The classroom, the polling place and now the DMV. Uncle Sam keeps showing up in the most peculiar places.
These unwelcome intrusions onto state turf come under the banner of federalism, the notion that a national policy will reap results across all states.
The states, after all, are responsible for enforcing education standards, overseeing fair elections and issuing driver's licenses. And the feds show little interest in assuming those responsibilities. Instead, they drop a trail of federal dollars, knowing the states have little choice but to follow. It's a time-tested tactic, one that has moved states to reduce highway speed limits and toughen DUI standards rather than risk losing federal transportation funding. But it's somewhat surprising to find that the erosion of states' power has accelerated under this Republican regime.
"In a lot of ways they're just continuing part of the trend we've seen toward increased federal mandating," argues Timothy Conlan. An associate professor of government and politics at George Mason University in Fairfax, Va., Conlan studies the relationship between the federal government and the states. His 1998 book, From New Federalism to Devolution: Twenty-Five Years of Intergovernmental Reform, traces a strategy embraced by the nation's conservative leaders. Such directives signal an inherent impatience with waiting for sound policies to filter up from the states.
With No Child Left Behind, the Help America Vote Act of 2002 and this year's Real ID Act, President George W. Bush has endorsed federal policies that place great responsibility, and often an equally burdensome financial strain, on the states.
"In the past, this is not what we would have expected from, at least the ideology of, Republicans," Conlan says. "It's quite obvious that we've seen, at least since the [President Ronald] Reagan Administration, when the policy goals of Republicans, just as with Democrats, conflict with their abstract beliefs about local control, the temptation is to go ahead and pursue your policy goal."
No Child Left Behind ranks as the best-known and perhaps most overarching Bush Administration mandate. Conceived by the president and adopted by Congress, the 2002 law imposed strict student achievement standards on school districts that accept federal money.
The law asks a lot of state administrators, considering the feds foot less than a 10th of Illinois' annual education tab. The burden, many argue, far exceeds the federal government's financial commitment. In fact, earlier this year, educators from Illinois and nine other states launched a lawsuit against No Child Left Behind. They argue that, nationwide, the federal government has fallen $27 billion short of supporting the rules and regulations it has imposed, forcing schools to shortchange other programs.
At best, the intent of No Child Left Behind — improving student achievement — garners tepid applause. At worst, the law is lambasted for the way it has been implemented.
"No Child Left Behind does not symbolize good bureaucratic policy nor educational policy, and I think it will leave a legacy of how not to do things," says state Rep. John Fritchey, a Chicago Democrat who chairs the House Judiciary Committee on Civil Law. "While the stated purpose of NCLB was laudable, I think you would be hard-pressed to find an educator, forget about legislator, but to find an educator who would say that this is accomplishing something good for their students."
"The states, within certain parameters, set their voting requirements, their registration requirements, and then they fund those. This is the first time the federal government made federal funds available and, in return, the states had to comply with certain requirements. It's unprecedented."
The law separates student test scores into subgroups by race, income and English proficiency. Districts must meet annual achievement goals for each subgroup or risk diverting already scarce funds to federally mandated tutoring programs, or toward busing students to better performing schools. In Illinois, the testing subgroups can be as small as 40 students per school.
In some ways, the strategy has paid off, says Ginger Reynolds, interim assistant superintendent for teaching and learning at the State Board of Education.
"It's helped the state and districts and schools really focus in on every kid," she says. While more diplomatic than Fritchey, Reynolds isn't ready to declare the policy a success. "I guess it's probably too early to tell if it has, in a substantial way, increased the quality of education."
A mountain of paperwork often supplants the independence that these federal directives strip away. In the case of No Child Left Behind, Reynolds says the state must act as traffic controller, fielding questions from the locals while directing an endless flow of documents.
A similar situation arose when Congress decided to push polling places into the 21st century. The Help America Vote Act was aimed at avoiding the 2000 electoral debacle that held the presidential race hostage for two months. Congress and the president allocated federal funds to eradicate punch cards, the ballot form that crippled vote counting in Florida.
But by last year's presidential election, most of Illinois wasn't ready to relinquish punch cards. State officials had to get a federal waiver to stick with technology much of Illinois had relied on for more than two decades. Distributing federal election dollars was a new endeavor for the state, and locals still needed time to shop for new voting machines, says Dan White, executive director of the Illinois State Board of Elections.
"It's been a large administrative undertaking, not only for the state but for the locals as well," he says. "Generally, these are states' rights types of things. The states, within certain parameters, set their voting requirements, their registration requirements, and then they fund those. This is the first time the federal government made federal funds available and, in return, the states had to comply with certain requirements.
It's unprecedented."
It's also expensive. Though Congress sent the states $3 billion to upgrade voting equipment, that number fell $800 million below the original promise. That meant a shortfall of about $28 million for Illinois, White says. Even if it had delivered the entire $3.8 billion offering, Congress wouldn't have come close to financing the complete annihilation of the butterfly ballot. Cities and counties were expected to chip in to cover the full cost of replacing punch cards with touch-screen devices, which resemble ATMs, or optical-scan machines, which read ovals that voters fill in as they would a standardized test.
Every Illinois polling place will have one touch-screen device up and running for the statewide primary in March, White says. They must, in order to meet federal rules for accommodating voters with disabilities.
Still, with the exception of local election officials, the Help America Vote Act has escaped stinging criticism. The highly polarizing 2000 election put the law on strong footing. And for the populace, voting is a rather sporadic concern. Not so for education, and not so for other federal mandates that are in the works.
"Right now, the one that all state legislators across the country are talking about is No Child Left Behind. But when the Real ID [Act] begins to really bite and change the way the states issue their driver's licenses, I think that one's going to rocket to the top," says state Sen. Steve Rauschenberger. The Elgin Republican, a gubernatorial candidate, serves as president of the National Conference of State Legislatures.
Bipartisan by nature, the nonprofit organization monitors all 50 statehouses and their relationships with the federal government. To that end, the conference publishes monthly monitors on pre-emption and mandates, tracking federal legislation that would sap state control or impose federal requirements. The Real ID Act, an immigration and homeland security-minded effort, requires standardized features on all 50 states' driver's licenses.
Signed by President Bush in May, the law has raised rancor in recent months, drawing disparaging comparisons to No Child Left Behind.
"At least in No Child Left Behind, state legislators almost uniformly agree with the goals. They're not necessarily comfortable with the mandate process or the punitive measures in No Child Left Behind, but they agree with the goals," Rauschenberger says. "In the case of Real ID, there's not a set of shared goals. There wasn't even a set of shared goals in Congress. That bill was attached to an appropriation bill for the war in Iraq."
It's true. The measure never even got a committee hearing.
"I guess what's most notable about that is just the level of federal arrogance that was involved. Congress paid very little attention, I think, to the state and local objections and was prepared to largely dismiss them out of hand and just forge ahead," says Conlan, the professor and author. "Admittedly, I think you could make the case for dealing more effectively with issues of immigration control, but to impose those costs and requirements on the state driver's license process is just, again, rather awe-inspiring."
It's expected to take months for the federal government to iron out detailed rules for the Real ID Act. Until then, Illinois won't even guess at a price tag, says Randy Nehrt, spokesman for Secretary of State Jesse White, whose office issues driver's licenses and state ID cards.
While the particulars must be sorted out, states know that, by 2008, they must verify Social Security numbers with the feds and check the authenticity of birth certificates and other identifying documents. Those papers then must be scanned and stored electronically for seven to 10 years. The ID cards themselves must display a driver's full name and include a digital photograph. Illinois already verifies Social Security numbers with the federal government online and uses digital photos.
"I think we're ahead of other states in quite a few aspects, but there are other areas where we'll have to make some changes, both internally and legislatively," Nehrt says. "And they'll involve some additional costs for the state."
It's unclear just how much the new requirements will cost the states. Early this year, the Congressional Budget Office pegged nationwide implementation at $100 million over five years. Observers argue that estimate borders on delusional. Washington state alone might end up shelling out $97 million over two years, an official there said this fall.
Real ID was a major topic of debate last August at the National Conference of State Legislatures' annual meeting in Seattle. In addition to equipment purchases, most states will need additional workers to tackle the labor-intensive process of scanning and storing birth certificates and similar documents, says Cheye Calvo, a senior policy specialist for the national conference. The law also will put an end to online and telephone license renewals, likely forcing California and other states to add front-line staff to handle surging crowds at DMV counters.
At first, the national conference pegged the impact of Real ID on the states at $500 million, but "the difficulty is estimating how much personnel costs are going to be associated with those varying tasks," Calvo says. "I think the $500 to $750 million is probably going to jump into the billions. The question is how high, and we just don't have an answer for that."
Meanwhile, with hurricane relief costs depleting an already taxed treasury, Congress is expected to lowball most other requests. The House OK'd $100 million for the first year of Real ID implementation, but the final sum will more likely settle near the $40 million approved by the Senate, says Calvo, who is based in Washington, D.C.
Even if Congress gravitates toward the generous side, states won't see funding until federal bureaucrats finish drafting rules for implementing Real ID. This slow and stingy approach mirrors federal forays into education and elections policy.
In most cases, a mandate is a means to a desired policy end dreamed up by Congress or the president. But, in a bit of a twist, state and federal lawmakers are scrambling to see who will be the first to legislate against a widely unpopular U.S. Supreme Court decision.
In June, the court ruled in Kelo v. New London that a Connecticut town could take private land to further private economic development. The 5-4 decision seemingly contradicts widespread sentiment that land grabs should be limited to a public purpose, be it an interstate extension or a new library on a blighted lot. In a July poll, 88 percent of Connecticut voters disagreed with the Supreme Court's interpretation.
Such sentiment moved Congress to craft legislation that would strip funding from states that try to enforce the Kelo decision.
And the backlash sparked a response in Illinois. In recent months, state lawmakers have held hearings on eminent domain, or public land acquisition. One official already has written legislation to block the implications of Kelo. But Illinois appears to be covered already.
"I think the Kelo decision has generated an improper rush to judgment by a number of Illinois legislators. As far as it applies to Illinois law, Kelo is much ado about nothing," says Rep. Fritchey, the chairman of the House committee on civil law. "It's that political unpopularity that has led a lot of legislators to say that the sky is falling."
The Illinois Constitution provides for the taking of private land only for public use. In addition, the Illinois Supreme Court ruled in 2002 that government land acquisition must serve a public purpose. In that case, a state-sanctioned Metro East economic development authority took private land on behalf of a nearby NASCAR racetrack. The authority argued the purchase would reduce traffic congestion, a benefit for the general public. But the court ruled that wasn't a compelling enough reason to end negotiations and simply commandeer private property.
On eminent domain at least, Illinois appears to be insulated from federal intrusion. Still, if the classroom, the polling place and the DMV are no longer off limits, it wouldn't be a surprise if the federal government were to tell the states when they can take your own backyard.
Illinois Issues, November 2005
