offered this prescription for federal-state relations: "Trust the states to get the job done, to meet national standards, and verify that we've done it."

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