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David Goldston’s Blog

This Week's House Votes: Federalism as Farce

David Goldston

Posted July 8, 2011 in Curbing Pollution, U.S. Law and Policy

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The Tea Partiers and their allies love to prattle on about “federalism” – the idea of a cooperative relationship between the federal and state governments.  They use “federalism” as a rallying cry to argue for limiting the authority of the federal government – partly because of the sordid history of “states’ rights,” which is really what they have in mind.

But two bills the House is scheduled to vote on the week of July 11 show that the Republicans don’t even have the courage of their euphemistic convictions.  What they really support is not any version of federalism, but rather “forum shopping” – their goal is to put decision-making into the hands of whomever is more likely to be influenced by business interests and right-wing ideologues.  The inconsistency (some might say “hypocrisy”) that results will be on full display next week.

On Monday, the House is scheduled to vote on a bill to repeal federal standards on light bulbs.  The repeal is about as counter-productive a notion as one could imagine, as my colleague Kit Kennedy explains.  But the point for our purposes is that the repeal bill (H.R. 2417) also would repeal any state or local light bulb standard.  

How do conservatives, like the sponsor, Rep. Joe Barton (R-TX), square this shutting down of state authority with their vaunted love of “federalism”?  Well, we don’t know because the bill is being rushed to the floor without any hearings or committee votes.  But the explanation would have to be pretty convoluted – more twisted than those compact fluorescent (CFL) bulbs that have Mr. Barton so exercised.  (The federal standard, by the way, does not ban incandescent or require the use of CFLs.)  The pre-emption of state authority is especially hard to explain since Mr. Barton and friends are trying to repeal the federal standard; they can’t argue pre-emption would be needed to prevent state conflicts with a national standard.     

But it gets worse.  Later the same week, the House is scheduled to vote on the wonderfully named “Clean Water Cooperative Federalism Act” (H.R. 2018).  The name is unintentionally ironic because its purpose is to end cooperation and just let states do whatever they want.  The bill would prevent the federal government from enforcing the clean water act in cases when a state disagrees.  It can only be considered as promoting “cooperation” if being eviscerated is viewed as cooperation because one person gets cut and another holds the knife.  This bill would tear the heart out of the Clean Water Act, as my colleagues have noted here, here and here.

But my point now is the rather, let’s say “fluid” use of the term “federalism.”  The same Republicans who will be urging their colleagues to eliminate state authority on light bulbs on Monday will then turn around and urge their colleagues to let states do whatever they want on clean water issues.  Untrammeled state authority on waters makes no sense whatsoever since waters don’t stop at state boundaries, and what one state does affects other states downstream.  The light bulb in your house doesn’t have an impact on neighboring states, but the river in your town may.

So how can a conservative explain this inconsistency?  Well, it turns out that the House didn’t hold any hearings on the water bill either – so much for the Republican claim to adhere to “regular order” to allow scrutiny of legislation.  But whatever they would say, it’s not hard to see what’s actually going on here.  The Republicans want decisions made wherever their view is most likely to prevail.  States might actually want lighting standards since they save consumers money, reduce the need for new power plants and are supported by the lighting industry.  California has such standards.  So the right wing can’t bet on the states to pursue the Tea Party agenda; better to eliminate state authority.

On clean water, history has already shown what happens when states are left to their own resources.  They often engage in a “race to the bottom,” granting concessions to businesses whatever the impact on health and water quality, especially if the consequences will be most felt downstream in other jurisdictions.  This was life before the Clean Water Act was enacted in 1972 and few would see that as “the good old days.”  Optimism is sometimes defined as the triumph of hope over experience.  For this Congress, we need a word for the triumph of failure over experience. 

States’ rights water policy doesn’t work in theory, and it hasn’t worked in fact.  What the bill’s sponsors, Rep. John Mica (R-FL) and Nick Rahall (D-WV), are trying to do has nothing to do with federalism and certainly nothing to do with cooperation.  It’s revenge for the federal government not giving carte blanche to mountaintop mining removal or agricultural runoff – two situations that should be textbook examples of why having a federal backstop for state water decisions is the only way to protect the public.    

An intelligent “federalism” wouldn’t always vest authority in the states and wouldn’t always give it to the federal government, and rarely would give it entirely to either.  What the Republicans have cooked up for next week, though, isn’t intelligent federalism; it’s not even intelligible federalism.  It’s using the term “federalism” when convenient to hide a raw power play.  Put the authority where the right wing will win and continue to laud “federalism” even as you’re voting to trample on state authority.  It would be hard to find a more blatant example of what truly lurks behind the Republican embrace of “federalism” than next week’s House schedule.

As one famous quote has it, “When history repeats itself, the first time is tragedy, the second time farce.”  The House may deliver both next week.

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