(Senate - March 14, 1995)

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[Pages S3875-S3889]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]


  Mr. KEMPTHORNE. Mr. President, I submit a report of the committee of 
conference on the Unfunded Mandate Reform Act of 1995 and ask for its 
immediate consideration.
  The PRESIDING OFFICER. The report will be stated.
  The assistant legislative clerk read as follows:

       The committee on conference on the disagreeing votes of the 
     two Houses on the amendment of the House to the bill (S. 1) 
     to curb the practice of imposing unfunded Federal mandates on 
     States and local governments; to strengthen the partnership 
     between the Federal Government and State, local and tribal 
     governments; to end the imposition, in the absence of full 
     consideration by Congress, of Federal mandates on State, 
     local, and tribal governments without adequate funding, in a 
     manner that may displace other essential governmental 
     priorities; and to ensure that the Federal Government pays 
     the costs incurred by those governments in complying with 
     certain requirements under Federal statutes and regulations; 
     and for other purposes, having met, after full and free 
     conference, have agreed to recommend and do recommend to 
     their respective Houses this report, signed by all of the 

  The PRESIDING OFFICER. Without objection, the Senate will proceed to 
the consideration of the conference report.
  (The conference report is printed in the House proceedings of the 
Record of March 13, 1995.)
  The PRESIDING OFFICER. There will be 3 hours debate equally divided 
on the conference report.
  Mr. KEMPTHORNE. Mr. President, I ask for the yeas and nays on the 
vote on the conference report on S. 1.
  The PRESIDING OFFICER. Is there a sufficient second?
  There is a sufficient second.
  The yeas and nays were ordered.
  Mr. KEMPTHORNE. It is my understanding that vote will occur tomorrow, 
immediately following the 10:30 cloture vote.
  The PRESIDING OFFICER. The Senator is correct.
  Mr. KEMPTHORNE. Mr. President, we have certainly come a long way 
since May 1993 when we first began this effort. Now, 22 months later--
with Governors, mayors, county commissioners, tribal leaders, school 
board members, and business leaders throughout the country looking on--
Congress is about to end the debate on mandate relief, and begin a new 
partnership with States, cities, counties, tribes, schools, and the 
private sector by voting on final passage of the conference report on 
S. 1 the Unfunded Mandates Reform Act of 1995.
  This bill has been described as landmark legislation, as far-reaching 
and visionary. It is all of those. Ever since 1791 when the 10th 
amendment was first ratified the Federal Government has slowly eroded 
the power of the States. Today, with passage of S. 1, we begin to 
reverse that role. S. 1 is founded on the premise of responsibility and 
accountability. This will change the mind set of Washington, DC, from 
this point forward.
  First, it requires the Federal Government to know and pay for the 
costs of mandates before imposing them on State, local, and tribal 
  Second, the Federal Government should know the costs and impacts of 
mandates before imposing them on the private sector.
  S. 1 thoroughly reforms the process by which Congress and Federal 
agencies impose new mandates on the public and private sector. Congress 
must identify the costs of new mandates imposed on State and local 
governments and the private sector. Congress must pay the costs of the 
new mandates on State and local governments by either providing 
spending, increasing receipts or through appropriations. If a mandate 
is to be paid for with a future appropriation, the appropriation must 
be provided for the mandate to take effect. If subsequent 
appropriations are insufficient to pay for the mandates, the mandates 
will cease to be effective unless Congress provides otherwise by 
[[Page S3876]] law within 90 days of the beginning of the fiscal year.
  This process is enforced by a point of order. Legislation
   that does not meet these requirements can be ruled out of order, 
blocking further consideration in the House and Senate. Debate 
continues only if a majority of the House and Senate votes to do so. A 
rollcall vote will decide whether the Senate and House should consider 
unfunded mandate legislation. S. 1 applies to all legislation--
committee bills, House and Senate floor amendments, motions and 
conference reports--containing mandates.

  Required cost estimates of legislated mandates will be done by the 
nonpartisan Congressional Budget Office. CBO will consult with State 
and local officials in preparing estimates.
  Existing State and local government mandates will be reviewed by the 
Advisory Commission on Intergovernmental Relations. This Commission, 
comprised of State, local and Federal officials, will report to the 
President and Congress on existing mandates that should be modified or 
repealed. The Commission's final report is due in 12 months.
  In developing legislation and Federal rules affecting State and local 
governments, Congress and Federal agencies are to consult with State 
and local government officials in the drafting of legislation.
  S. 1 does not apply to certain mandates, including those that enforce 
constitutional rights of individuals, prohibit discriminations on the 
basis of race, age, religion, national origin, handicapped or 
disability status, are necessary to protect national security or 
provide for emergencies.
  S. 1 applies to legislation being considered in Congress that imposes 
mandates of greater than $50 million on State and local governments and 
$100 million on the private sector. S. 1 applies to regulations being 
considered by Federal agencies that are greater than $100 million. S. 1 
will apply to legislation considered in Congress either 90 days after 
additional appropriations are provided to CBO to do required cost 
estimates or January 1, 1996, whichever comes first.
  S. 1 got better and smarter during the legislative process. S. 1 was 
better than last year's bill; after floor consideration, S. 1 was 
better than when it was first introduced. The record will show that a 
number of Senators made important contributions to this bill. My 
approach to amendments was simple. If they improved the bill, if they 
clarified the bill, if they made the bill smarter, I wanted to get 
those amendments in this bill. There were 9 strengthening amendments to 
S. 1 that were agreed to and we tabled 18 weakening amendments. Two 
examples of amendments that strengthen S. 1 were Senator Byrd's 
amendment that improved and perfected the point of order and Senator 
McCain's amendment that applied the point of order to appropriations.
  I felt we took a solid bill in S. 1 to the conference committee, and 
as chairman of the conference, I worked to protect the Senate position. 
Virtually every amendment adopted by the Senate is in this report.
  As Senators know, it took several weeks of negotiations between the 
House and Senate to write this final conference report. I want to 
review the major issues that the conferees had to resolve.
  First, there is the issue of judicial review. As Senators know S. 1 
said that nothing in this bill was judicially reviewable. The House 
bill provided that virtually everything contained in its unfunded 
mandates bill would be reviewed by courts.
  To understand the significance of these two approaches, remember that 
in S. 1 we required that federal agencies do cost/benefits analyses of 
mandates imposed on State, local and tribal Governments. In S. 1 we 
added a cost benefits analysis for the private sector. This requirement 
began as a codification of the Reagan Executive order on federalism and
 was designed to provide general direction to agencies and foster 
greater sensitivity on the issue of mandates. The Executive order did 
not provide for review of agency compliance with the Executive order's 
requirements and it also allowed agencies to seek waivers of the 
requirements imposed by the Executive order for cause.

  I supported the lack of judicial review in S. 1 for good reason. 
First, my State of Idaho has been devastated by the ability of private 
individuals and philosophically motivated groups to slow down or stop 
legitimate and necessary natural resource industries in my State 
through the use of judicial review of agency decisionmaking. Timber and 
salvage sales for one have been delayed to the point that the forests 
of Idaho have been turned into a tinder box for yearly summer forest 
fires. Second, I supported the concept of no judicial review in the 
original S. 1 because I did not think that the requirements of title I 
of this bill, with their emphasis on legislative operation should allow 
judicial review. I saw a possibility of unconstitutional interference 
if we were to invite the judicial branch into the workings of Congress.
  The House bill, H.R. 5, differed from S. 1 in a most significant way. 
The House did not include in its bill a prohibition of judicial review. 
In fact instead of addressing it, the House bill simply avoided the 
issue entirely. As a result, under H.R. 5, all agency rulemakings would 
be subject to the Administrative Procedures Act in title 5 of the 
United States Code. Under the House bill, virtually everything could be 
reviewed and interpreted by the courts. Courts could have the power to 
say whether a cost estimate was correctly prepared, whether agencies 
had consulted enough economists, or had consulted the right experts. 
Further, courts could have stopped any and all rules from being issued 
pending the completion of this analysis.
  I am no fan of agency rulemakings. I support agency rulemaking 
moratoriums. We have had enough rules and the people of America want 
and need a rest from the heavyhanded Federal bureaucrats who make their 
livelihoods from dictating Federal policy to the people who pick up the 
tab. But neither am I a proponent of putting lawyers to work 
challenging rules for the sake of delay or wasting the taxpayers money 
in time consuming Federal rules that languish in the courts.
  Therefore, in conference we were faced with a couple of very 
difficult problems. We had a Senate bill which passed with a 90-percent 
majority without judicial review and we had a House bill which had 
passed with an almost identical percentage of approval which had 
virtually unfettered judicial review. The main reason that the House 
wanted judicial review was the belief that Federal agencies were 
ignoring the requirements of Congress. One of the statutes they cited 
in support of their assertion was the Regulatory Flexibility Act. That 
act is not judicially reviewable and there is general belief that the 
agencies have a poor record of compliance. The House therefore wanted 
to make sure that the executive branch would observe the requirements 
of Congress--not an unreasonable request.
  As a result of the inherent conflict between the parties on this 
issue, I suggested that we develop a checklist approach to a limited 
judicial review. The theory would be that we should provide a method 
which would ensure that agencies would provide the analysis without 
allowing courts to impose their judgement on the subjective quality of 
the agency's compliance. It is important to note that the analyses 
required by S. 1 act as additional requirements on statutes creating 
mandates. We call the statute actually creating the mandate the 
underlying statute. We wanted to ensure that the cost/benefits 
requirements of S. 1 would not supersede cost/benefit analyses in 
either an existing law or require a cost benefit analysis where one was 
specifically prohibited in an underlying statute.
  The conference committee reviewed what title II directed agencies to 
do to make sure that agencies could meet the requirements. We cannot 
complain of an agency's failure of compliance with the requirements of 
Congress if
 we are irresponsible in what we ask them to do and if we are vague in 
our instructions. Therefore we had to redraft the requirements of title 
II in S. 1 to make sure that those requirements were tighter, more 
efficient and addressed the problem we sought to resolve.

  Let me take a second to talk about the changes to title II of S. 1 as 
it comes out of conference. Recognize that most of the changes to title 
II are as a result of our need to tighten up 
[[Page S3877]] the requirements if we are going to have judicial 
  S. 1 as passed by the Senate provided that agencies would assess the 
effect of mandates on State, local government and the private sector 
and seek to minimize the burdens. However, if you are going to allow 
judicial review, minimizing the burden is so unspecific and so 
subjective that virtually every rulemaking would be challenged on that 
basis alone.
  S. 1, as passed by the Senate, provided that agencies would develop a 
plan to allow elected State, local and tribal officials to have input 
into agency rulemakings, but there was some fear that the Federal 
Advisory Committee Act could be used to prevent local officials from 
meeting with Federal officials. Judicial review of this issue would be 
a haven for lawyers. As a result of some of these problems and others, 
we knew that some redrafting of title II would be in order and would be 
  Title II as it comes out of conference is more objective, more 
achievable and more effective than in either the House or Senate passed 
  Title II provides that for every rulemaking each agency should assess 
the effects of regulatory action on States, local governments and the 
private sector. For significant rulemakings, which are judicially 
reviewable, an agency shall provide; a written statement of the 
authority under which the agency is proceeding; a qualitative and 
quantitative assessment of the cost and benefits of the rule; 
estimates, to the extent its feasible to determine it, of the future 
compliance costs of the mandate and any disproportionate effect on 
particular regions of the country or sectors of the economy; a macro 
economic analysis of the effect of the rule on the national economy; 
and, a description of the agency's contacts with State, local and 
tribal governments.
  New in title II is a provision which clarifies that the Federal 
Advisory Committee Act does not apply to meetings between Federal 
officials and elected officers of State, local and tribal governments 
where those officials want to make their views, and the views of their 
constituents known. Local officials should not be shut out of the 
process. We want to know their views and get their advice.
  We also added a provision previously in the House bill which requires 
that agencies identify and consider the least costly, most cost-
effective or least burdensome alternative to achieve the objective of 
the rule containing a federal mandate. We require the OMB director to 
report specifically on this least burdensome regulation requirement in 
1 year and we require an annual statement from the OMB director on 
agency compliance with title II.
  The judicial review provision in the conference report of S. 1, 
provides limited scope of review under the APA if an agency unlawfully 
withholds or unreasonably delays compliance with the requirements of S. 
1. A court would look to see if the agency had prepared the written 
statement required by section 202 and 203. If the analyses, statement, 
description or written plan were not completed the court could compel 
the agency to complete the requirements of section 202 and 203. 
However, to ensure that Federal rules were not delayed by endless 
litigation, S. 1 provides that failure by the agency to provide the 
analyses, statement, description or written plan could not be used to 
stay, enjoin, invalidate or otherwise affect the rule.
  We also wanted to make sure that the underlying analysis needed to 
substantiate a rule under the requirements of S. 1 couldn't be used to 
invalidate the rule under some
 other rulemaking requirement in the underlying statute which imposed a 
mandate. But, if the analysis which was used to meet S. 1 requirements 
was provided pursuant to the underlying statute which imposed a 
mandate, then a court in review could invalidate the rulemaking based 
on that underlying statute.

  Finally, S. 1 provides a limitation of 180 days on the time under 
which an action could be filed unless the underlying statute provided a 
different period. The judicial review provisions apply to proposed 
regulations issued after October 1, 1995.
  No other provision of S. 1 is judicially reviewable. Title I deals 
with the requirements of Congress, and judicial review is not 
appropriate for the internal actions of Congress. Title III deals with 
ACIR's review of existing mandates and judicial review is not at issue. 
The remainder of title II deals with either general requirements that 
do not lend themselves to judicial review or with analyses which are 
essentially subjective--like the least burdensome option requirement 
added to the conference report on S. 1.
  In all, I think we have developed a system which addressed the 
concerns in the House compelling agencies to comply with the 
requirements of Congress while being responsible to the agencies we 
have asked to perform.
  Last December I spoke at the annual meeting of the Council of State 
Governments. On the stage, next to the podium, was the flag of the 
United States of America. And behind us, as a backdrop, were the flags 
of each of the 50 States. I told the folks who were gathered there, 
``That flag of the United States of America represents the greatest 
nation in the world! But let us not lose sight of the fact that its 
greatness is comprised of the 50 sovereign states that make up the 
United States. We are the United States of America, we are not the 
Federal Government of America!''
  For the past two decades, the Federal Government has dominated our 
States and cities. Congress and the executive branch have not been 
partners with States and cities. The Federal Government has been the 
overseer and the mandate maker, telling States and cities what to do, 
when, where, and how, but never paying for it.
  Congress passed legislation without ever knowing the costs or 
consequences of their actions on State and local governments. The 
mandates made Congress feel good, and, for a while, even look good back 
  But this is not the federalism that our Founding Fathers intended. 
Stanley Aranoff, who is the senate president in Ohio, stated,

       The Constitution, and specifically the 10th Amendment, 
     guarantees that certain functions will be performed by 
     certain levels of government, thus ensuring direct 
     accountability of the elected official to the voters. Our 
     Constitution guarantees a federal, state, and local 
     partnership. Unfunded mandates undermines, blurs, and 
     corrupts that fundamental understanding upon which our 
     governmental framework is based.

  One of the big steps forward, I believe, in helping to reaffirm the 
10th amendment rights is the effort to stop these unfunded Federal 
mandates which are simply hidden Federal taxes. We should not be paying 
for national programs with local property taxes.
  This legislation forces Congress and agencies to know the mandate 
costs it imposes on the public and private sector. It requires Congress 
to pay for mandates imposed on State and local governments, and go on 
record with a vote when it does not.
  S. 1 reflects a philosophy of limited government, that the best 
government is the government that governs least and to let local issues 
be decided by local officials and their citizens.
  Those local officials set their priorities based on their finite 
resources. But for years, Congress has not had to
 worry about that. We come to the floor, and stand up and argue 
righteously and with great passion about the problems that are facing 
the United States, knowing full well that until now, we have not been 
held accountable. Congress has not had to pay for it. Those mandates 
have not been part of the Federal budget process, and the local 
governments end up paying for it, because it is mandated by Congress.

  The Federal Government has, in essence, made local and State elected 
leaders nothing more than Federal tax collectors. Those officials have 
been very vocal about how they resent that, and they have every right 
to resent it.
  Ben Nelson, the Democratic Governor of Nebraska, pretty well sums up 
the frustration of the States when he says: ``I was elected Governor, 
not the Administrator of Federal programs for Nebraska.''
  Now, people say, ``How much do these Federal mandates cost?'' Nobody 
knows. Congress does not know, because we have never, ever asked that 
question before voting on them.
  And so we must be intellectually honest. If it is a Federal program, 
pay for it with Federal money, if it is State, pay for it with State 
money, and if it is local, pay for it at the local level.
   [[Page S3878]] Mr. President, this moment would not be possible 
without my partners in State and local government, and the private 
sector. I close my remarks by reminding Senators that S. 1 is strongly 
endorsed by the: U.S. Conference of Mayors, National Association of 
Counties, National Governors Association, National Conference of State 
Legislatures, National Association of School Boards, National League of 
Cities, the U.S. Chamber of Commerce, National Association of 
Homebuilders, National Association of Realtors, NFIB, and the Small 
Business Legislative Exchange Council.
  I want to thank the citizens of Idaho for the opportunity they have 
given me in serving in the Senate. I hope they will take a small 
measure of pride that the effort to reform unfunded mandates was born 
in Idaho.
  There are many people who made significant contributions to this 
process that I would like to thank. I want to especially thank our 
majority leader, Senator Bob Dole. His support and commitment to 
mandate relief was critical to our success. His designation of our 
mandate legislation as S. 1 insured that we would have the highest 
priority for the 104th Congress. I also want to acknowledge the 
dedication and hard work for my Senate colleagues on the conference 
committee. First, of course, is my long time partner on mandate relief 
Senator John Glenn. As we began this crusade we repeatedly stressed 
that relief from Federal mandates was not a Republican issue or a 
Democratic issue. We knew that if we were to be successful we had to 
keep the debate nonpartisan and focused on the merits of the issue. 
Without John Glenn that would not have been possible and we would not 
be here today voting on final passage of mandate relief legislation. I 
believe our friendship and partnership have deepened during this 
  I note that last session, when the Democratic Party was the majority 
party and Senator Glenn was the chairman of the Governmental Affairs 
Committee, this was not necessarily a popular issue to take up. But he 
scheduled the hearings, he held the hearings, and he forged a 
partnership with me so we could come forward. It has allowed us to be 
where we are today. Ohio is rightfully proud of Senator Glenn.
  Two key members of our conference team were the Republican chairmen 
of the two committees of jurisdiction, Senator Roth of Governmental 
Affairs and Senator Domenici of the Budget Committee. These two 
experienced and knowledgeable leaders gave me valuable advice and 
constant support throughout the conference process and were 
instrumental in moving us toward the successful conclusion we have 
before us today.
  Also my friend Senator Jim Exon, the ranking member of the Budget 
Committee who offered valuable insight during the committee process. 
Senator Exon has been a long-time supporter of relief from mandates and 
cosponsored my original bill in the last session of Congress.
  Many other Senators--Democrats and Republicans--on both sides of the 
aisle have made enormous contributions to this legislation. I want to 
thank Senators Craig, Burns, Coverdell, and Gregg for being the 
original cosponsors of the first bill I introduced in Congress, and to 
Senators Hatch and Brown for their help.
  And I must give a great amount of credit and thanks to our House 
  Speaker Gingrich also made this a high priority, and he so stated 
repeatedly. Chairman Bill Clinger of the Government Reform and 
Oversight Committee and Congressman Rob Portman were terrific teammates 
and diligent partners on this legislation. We have had other strong 
partners in Congressmen Gary Condit, David Dreier, and Tom Davis.
  I have often mentioned that mandate relief legislation was my top 
priority when I came to Congress. I want to acknowledge those members 
of my personal staff that worked so long and hard in helping me 
accomplish this important personal goal. My lead person in conference 
and the principal author of the final bill, my legislative director 
W.H. ``Buzz'' Fawcett, who was my city attorney when I was mayor of 
Boise, Gary L. Smith, my deputy legislative director who also came with 
me from Boise where he was a city council member and my administrative 
assistant, and my current administrative assistant in the Senate, Brian 
Waidmann who brought his invaluable experience and expertise on 
congressional process to our team.
  But most of all I would like to share this victory with my family: my 
wife Patricia, my daughter Heather, and son Jeff. Perhaps only other 
Members of Congress can fully appreciate the sacrifices our families 
make on our behalf. I have a very special family that I appreciate very 
  I want to conclude by reading to you a quote from a Founding Father, 
James Madison. Here is what he said:

       Ambitious encroachments of the federal government on the 
     authority of the state governments, would not excite the 
     opposition of a single state, or of a few states only. They 
     would be signals of general alarm. Every government would 
     espouse the common cause. A correspondence would be opened, 
     plans of resistance would be concerted, one spirit would 
     animate and conduct the whole.

  James Madison, the great visionary, predicted that this sort of thing 
would happen by the Federal Government. But he also said that someone 
will band together and stop it. And that is what S. 1 is all about.
  Mr. President, I yield the floor and reserve the remainder of my 
  Mr. GLENN addressed the Chair.
  The PRESIDING OFFICER. The Senator from Ohio.
  Mr. GLENN. Mr. President, this is a day that has been long in coming. 
We have worked for the better part of 2 years to get this legislation 
to the point where it is now, out of conference and here to get its 
final stamp of approval by the U.S. Senate. And with the same action 
taking place over in the House, that means this legislation will 
finally go to the President, who has announced his support for this 
  This has been a long process. To those not directly involved in all 
the committee work and I do not know how many hundreds of meetings and 
so on involved with all of this, without having been involved directly 
with some of that, I think it is difficult to appreciate what has 
happened with regard to this legislation.
  It is landmark legislation. I think we have come up with a very 
excellent product here, one that literally does change the relationship 
between the Federal, State and local governments for the first time in 
probably 55 or 60 years.
  This is legislation that passed the Senate back in January by a vote 
of 86 to 10, and my hope is that we will be able to pass this bill 
through the House and Senate tomorrow morning and get it to the 
President shortly.
  Before I go into a description of the conference report, I would like 
to provide just a little bit of background to the whole unfunded 
Federal mandates debate.
  On October 27, 1993, State and local elected officials from all over 
the Nation came to Washington and declared that day to be ``National 
Unfunded Mandates Day.'' These officials conveyed a very powerful 
message to Congress and the Clinton administration on the need for 
Federal mandate reform and relief. They raised four major objections to 
unfunded Federal mandates.
  First, unfunded Federal mandates impose unreasonable fiscal burdens 
on their budgets.
  Second, they limit State and local government flexibility to address 
more pressing local problems like crime and education.
  Third, Federal mandates too often come in a one-size-fits-all box 
that stifles the development of what might be more innovative local 
efforts--efforts that ultimately may be more effective in solving the 
problem the Federal mandate is meant to address.
  And, fourth, they allow Congress to get credit for passing some 
worthy mandate or program, while leaving State and local governments 
with the difficult task of cutting services or raising taxes in order 
to pay for it. And that fourth item was probably the most important of 
  In hearings held by the Committee on Governmental Affairs in both 
this and the last Congress, we heard testimony from elected State and 
local officials from both parties representing all sizes of 
government--State, local, county, townships, all levels and all sizes 
of government. It was clear from 
[[Page S3879]] the testimony that unfunded mandates hit small counties 
and townships just as hard as they do big cities and larger States.
  I think it is worth stepping back and taking a look at the evolution 
of the Federal-State-local relationship over the last decade and a 
half, so we can put this debate into some historical context. I believe 
the seeds from which sprang the mandate reform movement can literally 
be traced clear back to the so-called policy of new federalism, a 
policy which resulted in a gradual but steady shift in governing 
responsibilities from the Federal Government to State and local 
government over the last 10 to 15 years. During that time period, 
Federal aid to State and local governments was severely cut or even 
eliminated in a number of key domestic program areas. At the same time, 
enactment and subsequent implementation of various Federal statutes 
passed on new costs to State and local governments. In simple terms, 
State and local governments ended up receiving less of the Federal 
carrot and more of the Federal stick.
  The actual cost of Federal mandates.
  Let us examine the cost issue first. While there has been substantial 
debate on the actual costs of Federal mandates, suffice it to say that 
almost all participants in the debate agree that there is not complete 
data on Federal mandates to State and local governments. In fact, one 
of the major objectives of S. 1 is to develop better information and 
data on the cost of mandates and to force that to be considered up 
front. Likewise, there is even less information available on estimates 
of what potential benefits might be derived from selected Federal 
mandates--a point made by representatives from the disability, 
environmental, and labor community in the committee's second hearing in 
the last Congress.
  Nonetheless, there have been efforts made in the past to measure the 
cost impacts of Federal mandates on State and local governments.
  And those efforts do show that costs appear to be rising. Since 1981, 
CBO, the Congressional Budget Office, has been preparing cost estimates 
of major legislation reported by committee with an expected annual cost 
to State and local governments in excess of $200 million. According to 
CBO, 89 bills, with an estimated annual cost in excess of $200 million 
each, were reported out of committee between 1983 and 1988.
  I would point out one major caveat with CBO's analysis--it does not 
indicate whether these bills funded the costs or not, nor how many of 
the bills were eventually enacted. Still, even with a rough 
calculation, CBO's analysis shows that committees reported out bills 
with an average estimated new cost of at least $17.8 billion per year 
to State and local governments. In total, 382 bills were reported from 
committees over the 6-year period with some new costs to State and 
local government. So, if anything, the $17.8 billion figure is a 
conservative estimate for reported bills.
  Federal environmental mandates head the list of areas that State and 
local officials claim to be the most burdensome. A closer look at two 
of the studies done on the cost of State and local governments of 
compliance with environmental statutes does indicate that these costs 
appear to be rising. A 1990 EPA study, titled ``Environmental 
Investments: The Cost of a Clean Environment,'' estimates that total 
annual costs of environmental mandates from all levels of Government to 
State and local governments will rise from $22.2 billion in 1987 to 
$37.1 billion by the year 2000--an increase in real terms of 67 
  EPA estimates that the cost of environmental mandates to State 
governments will rise from $3 billion in 1987 to $4.5 billion by the 
year 2000, a 48-percent increase. Over the same timeframe, the annual 
costs of environmental mandates to local governments is estimated to 
increase from $19.2 billion to $32.6 billion. That is a 70-percent 
  According to the Vice President's National Performance Review, the 
total annual cost of environmental mandates to State and local 
governments, when adjusted for inflation, will reach close to $44 
billion by the end of this century.
  The city of Columbus, in my home State of Ohio, also noted a trend in 
rising costs for city compliance with Federal environmental mandates. 
The mayor of Columbus, Gregg Lashutka, has taken a personal interest in 
this and has done a superb job in detailing what the impact is on a 
medium-sized U.S. city from Federal mandates.
  Our Governor, George Voinovich, has represented the National 
Governors Association in his representation of wanting this legislation 
through all and has given a lot of information that has come from the 
Governors across the country on this. Probably the most definitive 
study of all, as far as the impact on the city, is what Mayor Lashutka 
has done in Columbus, OH.
  In his study, the city concluded that its cost of compliance for 
environmental statutes would rise from $62.1 million in 1991 to $107.4 
million in 1995. That is--in 1991 constant dollars--a 73-percent 
increase. The city estimates that its share of the total city budget 
going to pay for the mandates will increase from 10.6 percent to 18.3 
percent over that timeframe. This is just one medium-sized American 
  In addition to environmental requirements, State and local officials 
in our committee hearings cited other Federal requirements as 
burdensome and costly. They highlighted compliance with the Americans 
with Disabilities Act and the Motor-Voter Registration Act, complying 
with the administrative requirements that go with implementing many 
Federal programs and meeting Federal criminal justice and education 
  Now, I note that while each of these individual programs or 
requirements clearly carries with them costs to State and local 
governments, costs which we have too often ignored in the past, I 
believe that on a case-by-case basis, each of these mandates has 
substantial benefits to our society and our Nation as a whole.
  Otherwise I, along with many of my colleagues in the Senate, would 
not have voted to enact them in the first place. State and local 
officials readily concede that individual mandates on a case-by-case 
basis may indeed be worthy, but when looking at all mandates spanning 
across the entire mammoth of Federal laws and regulations, we begin to 
understand that it is the aggregate impact of all Federal mandates that 
has spurred the calls for mandate reform and relief.
  The Advisory Commission on Intergovernmental Relations testified in 
our April hearings that the number of major Federal statutes with 
explicit mandates on State and local governments went from zero during 
the period of 1941 to 1964. In other words, we did not pass along the 
bill during that period from 1941 to 1964.
  But then it went to the Federal mandates during the rest of the 
1960's, went to 25 in the 1970's, and 27 in the 1980's. However, to 
truly reach a better understanding of the Federal mandates debate, we 
must also look at the Federal funding picture, vis-a-vis State and 
local governments.
  Addressing that first under Federal aid and to State and local 
governments, the record shows that Federal discretionary aid to State 
and local governments to both implement Federal policies and 
directives, as well as complying with them, saw a sharp drop in the 
  An examination of Census Bureau data on sources of State and local 
government revenue shows a decreasing Federal role in the funding of 
State and local governments. In 1979, the Federal Government's 
contribution to State and local governments' revenues reached 18.6 
percent. By 1989, the Federal contribution of the State and local 
revenue pie had instead daily shrunk to 13.2 percent before edging up 
to 14.3 percent in 1991, the latest year data was available.
  What contributed to the declining trend in the Federal financing of 
State and local governments? A closer look at patterns in Federal 
discretionary aid programs to State and local governments during the 
1980's provides the answer. According to the Federal Funds Information 
Service, between 1981 and 1990, Federal discretionary program funding 
to State and local government rose slightly from $47.5 to $51.6 
  However, this figure, when adjusted for inflation, tells a much 
different story. Federal aid dropped 28 percent in real terms over the 
decade. A number of vital Federal aid programs to State and local 
government experienced 
[[Page S3880]] sharp cuts, and in some cases outright elimination, 
during the decade.
  In 1986, the administration and Congress agreed to terminate the 
General Revenue Sharing Program. We all remember that one. That was a 
program that provided approximately $4.5 billion annually to local 
governments and allowed them very broad discretion on how to spend the 
  Since its inception in 1972, general revenue sharing has provided 
approximately $83 billion to State and local government. Unfortunately, 
the Reagan administration succeeded in terminating the program. 
Congress followed its lead and approved that. There were other 
important Federal and State and local programs that were substantially 
cut back between 1981 and 1990. They include the economic development 
assistance, community development block grants, mass transit, refugee 
assistance, and low-income home energy assistance.
  Luckily, under both the Bush and Clinton administrations, we managed 
to restore some of the needed funding--I repeat, needed funding--to 
these programs. And still, in real dollars, funds for discretionary aid 
programs to State and local governments remain today 18 percent below 
their 1981 levels. That is despite the fact we have put more of an 
unfunded mandates load onto the backs of the State and local 
  Looking at our committee's legislative efforts in the last Congress, 
eight bills were referred to the Governmental Affairs Committee that 
touched on this aspect of the unfunded mandates Federal mandates 
  After two hearings, we marked up a bill. I think it could be called, 
at least in part, a compromise bill. The basic part of it, though, was 
the bill that Senator Kempthorne has submitted, and it became the 
vehicle that borrowed the best of the various provisions and 
requirements from the bills that had been submitted. It was basically--
the basic bill--his work.
  We worked closely in a deliberative, bipartisan fashion, and he was 
the de facto leadership on this issue. Along with other Members, and 
with the administration, we moved ahead with this legislation. What 
became known as the Kempthorne-Glenn compromise has the endorsement and 
strong support of the seven groups representing State and local 
governments. They are the National Governors Association, the National 
Conference of State Legislators, the Council on State Governments, the 
National League of Cities, the U.S. Conference of Mayors, the National 
Association of Counties, and the International City Management 
Association. It had the backing of the Clinton administration, and was 
endorsed by such editorial boards as the New York Times, the Cleveland 
Plain Dealer, and other newspapers across the country, both large and 
small. That largely embodies or includes, also, all that we had last 
year in Senate bill 993.
  Let me just say that on this bill, if there is anyone who can be 
looked at as the father of this bill and the one who really kept going 
on this and kept interest going, it is Senator Kempthorne. He did a 
magnificent job on this bill, not only here in Washington, but he 
traveled all over the country, meeting repeatedly with different groups 
representing those seven organizations that I just mentioned in getting 
their views on this legislation and bringing it back, putting it 
together. And he did a superb job in keeping contact with all these 
people. He deserves the full credit for being the sparkplug for this 
  (Mr. GORTON assumed the chair.)
  Mr. GLENN. Mr. President, let me explain what the bill does.
  It requires the Congressional Budget Office to conduct State, local 
and tribal cost estimates on legislation that imposes new Federal 
mandates in excess of $50 million annually onto the budgets of State, 
local, and tribal governments. The current law requires these estimates 
at a $200 million threshold, and I believe that that high a figure 
allows a lot of Federal mandates to slip through without being scored. 
Two hundred million dollars spread equally among all the States may not 
be much, but if it falls particularly hard on any one State or any one 
region, which does happen with legislation, it can be a substantial 
  Let me make clear, however, that what CBO will score here are new 
Federal mandates--new Federal mandates--not what State, local, and 
tribal governments are spending now to comply with existing mandates, 
nor what they are spending to comply with their own laws and mandates.
  Second, and I think most importantly, is that the bill holds Congress 
accountable for imposing additional unfunded Federal mandates. We do 
this by requiring a majority point-of-order vote on any legislation 
that imposes new unfunded Federal mandates in excess of a $50 million 
annual cost to State, local, or tribal governments.
  To avoid the point of order, the sponsor of the bill would have to 
authorize funding to cover the cost to State and local governments of 
the Federal mandate or otherwise find ways to pay for the mandate. This 
could come from the expansion of an existing grant or subsidized loan 
program or the creation of a new one or perhaps a raising of new 
revenues or user fees.
  The authorizing committee must also build into the legislation 
certain provisions to go into effect if funds for the mandate are not 
fully appropriated or not appropriated at all. This was the basic 
thrust of the Byrd amendment which the House receded to in conference 
and accepted in its entirety. The House bill would have left the fate 
of an unfunded or underfunded mandate in the hands of the Federal 
bureaucracy rather than in the hands of Congress where it properly 
  Under the Byrd amendment, the authorizing committee would have to put 
expedited procedures into the underlying intergovernmental mandates 
bill that would direct the relevant Federal agency to submit a 
statement based on a reestimate done in consultation with State, local, 
and tribal governments that appropriations are sufficient to pay for 
the mandate or the agency submits legislative recommendations to 
implement a less costly mandate or to render the mandate ineffective 
for the fiscal year.
  Under the expedited procedures, the authorizing committee must 
provide for consideration in both Houses of the agency statement or 
legislative recommendations within 60 calendar days. After the 60-day 
time period expires, the mandate ceases to be effective unless Congress 
provides otherwise by law. And I will discuss the Byrd amendment in 
greater detail a little later in my statement.
  The conference report on S. 1 also includes provisions for the 
analysis of legislation that imposes mandates on the private sector. 
CBO would have to complete a private sector cost estimate on bills 
reported by committee with a $100 million or more annual cost 
threshold. In the Senate bill, we had a threshold of $200 million and 
the House had $50 million as their threshold, so we split the 
difference and wound up with $100 million being our threshold.
  We do exempt certain Federal laws from this bill. Civil rights and 
constitutional rights are excluded. National security, emergency 
legislation, and ratification of international treaties are also 
  I want to also point out that the bill does not prohibit Congress 
from passing unfunded Federal mandates. Let me repeat that. It does not 
prohibit Congress from passing unfunded Federal mandates. There may be 
times when it is appropriate, for whatever purpose, to ask State and 
local governments to pick up the tab for Federal mandates. But the 
legislation does force us to take into consideration the cost of the 
unfunded mandates up front, consider it in its entirety with a point of 
order to lie against it if it is not funded. But the debate over 
whether it is appropriate to ask State and local governments at times 
whether it is a constitutional matter or whatever it might be, to pick 
up the tab across the country--all States--let that debate take place 
on the Senate floor, as it will under this legislation, and let the 
majority work its will on the specific mandate in the legislation.
  The Kempthorne-Glenn bill also addresses regulatory mandates. We all 
know how the Federal bureaucracy can impose burdensome and inflexible 
regulations on State and local governments, as well as on others who 
end up trapped in the bureaucracy's regulatory net. In the committee's 
November hearing in 1993, we heard testimony from Susan Ritter. She is 
county auditor for Renville County, ND. Ms. Ritter 
[[Page S3881]] noted that she comes from the town of Sherwood in her 
State with a total population of 286 people, and they will have to 
spend $2,000, which is one-half of their annual budget on testing the 
water supply in order to comply with certain EPA regulations.
  Clearly, there is no way that that town is going to be able to meet 
this kind of a requirement. So, consistent with the President's 
Executive orders, we have required that Federal agencies conduct cost-
benefit analysis and assessments on major regulations that impact 
State, local, and tribal governments, as well as the private sector. We 
have allowed a limited judicial review of agency preparation of some of 
those assessments and analysis. The House would have allowed full scale 
judicial review of practically everything, of both the agency analysis 
and the CBO cost estimates. This could have been a way of almost 
shutting down the whole regulatory process, as we saw it.
  Enactment of these provisions also would have resulted in what I 
termed the Lawyers Full Employment Act, and would have had the law 
firms along K Street breaking out the champagne all over. So we 
significantly curtailed and narrowed and focused the judicial review 
requirements, which I will discuss in a little more detail a little 
later on also.
  Further under S. 1, agencies must develop a timely and effective 
means of allowing State and local input into the regulatory process. 
Given the State and local governments are responsible for implementing 
many of our Federal laws, it is not only fair they be considered 
partners in the Federal regulatory process, but it is also good public 
policy as well.
  The bill also requires Federal agencies to make a special effort in 
performing outreach to the smallest governments. Then maybe we will be 
able to minimize the occurrence of situations like the one that took 
place in the town of Sherwood that I mentioned a moment ago.
  Let me put the issue into a larger perspective. As we all know, the 
Federal, State, and local relationship is a very complicated, a very 
complex one. It is a blurry line between where one line's level of 
responsibility ends and another begins. All three levels of government 
need to work together in a constructive fashion to provide the best 
possible delivery of services to the American people in the most cost-
effective fashion. After all, as Federal, State, and local officials, 
we all serve the same constituency.
  Further, we serve the American people at a time when their confidence 
in all three levels of government may be at an all-time low. There are 
numerous explanations for this lack of confidence in government, and we 
will not go into a long discussion of those here. Vice President Gore's 
National Performance Review attributes ``an increasingly hidebound and 
paralyzed intergovernmental process'' as at least a part of the reason 
why many Americans feel that government is wasteful, inefficient, and 
ineffective. We need to restore balance to the intergovernmental 
partnership, as well as strengthen it so that government at all levels 
can operate in a more cost-effective manner.
  Both the administration and a number of my colleagues have made 
proposals to shift a number of Federal programs and responsibilities to 
State and local governments. Clearly, as this mandates debate has shown 
us, I believe we ought to at least experiment to see if State and local 
governments can carry out some of these programs in a more effective 
fashion than we have been doing at the Federal level.
  I know from my years as chairman of the Governmental Affairs 
Committee that Americans do want more efficient and less costly 
government, and I, for one, do not believe that efficiency and 
government need necessarily be an oxymoron statement. We worked on the 
Governmental Affairs Committee to bring forth better ways of dealing 
with efficiency in the Federal Government, such as the Chief Financial 
Officer Act, the Inspectors General Act, Financial Management Act, and 
so on, and a number of different things we have done in that area. So 
it is not that we have ignored the efficiencies of government, but 
certainly we want to make the Government a more efficient and better 
and less costly government.
  That certainly is a big move. Maybe one way to help accomplish that 
objective is to grant more flexibility to State and local governments 
and let them run some of these programs.
  Where I think we should proceed with some degree of caution, we need 
to remember the reason many of these programs became part of the 
Federal level was back some 50 or 60 years ago when the country was in 
dire straits and we were not able, either would not or could not, at 
the State and local level to address problems and concerns of our 
citizens that had been dealt with in the family and local communities 
up to that time. We found soup kitchens on the corners, and we had 
people because of weather changes also--we remember the movies, famous 
movies of the Okies going West with a mattress on top of the car, and 
so on. The United States had lost its way at that time.
  I grew up in that Great Depression. I learned that State and local 
governments do not have sometimes the wherewithal and resources to meet 
all human needs. That is why President Roosevelt came through with the 
New Deal. That was to address economic and social problems that 
previously were dealt with by State and local governments or by the 
local communities and families themselves more likely. And we followed 
the New Deal up with the Great Society and moved more of these programs 
up to a national level.
  Now, I am the first to say many of these programs may have gone too 
far and so we need to tailor things back somewhat. But there has been 
and will continue to be the need for Federal involvement and 
decisionmaking in many domestic policy areas. But that should not 
preclude us from maybe loosening the reins on State and local 
governments in some areas or even dropping them entirely.
  But we should be careful and look at it on a case-by-case basis, not 
with a meat ax approach, not just swinging the ax and taking whole 
programs out without considering what is going to happen to a lot of 
  Unfortunately, the House, in its race to devolve, as they call it, 
and seemingly block grant the entire Federal Government, I believe, is 
moving much too quickly in areas which should require closer scrutiny 
and greater deliberation.
  I believe that the conference report on S. 1 will help to restore the 
intergovernmental partnership and bring needed perspective and balance 
to future Federal decisionmaking.
  I think S. 1 is landmark legislation, as I said in starting out my 
remarks. I think it is landmark legislation that will help to redefine 
for the first time in 60 years the entire Federal, State and local 
relationship. And so I obviously urge my colleagues to vote for passage 
of this legislation.
  I have some remaining remarks concerning the conference report, and I 
would like to clarify some of the provisions of the proposed 
  I would first refer to section 425(a)(2)(B)(iii)(III) of the 
conference report. Subsection (III) establishes a timeframe for 
expedited procedures under which Congress will consider the agency 
statement or legislative recommendations under subsections (aa) or 
(bb). The timeframe is 60 calendar days from which the agency submits 
its statement or legislative recommendations. Under such an expedited 
process, the mandate would cease to be effective 60 calendar days after 
the agency submission unless Congress provides otherwise by law.
  The Senate Parliamentarian has provided us with his interpretation of 
the 60-day time period in a letter which has been attached as an 
appendix to the conference report. The letter states that a sine die 
adjournment ``will result in the beginning again of the day counting 
process and that the sine die adjournment of a Congress results in all 
legislative action being terminated and any process [the counting of 
the 60 days] ended so that it must begin again in a new Congress.''
  Thus, if Congress adjourns sine die prior to the end of the 60-day 
time period after the agency submission of its statement or legislative 
recommendations then the the 60-day time clock terminates and would 
start all over again, beginning with day one, when Congress convenes 
the next year. In those instances, Congress would then have 60 calendar 
days to act on the agency submission or the mandate would cease to be 
effective after the 60- 
[[Page S3882]] day period expires. Depending on when we convened in 
January, the time period would likely expire sometime during the month 
of March.
  After a discussion with the Parliamentarian, I understand that his 
interpretation on the counting of days would also apply after sine die 
adjournment of the 1st session of a Congress as well.
  This clarification by the Parliamentarian over the counting of days 
under S. 1 is critically important. During election years we usually 
adjourn sometime in early October. My concern had been that with a 
continuous 60-day clock we might be forced in those years to reconvene 
for a lame-duck session in December to vote on an agency statement or 
legislative recommendation
 or otherwise the mandate would cease to be effective. I think as a 
general rule we should avoid having to convene lameduck sessions except 
in emergencies and times of national crisis.

  So I am pleased that the Parliamentarian's ruling would avoid putting 
us in a situation of having to schedule lameduck sessions to deal with 
agency statements or legislative recommendations.
  I would like to clarify another provision in the act. Section 
202(a)(2) requires Federal agencies to prepare qualitative and 
quantitative assessments of the costs and benefits of Federal mandates 
as well as its effect on health, safety, and natural environment. I 
believe that the meaning of the word ``effect'' would include both 
qualitative and quantitative costs and benefits to health, safety and 
the environment as well as other impacts in those areas. Further, the 
statement of conferees states that included in the agency written 
statement under section 202 ``must be a qualitative, and if possible, 
quantitative assessment of the costs and benefits of the 
intergovernmental mandate.'' The word ``intergovernmental'' should be 
crossed out to make the sentence consistent with the statutory 
language. However, the sentence properly notes that a quantifiable 
assessment of the costs and benefits of a particular mandate may not be 
possible. This difficulty in preparing accurate quantitative 
assessments and estimates is noted in the statutory language for both 
section 202(a) (3) and (4). Indirect costs and benefits are 
particularly difficult to quantify and may be better addressed as part 
of an agency qualitative assessment of the Federal mandate.
  In addition to addressing indirect costs and benefits, such a 
qualitative assessment would also include an assessment of 
considerations other than economic costs and benefits but are still 
necessary and important in guiding an agency in the promulgation of a 
major rule.
  I would also like to discuss section 204, dealing with State, local, 
and tribal government input into the Federal regulatory process. Both 
the House and Senate bills required Federal agencies to develop an 
effective process to permit elected State, local, and tribal officials 
to provide timely and meaningful input into the development of agency 
regulatory proposals containing significant intergovernmental mandates. 
The language in both bills was consistent with the President's 
Executive order. The House bill, however, implicitly exempted all 
meetings and communications between Federal and
 State, local, and tribal officials under this process from the Federal 
Advisory Committee Act. The House felt that FACA was a bureaucratic 
encumbrance that impeded closer coordination between Federal, State, 
and local officials in the administration of programs with shared 
intergovernmental responsibilities. The Committee on Governmental 
Affairs has examined problems with FACA in the past and 3 years ago 
reported out unanimously legislation I wrote to reform FACA. The bill 
exempted elected State and local officials from some of its 
requirements. So I was sympathetic with the House position in this 
case. However, I believed that the House language needed to be 
tightened and narrowed so as not to give State and local officials an 
unfair advantage over others in the administrative process. So we 
developed compromise language in section 204(b) to provide an exemption 
from FACA for elected State, local, or tribal officials--or their 
designated employees with authority to act on their behalf--for 
meetings concerning the implementation or management of Federal 
programs that ``explicitly or inherently share intergovernmental 
responsibilities or administration.'' So we have been careful to limit 
the FACA exemption to instances where Federal officials and State, 
local, and tribal officials are coimplementers or managers of a 
program. We did not want to allow a FACA exemption in instances where 
State and local officials are acting as advocates, which is what the 
House bill would have likely allowed. Further, we have asked the 
administration to promulgate regulations to implement section 204 and 
to ensure that there are proper safeguards in place.

  I would note that the effective date of title I is January 1, 1996 or 
90 days earlier if CBO receives appropriations as authorized. Thus, 
title I would apply to any bill, joint resolution, amendment, motion, 
or conference report considered by the House or Senate on or after 
January 1, 1996.
  Finally, I would like to describe and explain the provisions of 
section 401, which deals with the subject of judicial review.
  The version of S. 1 that passed the Senate contained an absolute bar 
on all judicial review. However, the bill that passed the House 
authorized judicial review of regulatory agency compliance with many 
requirements in the bill.
  The conferees agreed to a compromise between the Senate and the House 
positions. Our goal was to provide for meaningful judicial review, so 
as to reassure the regulated community that agencies will prepare 
certain key statements and plans that are called for under S. 1. 
However, we also wanted to assure that agency rules and enforcement 
would not be stayed or invalidated by the judicial review, and that the 
regulatory process would not get bogged down in excessive litigation. I 
believe that section 401 achieves these goals.
  Sections 401(a) (1) and (2) provide for limited judicial review of 
agency compliance with section 202 and sections 203(a) (1) and (2). As 
I discussed a moment ago, section 202 requires preparation of 
statements to accompany significant regulatory actions, and sections 
203(a) (1) and (2) require agencies to develop small agency plans 
before establishing certain regulatory requirements.
  Subparagraph (A) of section 401(a)(2) provides that judicial review 
is available only under section 706(l) of the Administrative Procedure 
Act. Section 706(l) of the APA authorizes a court to compel agency 
action unlawfully withheld or unreasonably delayed. Subparagraph (A) 
also states that such review will only be as provided under 
subparagraph (B). Subparagraph (B) states that, if an agency fails to 
prepare the written statement under section 202 or the written plan 
under section 203(a) (1) and (2), a court may compel the agency to 
prepare such a written statement.
  Sections 401(a) (1) and (2) specify that the only remedy that a court 
may provide is to compel the agency to prepare the statement. So, for 
example, the court may not stay, enjoin, invalidate, or otherwise 
affect a rule. Nor may the court postpone the effective date of the 
rule, stay enforcement of the rule, or take any other action to 
preserve status or rights pending conclusion of the review proceeding 
or pending compliance by the agency with any court order to prepare a 
  Furthermore, in this review under sections 401(a) (1) and (2), the 
court may not review the adequacy of a written statement under section 
202 or of a written plan under sections 203(a) (1) and (2). This is 
because paragraph (2)(B) provides that a court may compel preparation 
of a written statement only if the agency actually fails to prepare the 
written statement under section 202 or actually fails to prepare the 
written plan under sections 203(a) (1) and (2).
  Sections 401(a) (1) and (2) deal with the situation where rules that 
are subject to sections 202 and 203(a) and (b) undergo judicial review 
under Federal law other than section 401(a) (1) and (2).
  Paragraph (3) states that, in any such judicial review, the failure 
of an agency to prepare a required statement or plan shall not be used 
as a basis for staying, enjoining, invalidating, or otherwise affecting 
the agency rule. Subparagraph (3) further provides that, if the agency 
does prepare a statement 
[[Page S3883]] or plan, any inadequacy of the statement or plan shall 
not be used as a basis for staying, enjoining, invalidating, or 
otherwise affecting the agency rule. Subsection (3) not only forbids a 
court to use the inadequacy or failure to prepare a statement or plan 
as the sole basis for invalidating or otherwise affecting a rule; the 
subsection also prohibits the court from using such inadequacy or 
failure as any basis, even if considered together with other 
deficiencies in the rulemaking, for invalidating or otherwise affecting 
a rule.
  Subparagraph (4) states the circumstances when the information 
generated under section 202 or section 203(a) (1) and (2) may be 
considered by a court in the course of reviewing the rule under law 
other than sections 401(a) (1) and (2). Subparagraph (4) has two 
elements. First, the information may be considered by the court only if 
it is made part of the rulemaking record for judicial review. Second, 
if the information is made part of the record for review, then the 
information may be considered by the court as part of the entire record 
for the judicial review under the other law.
  The question of whether the information is made part of the record 
for judicial review is not determined by any provision of S. 1; the 
contents of the record is governed by the law and court procedures 
under which the judicial review takes place. In judicial review of 
agency rules, the agency makes the initial decision of what documents 
to include in the rulemaking record for judicial review. Thus, the 
agency would make the initial decision of whether to include any 
information generated under sections 202 and 203(a) (1) and (2) in the 
record for judicial review. If the agency makes such information part 
of the record for judicial review, the court may then proceed to 
consider such information as part of the record for judicial review 
pursuant to the other law.
  In no event may a court review whether the information generated 
under sections 202 or 203(a) (1) or (2) is adequate to satisfy 
requirements of S. 1. Such review is clearly prohibited by subparagraph 
(3). However, in reviewing a rule under law other than sections 401(a) 
(1) and (2), if information generated under section 202 or 203(a) (1) 
or (2) is included in the record for review, the court may consider 
whether such information is adequate or inadequate to satisfy the 
requirements of such other law.
  Any information that is made part of the record subject to judicial 
review, including information generated under sections 202 and 203(a) 
(1) and (2) that is made part of the record, may be considered by the 
court, to the extent relevant under the law governing the judicial 
review, as part of the entire record in determining whether the record 
before it supports the rule under the arbitrary capricious or 
substantial evidence or other applicable standard. Pursuant to the 
appropriate Federal law, a court looks at the totality of the record in 
assessing whether a particular rulemaking proceeding lacks sufficient 
support in the record.
  Section 401(a)(5) states that a petition under paragraph (2) to 
compel the agency to prepare a written statement shall be controlled by 
provisions of law that govern review of the rule under other law. This 
applies to such matters as exhaustion of administrative remedies, the 
time for and manner of seeking review, and venue. Consequently, the 
petition under paragraph (2) may be filed only after the final rule has 
been promulgated, at which time review of the rule may be available 
under other law. The petition under subparagraph (2) may be filed only 
in a court where a petition for review of the rule itself could also be 
filed under other law. And the same requirements for exhaustion of 
administrative remedies that would apply in review of the rule shall 
also apply to the petition under paragraph (2). However, if the other 
law does not have a statute of limitations that is less than 180 days, 
then paragraph (5) limits the time for filing a petition under 
paragraph (2) to 180 days.
  Section 401(a)(6) states the effective date for the judicial review 
provided under subsection (a). The effective date is October 1, 1995, 
and subsection (a) will apply to any agency rule
 for which a general notice of proposed rulemaking is promulgated on or 
after such date. Consequently, in the case of rules for which a general 
notice of proposed rulemaking is promulgated before October 1, 1995, 
subsection (a) does not apply. For these rules that are not subject to 
subsection (a), a petition under subsection (a)(2) may not be filed, 
and information generated under section 202 and 203(a) may not be 
considered as part of the record for judicial review pursuant to 
subsection (4).

  Section 401(b)(1) broadly prohibits all judicial review except as 
provided in subsection (a). Thus, all of title I, those portions of 
title II not expressly referenced in subsection (a), and all of title 
III are completely exempt from judicial review. This section also 
prohibits judicial review of any estimate, analysis, statement, 
description or report prepared under S. 1. This list is intended to 
cover all forms of documentation or analysis generated under S. 1, so 
that no such documentation or analysis is subject to any form of 
judicial review except as provided in subsection (a). For example, not 
only is an agency's compliance with section 205 not subject to judicial 
review; but also the regulatory alternatives and the explanations 
prepared under section 205, and other records of the agency's 
activities under section 205, may not be reviewed in any judicial 
  Subsection (b)(2) further states that, except as provided in 
subsection (a), no provision of S. 1 shall be construed to create any 
right or benefit enforceable by any person.
  Finally, the provisions of S. 1 do not affect the standards of 
underlying law, under which courts will review agency rules. In other 
words, insofar as they provide the basis for judicial review of a rule, 
neither the standards of the statute that authorizes promulgation of 
the rule, nor the procedural standards for rulemaking under the 
authorizing statute or the APA, nor the standards for judicial review 
of the rule, nor agency or court interpretations, are affected by the 
provisions of S. 1.
  Likewise, to the extent that applicable law vests discretion in an 
agency to determine what information and analysis to consider in 
developing a rule, nothing in S. 1 changes the standards under which a 
court will review and determine whether the agency properly exercised 
such discretion. Thus, even where the authorizing statute is vague or 
silent about what factors the agency must or may consider in 
promulgating a rule, a court reviewing the rule may not consider the 
requirements of section 202 or of any other provisions of S. 1 in 
interpreting the requirements of the statute. This is because, except 
as provided by a petition under section 401(a)(2), section 401 
prohibits all judicial review of compliance or noncompliance with S. 1. 
If courts were allowed to interpret S. 1 as implicitly amending or 
superseding the provisions of another statute or to constrain the 
agency's discretion under another statute, and if the conference report 
had been written to allow a court to consider an agency's compliance or 
noncompliance with these amended or superseded provisions of the other 
statute, this would be the same thing as judicial review of the 
agency's compliance or noncompliance with the provisions of S. 1. But 
section 401 of the conference report clearly prohibits courts from 
doing this.
  Furthermore, even when an agency prepares any statement under section 
202, nothing in section 202 authorizes or requires consideration of the 
statement in development of the rule. Where the conference report 
intends to require that agencies consider certain factors, the language 
of the bill is drafted to say so explicitly, as in the provision of 
section 205 requiring that agencies consider a reasonable number of 
regulatory alternatives under certain circumstances. Furthermore, an 
agency may choose to prepare a statement even if consideration is 
clearly prohibited under other statute, and an agency may prepare a 
statement even if the applicable statute affords discretion to the 
agency to consider or not to consider the statement. Therefore, neither 
the provisions of S. 1 nor the fact that an agency prepares any 
statement under S. 1 affects the standards and interpretations under 
which courts will review the rule and the agency's exercise of 
discretion in developing the rule.
   [[Page S3884]] Mr. President, I would like to close by acknowledging 
some people who deserve a great deal of credit for this legislation. 
This has been tough legislation to bring through, and we had a long 
debate in the Chamber about it after it came out of committee. We 
remember some of the difficulties of getting it out of the committee, 
and I will not go into all the details of that.
  I indicated earlier in my remarks, of all the people who have brought 
this through, Senator Dirk Kempthorne certainly deserves credit as the 
spark plug for this legislation. I have been glad and honored to join 
him in it. W.H. ``Buzz'' Fawcett, who is sitting here with 
him today, deserves credit for his work on this, and Gary Smith, who is 
on the floor also today.
  On our side of the aisle, those people who deserve a tremendous 
amount of credit are Sebastion O'Kelly, who is with me here today, who 
has worked on very little but this for the last couple of months, I 
guess, or ever since we came back into session; Larry Novey, who is not 
on the floor with us today--yes, he is back in the back. Larry worked 
on this legislation also, as did our minority staff director on the 
Governmental Affairs Committee, Len Weiss, who is here with us today.
  Congressman Rob Portman over in the House, who was the real sponsor 
of this and the prime mover of it, deserves a lot of credit, along with 
his principal staff person who worked on this, John Bridgeland; 
Congressman William Clinger over there, and the person on his staff, 
Christine Simmons, who worked so hard on this; Congresswoman Cardiss 
Collins and her staff person, Tom Goldberg, who met repeatedly with the 
group; Gary Condit over there, and his staffer, Steve Jones, played a 
vital role in this.
  And back on our side again, Senator Jim Exon and Meg Duncan on his 
staff, and on our Governmental Affairs staff again Senator Carl Levin 
and Linda Gustitis, who has done such yeoman work on a number of pieces 
of legislation on our Governmental Affairs Committee staff.
  I know to people out there maybe who watch this on television, the 
names are not associated directly with the people involved. You may or 
may not have seen them in the Chamber from time to time when we were 
debating the bill, sitting here beside us, keeping some of the 
legislative matters straight as we were debating some different parts 
of this bill. But they are people who should be known because they are 
the ones who have to write things up overnight, spend two-thirds of the 
night writing things up for our approval in the morning to go to 
another meeting and try to work things out, work differences out and 
different views on legislation. And this legislation did have a lot of 
things we had to work out together. It was together that we worked 
these things out. There was a lot of togetherness, legislative 
togetherness that let us get to the point where we are today.
  So I urge my colleagues to vote for passage of this bill. I think it 
is landmark legislation, and we have so many people who have been part 
of this I probably have left some people out. I regret that. But I am 
glad we have come to this day, and I look forward to tomorrow when we 
will have a record rollcall vote. I hope it will be unanimous.
  I yield the floor. I reserve the remainder of my time.
  Mr. KEMPTHORNE. Mr. President, I certainly appreciate the remarks of 
the Senator from Ohio and the great role that he has played in bringing 
us to this point where we can have successful passage of this 
conference report.
  I should like to associate myself with his remarks about the 
different staff members who have all played a key role. I would now 
like to yield 7 minutes to the Senator from Minnesota, who again has 
been one of those Senators on this issue who every time we needed to 
have assistance was there.
  Mr. GRAMS. I thank the Senator from Idaho.
  The PRESIDING OFFICER. The Senator from Minnesota.
  Mr. GRAMS. Mr. President, I rise today in support of the unfunded 
mandates conference report.
  By forcing Congress to know the costs of any legislation it passes 
down to our States, counties, cities, and townships, by forcing 
Congress to vote--openly in the light of day--to specifically impose 
those costs if it does not come up with the dollars itself, this 
legislation is a good first step toward loosening the noose of costly 
Federal requirements.
  And it is also a good first step toward a return to States rights, 
and an end to what has too often amounted to taxation without 
representation by the Federal Government.
  In Redwood Falls, MN, former Mayor Gary Revier echoes what I have 
heard time and time again since debate began in Washington on unfunded 
  He said to me recently:

       How can cities like Redwood Falls meet their own needs when 
     our scarce dollars are continually going to meet Washington's 
       How do we tell our residents that we may need to reduce 
     services or raise local taxes because a bureaucrat 2,000 
     miles away thinks he knows best how to spend our dollars?

  I agree with Mr. Revier. In fact, I have asked him to chair my 
unfunded mandates task force, where he will play a key role in 
formulating a strategy to reduce the Federal Government's reach into 
Minnesota pockets.
  Even with the Unfunded Mandates Relief Act in place, we must be 
vigilant of the unintended costs our actions here in Congress may 
represent on the local level.
  Future legislation needs to be carefully scrutinized so that we avoid 
new and unwelcome financial pressures on the local level.
  Other regulatory relief measures we consider this year will further 
enable local governments to get back to doing local business, and away 
from having to do the Federal Government's bidding.
  We could learn a lot from Florida Gov. Lawton Chiles, who wants to 
repeal at least half of his State's nearly 29,000 regulations and 
replace them with loose guidelines, guidelines that promote 
  While trading archaic rules for common sense may not make sense to 
the Washington bureaucrats, it makes a lot of sense back home, and it 
is an approach we ought to encourage on the Federal level.
  For all the good accomplished by the Unfunded Mandates Relief Act, it 
leaves untouched most of the 200 previously enacted unfunded mandates 
passed by this institution--and passed on to local governments--over 
the last two decades.
  Implementing the requirements of the 10 costliest mandates--contained 
in bills like OSHA, the Clean Water and Clean Air Acts, and the 
Endangered Species Act--cost cities an estimated $6.5 billion in 1993.
  By the year 2000, the price tag for those mandates will rise to 
nearly $54 billion.
  It may be too late to change things with this bill, but it is not too 
late to change things with the next.
  In the House, Speaker Gingrich will begin monthly Corrections Days, 
and I urge my colleagues in the Senate to follow suit.
  We will pull out the most inefficient Federal laws and regulations 
and bring them up for a vote.
  We will begin stripping away the layers of Federal bureaucracy that, 
like bad varnish over good wood, have obscured for too long the role of 
the Government envisioned by our Founding Fathers.
  Maybe, with the help of the Unfunded Mandates Relief Act and 2 years 
of Corrections Days, we will be able to say by the end of the 104th 
Congress that we have truly made a difference to the people back home 
who sent us here to change Washington.
  I reiterate, this change begins with passage of the Unfunded Mandates 
Relief Act.
  With that, I yield the remainder of my time.
  The PRESIDING OFFICER. The Senator from Idaho.
  Mr. KEMPTHORNE. Mr. President, I note Senator Hutchison was here a 
short time ago. She had hoped to speak on this issue but unfortunately 
a previous commitment had caused her to leave the floor. I wish she 
could have been able to remain because during the 11 days of the debate 
that we had on S. 1, there were different occasions when it was 
necessary to seek someone with her background in State government to 
come be an advocate and spokesperson for this bill. Whenever we called, 
[[Page S3885]] was there. I want to acknowledge her role in this as 
  With that, Mr. President, I know there are additional speakers who 
are on their way to the floor.
  I suggest the absence of a quorum.
  The PRESIDING OFFICER. Does the Senator suggest the time be divided 
equally on both sides, under the quorum call?
  Mr. KEMPTHORNE. Mr. President, that will be fine.
  The PRESIDING OFFICER. The clerk will call the roll.
  The bill clerk proceeded to call the roll.
  Mr. INHOFE. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Who yields time?
  Mr. KEMPTHORNE. Mr. President, I yield 5 minutes to the Senator from 
  The PRESIDING OFFICER. The Senator from Oklahoma.
  Mr. INHOFE. I thank the distinguished Senator from Idaho for 
  Mr. President, I have been most interested in what I think is our 
first major success in both Chambers. And certainly it is due to the 
perseverance of the Senator from Idaho that we are where we are today. 
I watched with interest what is happening in the House and, of course, 
what is happening over here. I think it is so significant because this 
symbolizes what I think is one of the products of the revolution that 
took place on November 8.
  I have often joked around with many Members of both bodies in 
Washington. I said, ``If you want to know what a real tough job it is 
to become a mayor in a major city, there is no hiding place there. If 
they do not like you, they trash you and they throw it in your front 
  Of all the problems--and even though there are people serving in this 
body, distinguished Senators, who have had distinguished careers, 
including being mayor of major cities such as the Senator from 
California, Mrs. Feinstein, and many of us may disagree philosophically 
on certain subjects, but if you were to ask any city official, any 
mayor, any city commissioner, city council member in America what the 
most serious problem is, they will not say, as you might expect, the 
crime problem or the welfare problem or other problems like that. They 
would say it is unfunded mandates. I had the honor of serving as mayor 
for three terms in the city of Tulsa, OK, with a half-million people.
  There are so many aspects of unfunded mandates that people do not 
talk about because sometimes it is politically sensitive to talk about 
it, such as the Davis-Bacon Act and how that affects what we do with 
capital improvements in many of our large cities.
  I can remember when I became mayor of the city of Tulsa, even though 
I was conservative it was very uncomfortable to do this. I had to pass 
a 1-cent sales tax increase for capital improvement because our city 
had been neglected in its infrastructure. Unfortunately, it is a 
political reality. Until you can visibly see the problems, you do not 
really do anything about it. So we passed it.
  We calculated afterward that, if we had not had to comply with the 
Davis-Bacon Act, the taxpayers would have benefited so much more than 
they did. Without the Davis-Bacon Act, we could have produced 17 
percent more in capital improvements for the citizens of Tulsa. Keep in 
mind this is all totally funded within the city with a 1-cent sales tax 
increase--6 more miles of roads and streets within one city, Tulsa, OK; 
34 more miles of water and sewer lines. And we could have hired--this 
is simply the labor issue that you hear so much about--we could have 
hired 500 more people during that timeframe. At that time our 
unemployment was high. It was something that we needed. So it was one 
of those deals where no one would have been punished by our 
successfully not having to serve under the mandates of the Davis-Bacon 
  A lot of us in Oklahoma put the pencil to these things so that we 
would know how many dollars it saved. The motor-voter law that came in 
is going to cost about $1 million a year. We are still working with 
that right now. That was something that came in that sounded very good 
when it surfaced. A lot of the authorities were certainly well meaning. 
But it was a very expensive thing for the people of Oklahoma. We went 
and looked at some of the things that happened in the city. Certainly 
we all know or are sensitive today to the League of Cities which is 
having their annual meeting here in Washington.
  In one city, Oklahoma City, the compliance with storm water 
management and the Clean Water Act, in Oklahoma City alone it is 
estimated to be $2.7 million. The transportation regulations, which is 
the metric conversion, some of their anticipated fees are in excess of 
$2 million over the next 5 years. Land use regulations--that is the 
recycling and landfill requirements that have come--$2.5 million; the 
Clean Water Act, Safe Drinking Water Act is somewhere in the millions. 
We cannot even put the pencil to that.
  In my city of Tulsa, OK, the other large city in Oklahoma, the Clean 
Water Act compliance was $10 million. The Safe Drinking Water Act was 
$16 million. The solid waste regulations, $700,000. And the lead-based 
paint, because it is a unique industry which we have there, it will 
cost in excess of $1 million.
 But when you look at the smaller communities like Broken Arrow, OK, 
the Clean Water Act, the storm water regulations were $100,000; the 
safe drinking water regulations were $40,000. This is a small community 
that has a very difficult time making ends meet. Yet, they look at 
these and they wonder why is it that we in Washington somehow have this 
infinite wisdom that we know what is better for them and we are willing 
to mandate things for them to do. Yet, we are not going to fund it.

  I think if we face the reality and the truth, Mr. President, I 
suggest that it is because people in Washington, after being here for a 
while, cannot resist the insatiable appetite to spend money we do not 
have. One tricky way of doing that is to take credit for something 
politically at home in terms of the environment or something that we 
are needing to do that generally the people want and turn around and 
cause the people at home to pay for it.
  I think we should look at this in another way, also. That is, what is 
going to happen with the frustration around the country if we do not do 
this? I was heartened the other day to see what is happening in Catron 
County, NM. In the frustration of dealing with the U.S. Forest Service, 
they enacted the U.S. Constitution as a county ordinance and put the 
Federal officials on notice to show up at the county supervisors 
meeting to get permission to impose future mandates.
  I think we are looking at something here that either we do, or it is 
going to be done for us. I have never been prouder of an organization 
that is able to come in on both the House and Senate side and recognize 
that this is not a Republican program, this is not a Democratic 
program, this is not a conservative or liberal program; this is 
something that everyone is for if they are really for getting the 
maximum out of the tax dollars that are paid.
  So, again, let me throw all the accolades I can on the distinguished 
Senator from Idaho, who has been so effective in getting this through. 
Thank you on behalf of all America.
  I yield the floor.
  Mr. KEMPTHORNE. Mr. President, I want to thank the Senator from 
Oklahoma. Not only is he a tremendous addition to the U.S. Senate, but 
his experience as a former mayor--I really think there are few training 
grounds that can better equip you for the issues we deal with than to 
be a mayor who deals with the pragmatic issues of government. He is a 
welcome addition here.
  I yield 7 minutes to the chairman of the Budget Committee, the 
Senator from New Mexico, Senator Domenici.
  Mr. DOMENICI. Mr. President, I know that the occupant of the chair 
would like the Senate to finish its business at the earliest possible 
moment. While he has not told me that, it seems to me that is the 
attitude he exhibited when I told him I was going to speak. I promise 
you that it will be reasonably interesting and very, very short.
  First, let me say that this bill could not be passed by the U.S. 
Senate, this conference, at a better time, because in the confines of 
this city over the last 72 hours, councilmen and mayors and 
[[Page S3886]] councilwomen from all across America were here as part 
of the National League of Cities' conference. I used to belong to that 
organization many years ago when I was an ex officio mayor of my home 
city. And our distinguished Senator, to whom we extend accolades here 
today, Senator Kempthorne, also served as mayor, but much later than I. 
I knew about the government way back then, and he knew about it even 
more vividly.
  But I might say to the Senate that there is no question that the 
exhilaration in the language and words of thanks and profuse gratitude 
from those who came from far and wide across America as mayors and 
council people, saying this was the first step in some kind of 
revitalization of federalism in a prudent and realistic manner, seem to 
me to be right on the mark. We were on the mark when we passed it.
  So this bill begins a redefinition of the relationship between the 
Federal Government, States, and local governments and even our Indian 
tribes. In addition, due to the provisions of title II of this bill, it 
also begins a little bit to move the relationship of the Federal 
Government's regulatory processes, vis-a-vis the private sector, in a 
direction of somewhat more accountability for the bureaucracy's actions 
that bind our American people and business people. We are not there yet 
on private sector mandates. This is the very first step.
  In the past, we have piled mandates on the States and the American 
people with very little idea of their economic impact. It seems to me 
these mandates were imposed with too much confidence that we could 
leave very open-ended, generalized kinds of authority to the 
regulators, expecting them to establish commonsense regulations. 
Instead, we have found the exact opposite. In many instances, you have 
to stretch your mind in terms of trying to figure out how they could 
arrive at certain regulations from the laws we have passed.
  So, at the very best, we did not fully understand the cost of our 
laws, the cost and implications of our regulations on State and local 
governments and tribal governments, or the private sector. At the 
worst, we had no idea how much these laws and regulations cost the 
American people. One estimate places the aggregate cost of existing 
mandates from hundreds of laws and thousands of regulations at $580 
billion annually.
  Somebody pays that and somewhere it finds itself in either the cost 
of living of our people, or the cost of buying goods and services from 
our companies, because this huge cost does not just disappear into the 
ether. It is there every day, in our front rooms, kitchens, on our 
grocery shelves, the furniture and gasoline we buy, and all of the 
other things that we have seen fit to regulate without any real 
evidence of the risk and the cost and how it affects people.
  In my own State--I repeat to the Senate--local officials, whether it 
be the secretary of state or labor implementing motor vehicle 
registrations, or the mayor of the little town of Las Vegas, NM, 
attempting to meet the needs of his small city, I have heard their 
appeals and they clearly are tired of the Federal Government telling 
them precisely how to do things by regulation when they believe they 
could do just as well in different ways at less cost to their people.
  Small business in New Mexico first points to Federal regulations when 
asked what is slowing down employment and economic growth and causing 
them to expand less than they think they could. Their answer, I repeat, 
is most frequently: Regulations that burden us unduly, that cost more 
than they are worth. They are even raising this today more frequently 
than they are talking about higher taxes and how taxes burden them.
  That is not to say that taxes are not a burden to small business and 
that they would not like to see some relief. But I am giving you my 
best version of what I have heard for the last 14 months, because I did 
call small business together in New Mexico. We had an advocacy group 
and we hold it together, and we have had about 800 small businesses go 
to five cities and just lay before me what is wrong with the Federal 
Government. It comes up over and over again that they are being 
regulated beyond belief, at costs that are significant, with 
achievements and goals that are irrelevant or very misleading in terms 
of their worth.
  So I am hopeful that this bill will change the culture of the Federal 
Government by modifying the process by which we impose mandates on our 
people. This bill requires Congress and Federal regulatory agencies to 
consider the impact of mandates before they are legislated and 
  I congratulate Senator Kempthorne on this bill. I congratulate his 
staff and my staff, some of them from the Budget Committee. He is just 
a freshman Senator, but actually we have all found that he is a 
powerful one and a good one. He introduced the bill, and our leader, 
Senator Dole, said, ``Manage it, since you feel so strongly about it.''
  I remember him asking me, ``Do you think I can do it? What is 
managing a bill all about?''
  And I said, ``Nobody can tell you until you have done it.''
  I asked him the other day, and he had a mixed reaction to it all. He 
is not so leery about managing another one, but he was not totally 
sanguine about what he had to go through either.
  We do have to go through some contortions here on the floor to 
accommodate fellow Senators. He, obviously, had to do that. And for 
some who wanted to delay this process, he had to do that.
  But over the past 2 years I helped where I could and I believe we 
strengthened the bill in many respects. First, through Senator Exon's 
and my efforts, the point of order in this bill has been broadened to 
apply to all legislation and the bill's new legislative mandate control 
procedures have been folded into the Budget Act, where we have 
established precedents to show us how a point of order will work and 
how it will not work.
  Second, Senators Nickles, Dorgan and myself have worked to make sure 
that the new procedures in this bill apply to the private sector.
  This bill may be just a start in that direction, but let me suggest 
for those who are overburdened in the private sector, this bill will 
send a signal that we have not forgotten about them as we talk about 
mandates. Because many small businesses in America, because of the type 
of regulations being imposed and the attitude of those who impose it, 
believe the Federal Government is their adversary, their enemy, not 
their friend, not working in partnership and cooperation to see that 
regulations and the mandates of our laws get carried out. This bill is 
going to make one first step. Agencies are going to have to assess the 
impact on small business, and it holds agencies accountable for their 
actions. There is one judicial review process that will be available to 
  I am very hopeful that, as we move through regulatory reform, we will 
find some more precise and better ways to address the huge, huge almost 
malaise that is out there from the regulations and that we will start 
to make sense of it. And if, in a couple of years, the small business 
community is saying, ``Our Government cares about us, they work with 
us, the regulators work with us instead of starting as enemies and 
wanting to penalize us, to fine us,'' we will have made a very giant 
step in the right direction.
  I thank Senator Kempthorne for yielding me time and I yield the 
  Mr. KEMPTHORNE addressed the Chair.
  The PRESIDING OFFICER. The Senator from Idaho.
  Mr. KEMPTHORNE. Mr. President, I wish to thank Senator Domenici for 
his comments. Again, we have a former mayor who has just spoken, and 
who, from experience, knows what these unfunded mandates are all about, 
but more importantly helped do something about it. During what was the 
Christmas recess, when, traditionally, there is some time off, we did 
not take the time off. We worked diligently so that we could be ready 
with S. 1, so that it could be ready the first day.
  So I appreciate Senator Domenici's help on that. And to acknowledge 
his staff, Bill Hoagland, Austin Smythe, and Kay Davies, who worked 
diligently with us through this process.
  Mr. President, I also think it is worth noting--and this is 
[[Page S3887]] that of the conferees that were appointed--5 in the 
Senate, 8 in the House; a total of 13--we stated going into this, 
Senator Glenn has affirmed this point repeatedly, that this was a 
bipartisan effort.
  I think it is significant that three Democrat Members of the House 
were appointed to the conference and not all three had voted for this, 
which, at that time, was H.R. 5 in the Senate. Not all voted for it 
but, significantly, all Members, all 13 conferees, signed this 
conference report. Cardiss Collins, Edolphus Towns, and Joe Moakley, we 
want to thank them for their efforts throughout this process. Again, 
you have a conference report now that has been unanimously signed by 
all conferees.
  Mr. ROTH. Mr. President, as Chairman of the Governmental Affairs 
Committee, I am pleased to join with the Senator from Idaho in bringing 
to the floor this conference agreement on the unfunded mandates 
legislation. In chairing the conference on S. 1, Senator Kempthorne did 
an excellent job of preserving the strong bipartisan support for this 
important reform that was the hallmark of its passage in both Houses.
  This bill, as it now appears before us, is a careful balance of the 
demands for strong, effective reform, with the necessity for reasonable 
procedures and practical requirements. For example, we have provided 
for judicial review of agency compliance with requirements for certain 
types of analysis of regulatory impacts but without allowing such 
review to become a device that grinds the regulatory process to a halt. 
We require agencies to seek the least costly or least burdensome option 
when developing regulations but we only require that they do so for a 
reasonable number of alternatives.
  We have also struck fair compromises where the two versions of the 
legislation imposed differing requirements. For example, we now require 
a Congressional Budget Office analysis of any mandate on the private 
sector that exceeds $100, million per year in costs while the original 
Senate bill had set the threshold at $200, million and the House 
threshold had been $50, million. We have also tailored the point of 
order provisions to the unique procedural needs of each of the two 
  And while the legislation aims primarily at future Federal mandates 
in its point of order and regulatory procedures provisions, it also 
acknowledges that existing mandates may need to be rethought. It does 
this by charging the Advisory Commission on Intergovernmental Relations 
with studying and reporting to us on effects of the current burdens 
imposed by such mandates. It asks ACIR to recommend how best to end 
mandates that are obsolete or duplicative. It also asks for 
recommendations on how we might grant State and local governments more 
flexibility in complying with those mandates that ought to be retained.
  In doing all of this, the conferees have developed a final version of 
this much-needed reform that I can strongly commend to my colleagues. 
This is due in large measure, as I have already mentioned, to the 
diligent work of Senator Kempthorne, who has long championed this 
reform. He and his staff are to be commended for bringing us this far.
  I also want to acknowledge the active role of Senator Glenn in 
shaping this final product. Senator Glenn and his staff have worked 
very hard over the past year and a half, to ensure that this 
legislation was able to have solid bipartisan support.
  I am pleased to have worked with my two colleagues, and with the 
other conferees, to get us to this point. I know that my own staff has 
spent many long hours over the past several months to help in this 
effort, working closely with the staffs of the other conferees.
  The bill now before us represents a landmark reform in the 
relationship between the Federal Government, and State and local 
governments. I urge all Senators to give it their strong support.
  Mr. KEMPTHORNE. Mr. President, I thank Senator Roth again, as I 
mentioned earlier, for his leadership and for the assistance of his 
staff, Frank Polk and John Mercer.
treatment of disability laws under the unfunded mandates reform act of 

  Mr. HARKIN. Mr. President, I would like to enter into a colloquy with 
Senators Exon and Glenn, floor managers of the Unfunded Mandates Reform 
Act of 1995, regarding the impact of this legislation on the Americans 
With Disabilities Act [ADA], title V of the Rehabilitation Act of 1973, 
and the Individuals With Disabilities Education Act [IDEA].
  Mr. EXON. I would be pleased to enter into a colloquy with my 
colleague, Mr. Harkin, who served as the chairman of the Subcommittee 
on Disability Policy of the Committee on Labor and Human Resources from 
1987-95 and is currently ranking member of the subcommittee.
  Mr. GLENN. I too would be pleased to enter into a colloquy with Mr. 
Harkin, who was also the chief sponsor of the ADA and the most recent 
bills reauthorizing the Rehabilitation Act of 1973 and the IDEA.
  Mr. HARKIN. The ADA and sections 503 and 504 of the Rehabilitation 
Act of 1973 are civil rights statutes protecting individuals from 
discrimination on the basis of disability. It is my understanding that 
these statutes are explicitly excluded from coverage under the Unfunded 
Mandates Reform Act of 1995. Is my understanding correct?
  Mr. GLENN. The Senator is correct. The ADA and sections 503 and 504 
of the Rehabilitation Act of 1973 are explicitly excluded from coverage 
under the Unfunded Mandates Reform Act of 1995. Specifically, the bill 
provides that the provisions of this Act shall not apply to any 
provision in a bill or joint resolution before Congress and any 
provision in any proposed or final Federal regulation that establishes 
or enforces any statutory rights that prohibit discrimination on the 
basis of * * * handicapped or disability status.
  Mr. HARKIN. I thank the Senator. It is also my understanding that the 
Unfunded Mandates Reform Act of 1995 includes a definition of the term 
Federal intergovernmental mandate and this definition explicitly 
excludes discretionary grant programs--except certain entitlement 
programs--that is, any provision in a bill or joint resolution that 
includes a condition of Federal assistance or a duty arising from 
participation in a voluntary Federal program.
  IDEA is a voluntary discretionary Federal program. Therefore, it is 
my understanding that IDEA is not subject to the provisions of the 
Unfunded Mandates Reform Act of 1995 because it is not considered a 
Federal intergovernmental mandate. Is my understanding correct?
  Mr. EXON. The Senator is correct. Because IDEA is a voluntary 
discretionary Federal program, it is not considered a Federal 
intergovernmental mandate. Therefore, none of the provisions applicable 
to Federal intergovernmental mandates included in the legislation apply 
to IDEA.
  Mr. HARKIN. As the Senator knows, part B of IDEA--also known as 
Public Law 94-142--was enacted in 1975. Both the House and Senate 
reports that accompany the original legislation clearly attribute the 
impetus for the act to two Federal court decisions rendered in 1971 and 
1972. As the Senate report states, passage of the act followed a series 
of landmark court cases establishing in law the right to education of 
all handicapped children. The U.S. Supreme Court in Smith v. Robinson, 
468 U.S. 992, recognized that part B of IDEA is a comprehensive scheme 
set up by Congress to aid the States in complying with their 
constitutional obligations to provide public education for handicapped 
children. The Court cited another portion of the Senate report, which 
stated, ``It is the intent of the Committee to establish and protect 
the right to education for all handicapped children and to provide 
assistance to the states in carrying out their responsibilities under 
State law and the Constitution of the United States to provide equal 
protection under the law.'' The Supreme Court then explained that ``The 
[IDEA] was an attempt to relieve the fiscal burden placed on States and 
localities by their responsibility to provide education of all 
handicapped children.''
  It is my understanding that the provisions of the Unfunded Mandates 
Reform Act of 1995 do not apply to any provision in a bill or joint 
resolution before Congress that enforces constitutional rights of 
individuals. In light of the statements of congressional intent and the 
conclusions reached by the U.S. Supreme Court, would you agree 
[[Page S3888]] with me that IDEA enforces constitutional rights of 
individuals and as such is excluded from coverage under the Unfunded 
Mandates Reform Act of 1995?
  Mr. EXON. I agree with the Senator's conclusion in light of the 
statements of congressional intent he cited to and the conclusions 
reached by the U.S. Supreme Court.
  Mr. HARKIN. It is also my understanding that the provisions of the 
Unfunded Mandates Reform Act of 1995 do not apply to IDEA because, like 
the ADA and section 504 of the Rehabilitation Act of 1973, IDEA is a 
civil rights statute that establishes or enforces statutory rights that 
prohibit discrimination on the basis of handicapped or disability 
  Mr. EXON. I agree with that conclusion.
  Mr. HARKIN. I thank the Senator for entering into this colloquy with 
me. I ask unanimous consent that a memorandum prepared by the American 
Law Division of the Congressional Research Service regarding the 
applicability of the Unfunded Mandates Reform Act of 1995 to the ADA, 
IDEA, and the Rehabilitation Act of 1973 be printed in the Record.
  Mr. GLENN. I thank the Senator for raising these important issues.
  Mr. EXON. I also wish to thank him for raising these issues.
  There being no objection, the memorandum was ordered to be printed in 
the Record, as follows:

                               Congressional Research Service,

                                 Washington, DC, January 23, 1995.
     To: Senator Harkin, Attention: Bob Silverstein.
     From: American Law Division.
     Subject: Unfunded Federal Mandates Bill and the Americans 
       with Disabilities Act and the Individuals with Disabilities 
       Education Act.

       This memorandum is furnished in response to your request 
     for an analysis of the language of S. 1 and H.R. 5, 104th 
     Cong., 1st Sess., to determine if the Americans with 
     Disabilities Act (ADA), 42 U.S.C. Sec. Sec. 12101 et seq., 
     and the Individuals with Disabilities Education Act (IDEA), 
     20 U.S.C. Sec. Sec. 1400 et seq., would be covered under 
     these bills. It should be emphasized that these bills are 
     currently undergoing extensive debate and amendment. This 
     memorandum is based on the language contained in the Senate 
     bill as reported out of the Senate Governmental Affairs 
     Committee on January 11, 1995 and the Senate Budget Committee 
     on January 12, 1995, and on the language contained in the 
     House bill as reported out of the House Committee on Rules on 
     January 13, 1995.
       These bills are both referred to as the ``Unfunded Mandate 
     Reform Act of 1995.'' Basically, both bills, with some 
     variance in details, would establish new congressional 
     procedures for identifying and controlling certain existing 
     as well as new unfunded federal mandates. The bills set forth 
     new congressional procedures that would prohibit the House 
     and Senate from considering legislation that creates new 
     mandates or changes existing mandates from direct costs over 
     a statutory threshold unless it also includes a source of 
     financing or a guarantee that any such mandates will be 
     repealed if the financing is not provided. Other provisions 
     in the bills relate to the establishment of a Commission on 
     Unfunded Federal Mandates that is required to review existing 
     federal mandates to state, local, and tribal governments and 
     to the private sector, and to make recommendations regarding 
     possible changes in these mandates. There are also provisions 
     requiring federal agencies to assess the effect of federal 
     regulations on state, local and tribal governments and on the 
     private sector and to make public such assessments for 
     federal mandates costing more than $100 million to implement.
       Both bills contain a section entitled ``Limitation on 
     Application.''\1\ Section 4 of S. 1 provides that ``this part 
     shall not apply to any provision in a Federal statute or a 
     proposed or final Federal regulation that--(1) enforces 
     constitutional rights of individuals; (2) establishes or 
     enforces any statutory rights that prohibit discrimination on 
     the basis of race, religion, gender, national origin, 
     handicapped or disability status, (3) requires compliance 
     with accounting and auditing procedures with respect to 
     grants or other money or property provided by the Federal 
     Government; (4) provides for emergency assistance or relief 
     at the request of any State, local government, or tribal 
     government or any official of such a government; (5) is 
     necessary for the national security or the ratification or 
     implementation of international treaty obligations; or (6) 
     the President designates as emergency legislative and that 
     the Congress so designates in statute.'' It would appear that 
     both the ADA and IDEA would be exempted from the requirements 
     of the Unfunded Mandate Act based upon these exceptions, and 
     IDEA would also come under the exception to the definition of 
     Federal Intergovernmental Mandate for conditions of financial 
     Footnotes at the end of the memorandum.
       The ADA would apparently be covered by the second 
     exception, and possibly the first. The ADA provides, in part, 
     that its purpose is ``to provide a clear and comprehensive 
     national mandate for the elimination of discrimination 
     against individuals with disabilities.'' \2\ The legislative 
     history of the statute is replete with discussions of 
     discriminatory actions and comparisons with civil rights 
     protections given to individuals on the basis of race.\3\ An 
     examination of statutes that are commonly referred to as 
     civil rights statutes, for example, title VI of the Civil 
     Rights Act of 1964, 42 U.S.C. Sec. 2000d, indicates that the 
     broadest common denominator is that these statutes prohibit 
     discrimination against a particular class or particular 
     classes of individuals. Using this criteria, it would appear 
     that the ADA would be considered to be a civil rights statute 
     as the term is used in the second exception to the unfunded 
     mandates legislation. It is also possible that the first 
     exception, regarding statutes that enforce constitutional 
     rights, might also be applicable to the ADA. The ADA states, 
     in part, that its purpose is ``to invoke the sweep of 
     congressional authority, including the power to enforce the 
     Fourteenth Amendment and to regulate commerce, in order to 
     address the major areas of discrimination faced day-to-day by 
     people with disabilities.''\4\ It could be argued that this 
     language, coupled with findings concerning the constitutional 
     rights of individuals with disabilities such as were made in 
     City of Cleburne v. Cleburne Living Center, 473 U.S. 432 
     (1985), would suffice to bring the ADA under the first 
     exception in the unfunded mandates legislation.
       IDEA would apparently be covered by the exception to the 
     definition of federal intergovernmental mandate contained in 
     Section 3 of S. 1 and Section 301 of H.R. 5 as well as by the 
     first two exceptions regarding the enforcement of 
     constitutional rights and the exception for civil rights 
     statutes contained in the ``Limitation on Application'' 
     provisions discussed above. The term ``Federal 
     Intergovernmental Mandate'' is defined in both the Senate and 
     House bills as meaning ``any provision in legislation, 
     statute, or regulation that--(i) would impose an enforceable 
     duty upon States, local governments, or tribal governments, 
     except--(I) a condition of Federal assistance; or (II) a duty 
     arising from participation in a voluntary Federal program. . 
     .''\5\ IDEA provides funds to the states so that they may 
     provide a free appropriate public education to all children 
     with disabilities. As a condition for the receipt of these 
     funds, the act contains detailed requirements for the 
     provision of an education. Clearly, IDEA is a grants statute 
     which imposes certain conditions upon the receipt of federal 
     funds. As such it would be covered by the exception quoted 
       IDEA may also be exempted from coverage by virtue of the 
     two exceptions regarding constitutional rights and civil 
     rights statutes.\6\ IDEA was originally enacted in 1975 in 
     response to two judicial decisions\7\ which found certain 
     constitutional requirements for an education for children 
     with disabilities. In addition, the Supreme Court in Smith v. 
     Robinson, 468 U.S. 992 (1984), stated that ``The EHA (now 
     called IDEA) is a comprehensive scheme set up by Congress to 
     aid the States in complying with their constitutional 
     obligations to provide public education for handicapped 
     children.'' At 1009. It could be argued that IDEA is, then, a 
     statute enacted to help enforce constitutional rights. 
     Similarly, IDEA specifically states that part of its purpose 
     is to assure that the rights of children with disabilities 
     and their parents or guardians are protected.\8\ These rights 
     are further defined in the statute. An examination of the 
     legislative history of the act indicates that it was in 
     response to the exclusion of children with disabilities from 
     a public school education.\9\ Since exclusion would appear to 
     fall within the parameters of the term discrimination, it 
     would appear that IDEA could also be classified as a civil 
     rights statute.
       We hope this information is useful to you. If we can be of 
     further assistance, please call us.
     Kathy Swendiman,
     Nancy Lee Jones,
                                            Legislative Attorneys.


     \1\Section 4 of H.R. 5 sets forth a ``Limitation on 
     Application'' section which is identical to that contained in 
     S. 1 except for the addition, in committee, of a new (7) 
     which reads ``pertains to Social Security''.
     \2\42 U.S.C. Sec. 12101(b)(1).
     \3\See generally, S. Rep. No. 116, 101st Cong., 1st Sess. 
     \4\42 U.S.C. Sec. 12101(b)(4).
     \5\Section 3 of S. 1 and Section 301 of H.R. 5.
     \6\Section 4 (1) and (2) of S. 1 and H.R. 5 read as follows: 
     ``This Act shall not apply to any provision in a Federal 
     statute or a proposed or final Federal regulation, that--(1) 
     enforces constitutional rights of individuals; (2) 
     establishes or enforces any statutory rights that prohibit 
     discrimination on the basis of race, religion, gender, 
     national origin, or handicapped or disability status. . .''
     \7\PARC v. State of Pennsylvania, 343 F. Supp. 279 (E.D. Pa. 
     1972), and Mills v. Board of Education of the District of 
     Columbia, 348 F. Supp. 866 (D.D.C. 1972).
     \8\20 U.S.C. Sec. 1400(c).
     \9\H. Rep. No. 332, 94th Cong., 1st Sess. 11 (1975); S. Rep. 
     No. 168, 94th Cong., 1st Sess., reprinted in 1975 U.S. Code 
     Cong. & Ad. News 1425, 1432.
  Mr. KEMPTHORNE. Mr. President, I know that the majority leader wishes 
to make comments on this issue. Until his arrival, I suggest the 
absence of a quorum.
   [[Page S3889]] The PRESIDING OFFICER. Equally divided?
  Mr. KEMPTHORNE. Equally divided.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. DORGAN. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. DORGAN. Mr. President, I ask unanimous consent to speak as in 
morning business for 5 minutes.
  The PRESIDING OFFICER. Without objection, it is so ordered.