May 17, 1966
Page 10780
THE ROLE OF STATE LEGISLATURES IN THE AMERICAN FEDERAL SYSTEM
Mr. MONDALE. Mr. President, on April 28, 76 representatives of the business and academic communities and various levels of government met at Arden House, Harriman, New York to consider the performance of State legislature in our federal system. This meeting was conducted under the auspices of the American Assembly of Columbia University. Toward the end of the 4-day meeting, the Senator from Maine [Mr. MUSKIE], delivered a thought-provoking speech on the role of State legislatures in the American federal system.
What is inevitable for the future is Federal involvement, and not Federal dominance, in State and local problems. For in our effort to combat the problems of poverty, insufficient education, and urban and rural development, it is the States and localities which are in the front lines. They are close to the problems and can be the most flexible in their response. Only local and State governments -- using Federal grants and programs as resources to meet local problems -- can carry the war on human deprivation to final victory.
Senator MUSKIE's speech makes well the point that the burden of shaping and forming this relationship is not solely on the Congress or the Federal Government, but as well on the State legislative bodies. I ask unanimous consent that his remarks be printed in the RECORD at this point.
There being no objection, the speech was ordered to be printed in the RECORD, as follows:
THE STATE LEGISLATURES IN AN AGE OF CREATIVE FEDERALISM
(Address by Senator EDMUND S. MUSKIE, Democrat, of Maine, chairman, Subcommittee on Intergovernmental Relations, Senate Committee on Government Operations, before the American Assembly on State Legislatures in American Politics, Harriman, N.Y., April 30, 1966)
Four months ago, in his state of the Union message to the Congress, President Johnson
signaled what I hope will be a new dimension to the Great Society. He urged that we "move on to develop a creative federalism to best use the wonderful diversity of our institutions and our people to solve our problems and fulfill our dreams.” Later in the budget message, the President described his interest in more specific terms.
He said that the success or failure of critical new programs depends largely on communications, and a readiness for action among Federal agencies in the field, and State and local governmental units. "We must open the channels of responsibility” he declared. "We must give more freedom of action and judgment to the people on the firing line. We must help State and local governments to deal more effectively with Federal agencies."
This recognition by the President of the need for a more flexible, but more efficient, approach to administering joint-action programs highlights one of the basic goals of "creative federalism." It represents a top-level awareness of the critical roles which State and local administrators and legislators must play in the economic and social development of this country. It represents full acceptance of the strategic positions which these officials occupy in implementing the 170 Federal grant programs now on the books. And it is a signal that this administration intends to cooperate with them and assist them in fulfilling their public responsibilities.
Many of us have been concerned for some time with improving the administrative relationships between Federal, State and local governments. Competent scholars have been studying and reporting on this subject for years. In 1955, a temporary commission (the so-called Kestnbaum Commission) completed a two-year study which was the most perceptive and comprehensive analysis of intergovernmental internal relations since the Constitutional Convention of 1787. In 1959, Congress authorized a permanent bipartisan Advisory Commission on Intergovernmental Relations composed of 26 members from the three levels of government and the public-at-large.
During the past six years, this Commission has issued 28 reports containing 200 recommendations for improving State and local program administration and financial organization. Each year it issues a comprehensive legislative program with proposed drafts of bills for consideration by State legislatures.
There are two subcommittees in Congress making continuing investigations in this field. In addition, such well-staffed organizations as the Council of State Governments, the U.S. Conference of Mayors, the National Municipal League, the National League of Cities, and the National Association of Counties have developed comprehensive analyses of Federal-state-local problems, and are cooperating with State and local governments to assist them in modernizing their administrations.
Now is the time to bring together the knowledge and recommendations of these experts to define a positive program for encouraging State and local institutions to become active and effective partners in a creative federalism. Now is the time to update our intergovernmental relations.
I think it is well to emphasize that there is nothing academic or mysterious about intergovernmental relations, although some people tend to treat it as a classroom problem.
Intergovernmental relations today directly involves people: their health, their homes, their jobs, their rights as citizens, and their security as free men. We can pass brave new programs to attack poverty, ignorance, urban blight, economic distress, and other human problems. And during the past two Congresses, we have enacted such programs. But the success of this legislation is only as good as the machinery which carries it to the people -- in the fastest, most effective way possible. So we must turn the spotlight now on the procedures of government. We must take a hard look at the operating mechanism of our federal system of government to see where it is failing to meet the challenge of the 60's and of the decades to come.
We are concerned here with the role to be played by State legislatures in a creative federal system. It is a critical role -- perhaps a major determinant of the future course of American federalism. A number of responsible authorities on our governmental system are saying that State governments are obsolete: that their administrative departments are non-professional and weak; that their legislatures more closely resemble an old style one-ring circus, than a forum of government; and that their constitutions resemble more the Code of Hammurabi than a code for modern constitutional government.
One by-product of this distrust is that more and more Federal aid programs involving our metropolitan areas are by-passing the States because, frankly, the States have failed to meet their responsibilities to the urban municipalities. The report of the Senate Intergovernmental Relations Subcommittee on "The Federal System As Seen by State and Local Officials" unearthed a wide distrust of the States among mayors, county executives, and other local officials. And its later report, "The Federal System As Seen by Federal Aid Officials," revealed a corresponding sentiment among Federal middle management administrators. A by-product of this distrust is the continuing hostility of public opinion toward State government and the sensational press accounts of alleged inaction and confusion, or worse, at State capitals. Unfortunately, the State legislatures must share a large part of the blame for this decline in the prestige and power of State governments.
As one whose political career began as a State legislator, and who moved on to be a governor, and now a United States Senator, I know that the critics have much on which to build their case. But I also know that State legislatures, as a Detroit Free Press editorial recently phrased it, "long have been the most abused of government operations." And I also know -- especially with the completion of reapportionment -- that the States can and must become viable, effective partners in the economic and social development of this country.
The die is indeed cast, and many State executive and legislative leaders know it. These officials are earnestly seeking to do something about it -- because they recognize that the States are now running a $45-billion a year business, employing nearly two million workers. They know that if the States continue to ignore pressing public problems, the Federal Government will have to move in to help the communities involved. The incredible riots in Los Angeles, Chicago, and Philadelphia; the school problem in Boston; the subversion of the Head Start Program in Mississippi and in other States; and the abject condition of the rural poor throughout our country -- these are not isolated situations to be left to local authorities for resolution. They are State problems; moreover, they are national problems. The States must step into the breach. If they do not they can claim only a junior partnership position in our federal system.
Why are State legislatures in trouble? Put simply, they are in trouble because their responsibilities have soared with every jump in population count, while their procedures, pay, professional assistance, and personnel are still geared largely to the small problems and small population of yesteryear.
The more naive among us have assumed that reapportionment automatically will correct this condition. They are wrong. All of us can take comfort in the fact that, as of January 1st of this year, 39 States had reapportioned both houses of their legislatures on the basis of population. And all of us should take comfort in the defeat of the Dirksen amendment two weeks ago. But equitable apportionment merely solves a quantitative problem; it does not necessarily solve the qualitative problems I have cited.
It does not solve automatically the problems of 31 States with biennial sessions.
It does not necessarily solve the problems of 33 States with time limits on their regular legislative sessions.
It does not raise the median biennial pay of approximately $2,500 in the 16 States using a daily scale.
It does not improve the $4,800 median biennial pay in the 34 States using a salary scale.
It does not provide offices or secretarial assistance for the State legislators.
It does not assure reorganization of the standing committee system along contemporary
functional lines.
It does not strengthen inevitably the professional capability of the legislative reference services and councils in the 42 States which possess them.
It does not guarantee enactment of conflict-of-interest legislation in the States lacking them, nor effective lobbying statutes in the 24 lacking them.
In short, Baker v. Carr and the 60-odd reapportionment cases that have come in its wake do not meet directly the questions of improved procedures, better pay, less pressure politics and greater prestige. These are State issues that require State constitutional and statutory changes. Put more bluntly, they are reforms that only an aroused citizenry and legislature can enact.
Reapportionment ultimately will give the most dynamic sector of a State's population its fair share of representation. It will make State politics more competitive. It will probably produce a demand for greater governmental services. But all else is sheer conjecture.
"State legislatures," Chief Justice Warren wrote in the Baker v. Carr decision, "are, historically, the fountainhead of representative government in this country." If the fountainhead is to flow again, we must move beyond reapportionment. We must initiate the reforms that will convert our State legislatures into responsible and respected -- as well as representative -- deliberative bodies. What is more, we must recognize the impact the legislature exerts on the executive branch and the fiscal processes of the States. The "equal protection of the laws" guarantee of the Fourteenth Amendment will not pave the way to progress in these areas.
First there is the problem of the administrative organization and personnel management of the executive branch. Both are chiefly legislative creations. But most legislatures adhere to the view, as a recent study of Main's government phrased it, that "administrative fragmentation helps to make the executive agencies more responsive to legislative wishes and to popular needs . . ." The executive branch becomes thus a cluster of departments, boards, agencies, and commissions -- in Maine, numbering more than 120. In the popular mind, it is headed by the State's chief executive; in fact, it is headed by no one in particular. In addition, all of the factors contributing to a professional civil service -- a merit system, good personnel management, training opportunities, and competitive salary schedules -- are determined primarily by the legislature. In this day of big government, big budgets, big revenues, and big grant-in-aid programs, a governor must have some of the tools of modern management at his disposal. Charismatic leadership soon evaporates in an administrative morass, and brokerage politics can put out only minor brush fires in a jurisdictional jungle. The State legislatures, in their statutory and amending roles, have a primary responsibility for correcting this condition. All efforts to create a genuinely creative federalism will fail unless the States put their administrative houses in order.
Second, there is the problem of State legislatures modernizing the machinery for preparing the State budget and developing a competent organization in the legislature to review it. We have accomplished this at the Federal level: no less should be expected of State governments if they are to remain strong partners in our federal system. This need is underscored by the fact that combined State and local expenditures are expected to reach the $120-billion mark by 1972.
Most State governors should be given a wider latitude over the extent to which programs should be funded. They should be given more positive authority in drafting the budget. They should be given a budget officer who is their own man.
Today we have the technology to program executive budgets into computers, to determine the cost-effectiveness of programs, to produce model alternate fiscal plans, and to provide for long-range budget planning. At the same time, cybernetics can keep the executive office informed on changing needs and developing problem areas. It would also provide the State executive with a mechanism for identifying and evaluating more than 170 Federal aid programs available to meet the States' special needs.
But let me make this clear. The assignment of a greater budget power to the governor's office can serve the best interests of the people only if the legislative phase of the process is handled with equal competence. I emphasize the word "equal." As of today, few if any State legislatures have developed a satisfactory mechanism for testing an executive budget. Albert J. Abrams, in a recent article in the State Legislatures Progress Reporter, noted that instead of doing something about this, State legislators have developed "a bad case of inferiority complex":
"They retreated fiscally, failed to bring in economists, engineers and budget analysts to help evaluate the governors' proposals and, in effect, abandoned control over the purse strings. As a result, the imbalance between executive and legislative strength in fiscal policy-making has shriveled legislative power. The legislators generally are reduced to nitpicking, porkbarrel logrolling, frenzied, frustrated across-the-board budget slashing, or a polite "amen" to the governors' budgets."
Legislative committees must be staffed to ask the hard questions, to point up the inadequacies, and to provide the members with sufficient facts to make independent judgments and, where necessary, come up with better alternatives.
As a minimum requirement, legislatures should establish two new agencies to assist them in this field. First, a budget analysis agency should be created to apply cost-effectiveness concepts and to engage in regional and long-term budgeting. Second, a program audit center should be authorized to determine on a year-round basis whether executive agencies are carrying out prescribed policies, and to provide a management-type analysis of administration. A strengthened budgetary process is indispensable if the States are to marshal effectively their own revenues and those of the Federal Government for the critical years ahead. These reforms -- in both the legislative and executive branches -- are needed to achieve this goal.
The reform of State tax laws and financial procedures is a third basic area of serious intergovernmental concern. No subject for State legislature scrutiny is more important, more complex, more controversial. And none has generated greater attention at the other levels of government.
Ideally, two general principles should apply here: to obtain the maximum revenues possible to service the public needs of the people, and to do this in a manner which is fair and equitable to all persons affected. Unfortunately, the history of State constitutions and laws is filled with more examples of repudiation than of adherence to these principles. The result has been a spectrum of imbalances both in the procurement and the application of State and local financial resources.
Until these imbalances are corrected, it is meaningless to talk about Federal revenue sharing such as the Heller-Pechman proposal, or other unrestricted block grant schemes which could provide windfalls to some States and inequities to others.
What I am suggesting is that all States have a duty to insure a fair and balanced tax package across the board. The major State revenue source is still the yield from taxes levied on consumers. And broad-based progressive taxes still play only a minor overall role in State revenue systems.
Local property taxes are another source of intergovernmental fiscal concern. Such levies still provide nine out of every ten local tax dollars. They still provide nearly a third of combined State and local revenues. But they are not the exclusive problem of local government. The performance of this tax at the local level clearly influences the capacity of localities to carry out their State-assigned duties and the States' allocation of their own revenues. The States' interest, therefore – and I might add the Federal Government's interest also -- in the caliber of local property tax administrators is direct and inescapable.
Yet, most States have done little to force local tax officials to raise their assessments to the legal valuation standard, nor have they done much to equalize the existing assessments to a uniform percentage of market value. State legislatures must take a hard, critical look at their property laws. They must know precisely what the property tax situation is in each district, both with respect to the quality of assessment and collection, and to the utilization of the tax. They must change property tax laws to eliminate inequitable and unworkable restrictions, exemptions, and administrative procedures. They must guard against unequal distribution of the property tax burden. They must provide for greater centralization of assessment and collection. They must recognize the factors that undermine high standards of career assessors: popular election, part-time employment, uncertain tenure, required local residence, low pay, and the absence of legally-specified professional qualifications. And they should establish a State supervisory agency to improve property tax administration.
State and local governments increasingly assert that Federal taxes rob them of seriously needed revenues, and that the Federal Government should return more of its tax revenues on a general basis to these jurisdictions. They may have a point, but one thing is certain: such sharing should not even be considered until the States have taken every measure to obtain maximum revenue from all available sources and to equalize tax application and distribution.
The responsibility is squarely on the State legislatures to see that this is done.
WHAT THE FEDERAL GOVERNMENT CAN DO
In this era of creative federalism, the Federal Government is completely sympathetic to strengthening the States generally, and the State legislatures in particular. The contributions that revamped legislatures can make are fully recognized. The vital role that State administrators play is fully understood. The benefits of an up-to-date budgetary process are clearly perceived. The major contributions that a revamped system of State and local finances can make are of paramount concern. But the constitutional and statutory changes in these areas must come from the States themselves. And the focal point of this initiative inevitably must be the legislatures. There is where the real challenge lies.
The Federal Department, however, can contribute indirectly to this development. It can strengthen and coordinate its Federal grant-in-aid programs. It can place increasing emphasis on planning funds and technical assistance for the States and their localities, as the Departments of HEW, Labor, and Housing and Urban Development now are doing. It can enact the proposed Intergovernmental Cooperation Act of 1966 which I had the privilege of introducing last year and which passed the Senate unanimously last August 5th. It can simplify and make more uniform the disbursement of Federal grant funds to the States, as this legislation provides. It can eliminate requirements in grant legislation which restrict the governor's role in the budgetary process and impede State administrative reorganization, as this legislation authorizes. It can require that Federal aid programs be consistent with State and local urban plans, and it can help to strengthen State, regional and local planning, as this legislation is geared to do.
In terms of long-range action, the Federal Government can strengthen the machinery in the Executive Office of the President to provide a more effective means of coordinating and implementing the Nation's domestic programs, as my proposed National Council for Intergovernmental Affairs bill provides. It can assist State and local governments to upgrade the professional capability of their civil service, as my proposed Intergovernmental Personnel Act of 1966 authorizes.
But no matter how much help the Federal partner provides, no Federal legislation, no executive order, no administrative improvements of the Federal administrative establishment can get to the heart of most of the basic problems confronting State governments today. These involve State constitutional and statutory changes; a complete modernization of the taxing, financing, and administrative structure; and a deepening desire upon the part of the people for reform. This is as it should be.
Federalism, after all, implies a division of public authority and responsibilities. And federalism, in the long run, will be creative only if the people adopt this as their own goal.