S. Hrg. 109–82

PASSING THE BUCK: A REVIEW OF THE

UNFUNDED MANDATES REFORM ACT

HEARING

BEFORE THE

OVERSIGHT OF GOVERNMENT MANAGEMENT, 

THE FEDERAL WORKFORCE AND THE DISTRICT 

OF COLUMBIA SUBCOMMITTEE

OF THE

COMMITTEE ON 

HOMELAND SECURITY AND 

GOVERNMENTAL AFFAIRS 

UNITED STATES SENATE

ONE HUNDRED NINTH CONGRESS

FIRST SESSION

APRIL 14, 2005

Printed for the use of the 

Committee on Homeland Security and Governmental Affairs

(

PASSING THE BUCK:

A REVIEW OF THE UNFUNDED MANDATES REFORM ACT

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WASHINGTON : 

For sale by the Superintendent of Documents, U.S. Government Printing Office

Internet: bookstore.gpo.gov Phone: toll free (866) 512–1800; DC area (202) 512–1800

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21–429 PDF 2005

S. Hrg. 109–82

PASSING THE BUCK: A REVIEW OF THE

UNFUNDED MANDATES REFORM ACT

HEARING

BEFORE THE

OVERSIGHT OF GOVERNMENT MANAGEMENT, 

THE FEDERAL WORKFORCE AND THE DISTRICT 

OF COLUMBIA SUBCOMMITTEE

OF THE

COMMITTEE ON 

HOMELAND SECURITY AND 

GOVERNMENTAL AFFAIRS 

UNITED STATES SENATE

ONE HUNDRED NINTH CONGRESS

FIRST SESSION

APRIL 14, 2005

Printed for the use of the 

Committee on Homeland Security and Governmental Affairs

(

(II)

COMMITTEE ON HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS 

SUSAN M. COLLINS, Maine, Chairman 

TED STEVENS, Alaska 

GEORGE V. VOINOVICH, Ohio 

NORM COLEMAN, Minnesota 

TOM COBURN, Oklahoma 

LINCOLN D. CHAFEE, Rhode Island 

ROBERT F. BENNETT, Utah 

PETE V. DOMENICI, New Mexico 

JOHN W. WARNER, Virginia 

JOSEPH I. LIEBERMAN, Connecticut 

CARL LEVIN, Michigan 

DANIEL K. AKAKA, Hawaii 

THOMAS R. CARPER, Delaware 

MARK DAYTON, Minnesota 

FRANK LAUTENBERG, New Jersey 

MARK PRYOR, Arkansas

MICHAEL D. BOPP, Staff Director and Chief Counsel 

JOYCE A. RECHTSCHAFFEN, Minority Staff Director and Counsel 

AMY B. NEWHOUSE, Chief Clerk 

OVERSIGHT OF GOVERNMENT MANAGEMENT, THE FEDERAL 

WORKFORCE AND THE DISTRICT OF COLUMBIA SUBCOMMITTEE 

GEORGE V. VOINOVICH, Ohio, Chairman 

TED STEVENS, Alaska 

NORM COLEMAN, Minnesota 

TOM COBURN, Oklahoma 

LINCOLN D. CHAFEE, Rhode Island 

ROBERT F. BENNETT, Utah 

PETE V. DOMENICI, New Mexico 

JOHN W. WARNER, Virginia 

DANIEL K. AKAKA, Hawaii 

CARL LEVIN, Michigan 

THOMAS R. CARPER, Delaware 

MARK DAYTON, Minnesota 

FRANK LAUTENBERG, New Jersey 

MARK PRYOR, Arkansas

ANDREW RICHARDSON, Staff Director 

RICHARD J. KESSLER, Minority Staff Director 

NANCI E. LANGLEY, Minority Deputy Staff Director 

TARA E. BAIRD, Chief Clerk 

(III)

C O N T E N T S 

Opening statements: Page 

Senator Voinovich ............................................................................................. 1

Senator Carper ................................................................................................. 3

Senator Coleman .............................................................................................. 14

Senator Coburn ................................................................................................. 28

Prepared statement: 

Senator Lautenberg .......................................................................................... 33

WITNESSES 

THURSDAY, APRIL 14, 2005

Orice M. Williams, Director, Strategic Issues, U.S. Government Accountability 

Office ..................................................................................................................... 5

Hon. John Graham, Administrator, Office of Information and Regulatory Affairs, Office of Management and Budget ............................................................ 7

Elizabeth Robinson, Deputy Director, Congressional Budget Office ................... 8

Hon. John Hurson, Delegate, Maryland House of Delegates, and President, 

National Conference of State Legislatures ........................................................ 21

Hon. Colleen Landkamer, Commissioner, Blue Earth County, Minnesota, and 

First Vice President, National Association of Counties .................................... 23

Hon. Nick Licata, City Council Member, Seattle, Washington, on Behalf of 

the National League of Cities ............................................................................. 25

ALPHABETICAL LIST OF WITNESSES

Graham, John: 

Testimony .......................................................................................................... 7

Prepared statement .......................................................................................... 49

Hurson, Hon. John: 

Testimony .......................................................................................................... 21

Prepared statement .......................................................................................... 112

Landkamer, Hon. Colleen: 

Testimony .......................................................................................................... 23

Prepared statement with an attachment ....................................................... 119

Licata, Hon. Nick: 

Testimony .......................................................................................................... 25

Prepared statement with attachments ........................................................... 167

Robinson, Elizabeth: 

Testimony .......................................................................................................... 8

Prepared statement with an attachment ....................................................... 54

Williams, Orice M.: 

Testimony .......................................................................................................... 5

Prepared statement .......................................................................................... 34

APPENDIX

A CBO’s report entitled ‘‘A Review of CBO’s Activities in 2004 Under the 

Unfunded Mandates Reform Act,’’ March 2005 ................................................. 62

Survey by National Association of Counties entitled ‘‘Unfunded Mandates: 

A Snapshot Survey,’’ March 2005, submitted by Ms. Landkamer ................... 127

Questions and responses for the Record from: 

Ms. Williams ..................................................................................................... 187

Ms. Robinson ..................................................................................................... 192

Mr. Hurson ........................................................................................................ 196

(1)

PASSING THE BUCK: A REVIEW OF THE 

UNFUNDED MANDATES REFORM ACT 

THURSDAY, APRIL 14, 2005

U.S. SENATE, OVERSIGHT OF GOVERNMENT MANAGEMENT, THE FEDERAL

WORKFORCE, AND THE DISTRICT OF COLUMBIA SUBCOMMITTEE, OF THE COMMITTEE ON HOMELAND SECURITY

AND GOVERNMENTAL AFFAIRS, Washington, DC. 

The Subcommittee met, pursuant to notice, at 10:04 a.m., in 

room SD–342, Dirksen Senate Office Building, Hon. George V. 

Voinovich, Chairman of the Subcommittee, presiding. 

Present: Senators Voinovich, Coleman, Coburn, and Carper. 

Senator VOINOVICH. Good morning. Thank you all for being here 

today. 

Today, the Subcommittee on the Oversight of Government Management, the Federal Workforce, and the District of Columbia 

meets to examine a subject in which I have long been interested. 

I am pleased that my colleague and former governor, Senator Carper, is serving as Ranking Member of this Subcommittee today. 

The two of us have been concerned about this a long time. 

Today’s hearing entitled, Passing the Buck, A Review of the Unfunded Mandates Reform Act will review UMRA’s impact on Federal, State and local governments. Over the course of my career as 

a State representative, county auditor, commissioner, lieutenant 

governor, and mayor I first watched the relationship between the 

Federal Government, its State and local counterparts affecting our 

citizens and our communities. 

My experience fuels my passion for federalism. I understand the 

importance of balancing the Federal Government’s power with the 

powers our founding fathers envisioned for the States and that is 

why in 1991, as a member of the National Governors Association, 

I started a long campaign with the State and local government coalitions to curb the practice of Federal unfunded mandates. It’s really interesting that at my first governors meeting I had this resolution on unfunded mandates, and there was this governor who came 

over and put his arm around me and said, partner, I am with you 

on this. That was Bill Clinton. 

As Governor of Ohio I requested a first of its kind study to examine the impact of unfunded mandates. In the introduction to this 

report I noted that too often Federal mandates on the States interfere with one of the most fundamental tasks of government, the 

setting of priorities. State officials entrusted by the voters with the 

responsibility to set a course for State Government, provide servVerDate 0ct 09 2002 14:24 Aug 08, 2005 Jkt 021429 PO 00000 Frm 00007 Fmt 6633 Sfmt 6633 C:\DOCS\21429.TXT SAFFAIRS PsN: PHOGAN
2

ices and plan for the future find their ability to do these things constrained by Federal directive that take legal or statutory precedence. According to our findings, between 1992 and 1995, Ohio had 

unfunded mandates of $1.7 billion. 

This unique report served three important purposes in the unfunded mandates debate. First, it illustrated the growing mandate 

problem in my State. 

Second, it galvanized lobbying efforts of the big seven by providing them with evidence that unfunded mandates have a real impact on State and local governments. 

Finally, it underscored the importance of enacting Federal unfunded mandate legislation in Congress. And thankfully, State and 

local efforts to pass UMRA were supported strongly by Dirk Kempthorne, William Roth, John Glenn, Representatives Rob Portman, 

Tom Davis, and Bill Clinger. 

One of the highlights of my tenure during my term as governor 

was working with Congress on this vital issue. As a matter of fact 

the first time I set foot on the floor of the U.S. Senate was when 

UMRA was passed on March 15, 1995. I was honored to be at the 

Rose Garden representing State and local governments when President Clinton signed the legislation on March 22, 1995 and I have 

that pen that he used to sign it proudly displayed on the walls of 

my office today. 

When I was elected to the Senate I vowed to continue examining 

how the Federal Government could improve the way it works with 

all levels of government to better serve the American people. My 

interest in federalism and my involvement in the passage of UMRA 

led me to request a two-part GAO review of the law. The first report issued in May 2004 provided a general overview of UMRA and 

analyzed the law’s effectiveness. In this review, GAO found evidence that UMRA is limiting the number of Federal mandates, but 

that its procedures, definitions, exceptions, and exclusions might 

still allow some unfunded mandates to reach State and local governments. 

For example, in 2001 and 2002, GAO found that only 5 of 377 

statutes enacted and 9 of 122 major regulations issued contained 

mandates above UMRA thresholds. However, over the same time 

43 statutes were enacted and 65 regulations issued that might be 

perceived as mandates but were not identified as such. 

For example, the No Child Left Behind Act, which I voted 

against because I was concerned about its cost and the policy of 

federalizing education, was not identified as an unfunded mandate 

because it is a condition of Federal financial assistance. In order 

for States to receive funding under the No Child Left Behind Act 

they must demonstrate that they are meeting Federal requirements established for educational standards and assessments. 

However, if States can provide compelling reasons they may opt 

out of the law and forgo Federal funding. Unfortunately, this portion of the law was considered a condition of Federal financial assistance under UMRA and, therefore, did not meet the definition 

of a mandate. We call it a mandate, but under the law it’s not an 

unfunded mandate. 

The second part which GAO is releasing this morning explores 

whether changes are necessary to strengthen the law. I would like 

3

Ms. Williams to know that the second panel of witnesses will be 

listening intently as you detail your findings this morning. I am extremely interested in hearing how my friends in State and local 

government react to both of GAO’s studies and if they believe that 

changes in the law are required. 

As many of you know, the process of strengthening UMRA began 

this year with a provision in the budget resolution. I was pleased 

that the Budget Committee, Chairman Gregg added language to increase UMRA’s point of order from 50 to 60 votes. I believe this 

provision will strengthen UMRA and ultimately make it much 

more effective. 

I would like to thank GAO for their hard work and dedication 

on producing two comprehensive and informative reports on 

UMRA. In addition, I want to send a warm welcome to the rest of 

our witnesses, including my colleagues from State and local governments. I look forward to discussing this issue with you today and 

I now yield to my good friend, the Senator from Delaware, Senator 

Carper. 

OPENING STATEMENT OF SENATOR CARPER 

Senator CARPER. Thank you, Mr. Chairman. Mr. Chairman, I 

have a statement I’d like to submit for the record, if I may. 

Senator VOINOVICH. Without objection. 

[The prepared opening statement of Senator Carper follows:]

PREPARED OPENING STATEMENT OF SENATOR CARPER 

Thank you, Mr. Chairman. It’s a pleasure to sit with you here today in this capacity to discuss an issue that’s been so important to both of us during our careers in 

public service—the impact unfunded Federal mandates have on State and local governments and what we can do to address them. 

When I was governor, we were able to balance our budget every year I was in 

office. We were also able to cut taxes 7 out of the 8 years I was fortunate enough 

to be entrusted by the people of Delaware with their governorship. Times were good, 

then, but it still angered me to think that our job was made more difficult because 

of the money our State was spending to comply with Federal mandates we had little 

role in crafting and oftentimes probably didn’t agree with. 

Unfunded mandates are still around today and they’re still a drain on State and 

local resources. We’ll hear testimony this morning from witnesses on our second 

panel that Federal mandates, whether we think they’re meritorious or not, still have 

a staggering impact on budgets in our States, counties and cities. That said, the Unfunded Mandates Reform Act that you played such a key role in bringing to fruition 

a decade ago, Mr. Chairman, appears to have been a success. 

While there’s still work to be done, it’s clearer now than it was before the passage 

of the 1995 Act that Federal legislative and regulatory actions have an impact outside of Washington, DC. Because of the tools built into the Act, the Federal Government probably imposes fewer, less burdensome mandates on State and local governments. 

As we’ll hear today, only a fraction of the legislative and regulatory mandates examined under the Act have been deemed unfunded from year to year. This could 

be because legislators and regulators have learned their lesson and are cooperating 

with the officials on the ground in State and local governments who are impacted 

by their actions. It could mean we’re avoiding actions that might unnecessarily or 

unfairly push costs down to other levels of government. Others will argue, however, 

that it’s because the Act is not strong enough and is not applied to much of the work 

done here in Washington from day to day. 

I look forward to hearing from our witnesses today about how the 1995 Act has 

worked and what might need to be done to improve it. While it’s not possible to 

eliminate altogether all Federal mandates that impose costs on State and local governments, we should see if it’s possible to get a better sense of how much a given 

law or regulation will truly cost State and local governments. This should give decisionmakers like you and me, Mr. Chairman, the information we need to make more 

4

informed choices when developing legislation that might impact State and local 

budgets. 

I’d also like to learn some more about any gaps in the 1995 Act that allow mandates that should be more heavily scrutinized to escape our attention. 

Thank you again for holding this hearing, Mr. Chairman. I look forward to hearing from our witnesses and to working to ensure that work Congress did a decade 

ago continues to be effective.

Senator CARPER. Thank you. 

Now to our witnesses, welcome this morning. This is one issue 

that Senator Voinovich and I have been joined at the hip on for 

some time. While Bill Clinton no longer has his arm around him 

and saying, partner, we are working on this one together, Senator 

Voinovich and I very much are partners in this endeavor. I think 

the good work that he did, the leadership that he provided more 

than a decade ago has not been for naught. Some good has come 

from that effort. 

As in most things, can we do a better job? Sure, we can. Can we 

do a better job here with respect to unfunded mandates? Sure, we 

can. Part of what I hope comes out of today’s hearing is a bit of 

a path forward, some consensus on what further changes need to 

be made. 

I, too, am encouraged by the change that was reflected in the 

budget resolution with respect to raising a point of order to 60 

votes. I think that’s a positive step. There may be some other 

things that we ought to be doing and considering, and hopefully 

we’ll hear some of that from our panel. So we thank you all for 

being here and look forward to your testimony and the chance to 

have a conversation with you. 

Thanks, Mr. Chairman. 

Senator VOINOVICH. Thank you, Senator Carper. 

We are pleased that we have Senator Coburn from Oklahoma. 

Senator, do you have a statement? 

Senator COBURN. Mr. Chairman, I don’t have a written statement. I would just, first of all, apologize in advance. We are in the 

midst of an executive committee meeting in Judiciary so I’ll be in 

and out and intermit with my attendance. I am very appreciative 

that you’re holding this hearing. I believe there are still way too 

many mandates coming out of Washington for States and local 

communities, and many of them, although we call them funded, 

they’re not. So there is a difference between an unfunded mandate 

and an underfunded mandate, and the way we are getting around 

the law today is underfunding the mandates. So I look forward to 

studying this report and also the testimony of your witnesses 

today, and thank you for holding the hearing. 

Senator VOINOVICH. Thank you very much. 

We do have two excellent panels today and I look forward to a 

good discussion. All witnesses’ statements will be entered into the 

record in their entirety and I’d appreciate it if you would limit your 

remarks to 5 minutes. 

It’s the custom of the Subcommittee to require swearing in our 

witnesses and if you will stand, and those from the local governments stand, I’ll swear you in. 

[Witnesses sworn.] 

Senator VOINOVICH. Let the record show that all of the witnesses 

answered in the affirmative. Our first panel of witnesses, Orice 

5

1The prepared statement of Mr. Williams appears in the Appendix on page 00. 

Williams is Director of Strategic Issues at the Government Accountability Office and served as the project leader on the unfunded mandate report. We are so glad that you’re here, and GAO 

did a super job, as they always do. 

Dr. Graham is the Administrator of the Office of Information and 

Regulator Affairs at the Office of Budget and Management. Dr. 

Graham, welcome back to this Subcommittee. We haven’t seen you 

for some time. We do remember the hearings on your nomination. 

There was some controversy about them and I told my colleagues 

that you would be the best OIRA director that we could get and 

you’ve done an outstanding job over there of looking after regulations in the Federal Government. I was pleased that you’re there. 

Mr. GRAHAM. Thank you, sir. 

Senator VOINOVICH. In my opinion, you have really thrown the 

ball down the middle. I’ve watched some of the decisions you’ve 

made and I want to congratulate you. I think you’re really doing 

the job that we expect you to do. 

Dr. Elizabeth Robinson is the Deputy Director of CBO. I want to 

thank CBO for the outstanding job that you have done in providing 

mandate statements. It’s a lot of work. I think you’ve got four or 

five people over there that work on it on a continuing basis. 

They’re here today. I understand that the team leader is Terri 

Gullo, and I want to thank you, Terri, for your leadership. This 

issue that may not seem important to some people but I can tell 

you it’s really important to the local government officials that are 

here and local government representatives throughout the United 

States. 

We’ll start out with Ms. Williams. 

TESTIMONY OF ORICE M. WILLIAMS,1 DIRECTOR, STRATEGIC 

ISSUES, U.S. GOVERNMENT ACCOUNTABILITY OFFICE 

Ms. WILLIAMS. Mr. Chairman, and Members of the Subcommittee, thank you for the opportunity to participate in today’s 

hearing to discuss the Unfunded Mandates Reform Act of 1995, 

commonly known as UMRA. My statement this morning focuses on 

two reports issued by GAO in the past year at your request. 

First, in May 2004 we issued a report that identified a number 

of issues surrounding the gap between Federal mandates under the 

Act and those that may be viewed as mandates by affected parties. 

As a follow-up to that report you asked that we obtain the views 

of a diverse group of parties knowledgeable about UMRA as well 

as Federal mandates. 

In summary, we found that identifying and analyzing Federal 

mandates is a complex process under UMRA. This is due primarily 

to the Act’s various definitions, exceptions, and exclusions. In 2001 

and 2002, the period covered by our review, as you mentioned only 

5 of the 377 statutes enacted and 9 of 122 major or economically 

significant final rules issued were identified as containing Federal 

mandates at or above UMRA’s thresholds. Of these, only one final 

rule contained an intergovernmental mandate. 

Despite the application of UMRA and the paucity of actions identified as mandates under the Act, we found other provisions of statVerDate 0ct 09 2002 14:24 Aug 08, 2005 Jkt 021429 PO 00000 Frm 00011 Fmt 6633 Sfmt 6601 C:\DOCS\21429.TXT SAFFAIRS PsN: PHOGAN
6

utes and rules that did not trigger UMRA requirements, but appear to have potential financial impacts similar to those identified 

as containing Federal mandates at or above UMRA thresholds. As 

a result, many were viewed as unfunded or underfunded mandates 

by affected parties. 

Building on those findings, as requested, we asked a diverse 

group of parties from academia, business, Federal agencies, public 

interest advocacy groups, and State and local governments to share 

their views about strengths and weaknesses of UMRA and Federal 

mandates. Two issues quickly emerged. 

First, UMRA’s coverage was the first issue cited across sectors. 

The vast majority saw UMRA’s coverage as a weakness of the Act 

because it excludes many potentially significant actions from the 

scrutiny of UMRA. Most offered ways that the Act’s coverage could 

be expanded. However, a few disagreed, believing the Act should, 

in fact, be kept narrow. 

Second, parties across the sectors also raised a number of issues 

concerning the lack of evaluation and research of mandates in general. They felt more and better retrospective analysis would result 

in better information about the costs and benefits of mandates and 

could potentially improve prospective analysis. 

In closing, Mr. Chairman, I would like to reiterate our findings 

and share a few observations. 

First, of the 100-plus comments provided, almost one-third pointed out the strengths of UMRA, and even its harshest critics did not 

suggest that the Act be repealed. 

Second, and not surprisingly, coverage continues to be an issue 

in most sectors. To the extent that UMRA plays a role in shining 

a light on unfunded mandates, there is some evidence that UMRA 

has resulted in fewer legislative mandates at or above UMRA’s 

thresholds. Although UMRA does not ban the imposition of unfunded mandates, broadening coverage would result in more information about a wider range of Federal actions, but not necessarily 

prevent them. 

Third, as I mentioned at the onset, retrospective analysis 

emerged as a key issue when discussing Federal mandates. We 

heard repeatedly about the need for various types of analysis to 

evaluate existing programs, but also as a tool to improve the design 

and prospective analysis of future actions. 

Finally, as we move forward in an environment of constrained 

fiscal resources, the issue of unfunded mandates raises broader 

questions about the assignment of fiscal responsibilities within our 

Federal system. Most major domestic programs, costs, and administrative responsibilities are shared. Therefore, part of this public 

policy debate includes a re-examination of the Federal Government’s role in our system, and a need to sort out how responsibilities for these types of programs should be financed in the future. 

If left unchecked, unfunded mandates can weaken accountability 

and remove constraints on decisions by separating the enactment 

of benefit programs from the responsibility of having to pay for 

these programs. Likewise, 100 percent Federal financing of intergovernmental programs can pervert fiscal incentives necessary to 

ensure proper stewardship at the State and local level for shared 

programs. 

7

1The prepared statement of Mr. Graham appears in the Appendix on page 00. 

This concludes my oral statement and I would be happy to answer any questions. 

Senator VOINOVICH. Thank you, Ms. Williams. Dr. Graham. 

TESTIMONY OF HON. JOHN GRAHAM,1 ADMINISTRATOR, OFFICE OF INFORMATION AND REGULATORY AFFAIRS, OFFICE 

OF MANAGEMENT AND BUDGET 

Mr. GRAHAM. Good morning, Mr. Chairman, and Senator Carper. 

As you know, an important reason for the enactment of the Unfunded Mandates Act was to ensure that Congress and the Executive Branch better understood and considered the impact of laws 

and regulations on our intergovernmental partners and on the private sector before these laws and regulations were enacted. The 

Administration firmly supports the principles on this Act and we 

have been working to increase the opportunities for our intergovernmental partners to participate fully in the regulatory process. 

Let me give you some feel how this Administration has compared 

to previous administrations on the rate of growth in unfunded 

mandates. I guess it’s the story of Washington, DC, when you talk 

about progress you only talk about rates of growth in things. You 

never actually reduce anything. But, nonetheless, that’s the situation we are in. 

When OMB began to keep records in 1981 we tracked major 

rules on State and local governments and the private sector. During that 24-year period from 1981 to 2004, the average annual 

growth rate in these major rules was about $5 billion per year on 

top of the existing several hundred billion dollars a year in regulatory costs. During the President’s first term we reduced that rate 

of growth to under $2 billion per year, or about 68 percent lower 

than the 24-year average. These statistics, while they’re not in my 

written statement, are in the annual report to Congress which we 

have provided you under the Regulatory Right-to-Know Act. 

So the good news is that we are slowing the growth rate or unfunded mandates. The bad news is we haven’t really yet been effective of that getting at the existing base of these unfunded mandates. 

Let me conclude with a few remarks about my experience in the 

Executive Branch dealing with regulatory agencies on the subject 

of what are the conceptual solutions to a proposal for an unfunded 

mandate. Let’s remember that they’re often times very exciting and 

noble ideas that are behind unfunded mandates even though they 

don’t have any funding behind them. 

The first potential conceptual solution to that problem is to fund 

the unfunded mandate at the Federal level. Let me assure you that 

my budget colleagues at OMB hearing me even utter that sentence 

would be shuddering about the prospect of all of that Federal 

spending. But I think we recognize that conceptually this is one of 

the possible solutions to the problem. It needs to be examined, and 

clearly it needs to be examined in the context of an overall fiscal 

approach to the Federal Government. 

A second conceptual response to the proposal for an unfunded 

mandate is to reject the unfunded mandate and simply allow the 

8

1The prepared statement of Ms. Robinson appears in the Appendix on page 00. 

State and local governments or the private sector to handle the 

issue as they see appropriate. We, at OMB, look at that option, 

whenever possible, as a potential solution. 

The third solution, and my experience, practically speaking it 

tends to be the most effective, is to find more cost-effective ways 

or less costly ways of achieving the purpose of the unfunded mandate than were originally contemplated in the proposal. Allowing, 

for example, State and local governments to have flexibility to consider less costly ways of achieving whatever the objective may be, 

whether it be in environment, whether it be in education and so 

forth. 

Those, I think, conceptually are the three solutions we have 

when we have a proposal for an unfunded mandate, and I think 

that when you strip away all of the details that’s what it boils 

down to. So I look forward to the discussion of the Subcommittee 

and I have my written statement with some details. 

Senator VOINOVICH. Thank you, Dr. Graham. Dr. Robinson. 

TESTIMONY OF ELIZABETH ROBINSON,1 DEPUTY DIRECTOR, 

CONGRESSIONAL BUDGET OFFICE 

Ms. ROBINSON. Thank you. Good morning, Mr. Chairman and 

Mr. Carper. I am very glad to be here today to discuss the Unfunded Mandates Reform Act and CBO’s role in implementing 

parts of the Act. To provide some context, CBO has now about 10 

years of experience in implementing the Act. During that time we 

have transmitted over 5,200 reviews of specific pieces of legislation, 

and under the definitions in the Act, about 12 percent of those 

found mandates on States and localities, and 14 percent found such 

mandates on the private sector. 

Now as you know, UMRA not only requires that we identify 

mandates but that we estimate their cost and compare those costs 

to the thresholds that are established in the Act. A much smaller 

universe of the mandates we see actually have costs higher than 

those thresholds. Again, for the total universe of 5,200 only about 

1 percent had mandates on States and localities, as defined in the 

Act, with costs above the threshold, and about 3 percent private 

sector mandates with costs above the threshold. 

At the same time, we can’t always estimate the size of these 

mandates, especially if there are many more steps in the process 

that have to happen after the mandate is enacted; regulations promulgated by the Executive Branch or other things. So UMRA also 

requires that if we say we can’t estimate the cost, we also explain 

why. A similar number of bills to those that actually contain mandates with costs over the threshold have not been estimable by 

CBO at the time the legislation was being considered by the Congress. 

Also, as bills are considered by the Congress, we find that only 

about a third of those where we identify mandates with costs over 

the thresholds, I guess about 20 percent on States and localities 

and about a third on the private sector, actually get enacted into 

law. That’s not surprising to us actually because during the process 

members and their staff are very interested in the impacts of their 

9

legislation on States, localities, and the private sector. They work 

with us on specific provisions. They ask us for whatever information we can give them. They then respond; for example, the House 

has brought up UMRA points of order and committees have modified mandates on the Floor and sometimes they have provided 

funding as well to cover the cost of the mandate. 

So in a very broad brush way and in terms of procedure, the Act 

has been implemented fairly smoothly over the last 10 years. But 

during that time there’s been a lot of concern about the definitions 

in the Act, whether or not they’re providing the information that 

policymakers need as they’re going through the legislative process 

to adequately assess what the impact of the legislation is going to 

be. 

GAO has already very ably mentioned that one of the biggest 

problems concerns legislation that would change conditions for existing grant programs. When a State is already participating in a 

grant program and the conditions are changed, and if those conditions cause them to spend more money, it can feel like a mandate. 

It may not be a mandate under UMRA but it can feel like a mandate. We hear that often and try to work with staff to understand 

how UMRA defines mandate as those kinds of bills go through the 

process. 

At a much smaller level, a more technical level, there are some 

aspects of the definitions in UMRA that CBO would appreciate 

some legislative clarification on. We have mentioned these as they 

come up in the various statements that we put forward, but there 

are two central questions that we have had to face over the years. 

One question is that if the bill extends an existing mandate, is 

that actually a new mandate that then should be considered under 

the procedures of UMRA? 

The second is, what happens if a bill does not itself create a mandate but, by its actions, it triggers spending under other existing 

mandates? Should that bill be considered under UMRA as containing a mandate? 

Senator CARPER. Would you say that again? 

Ms. ROBINSON. If you have a bill that, for instance, sites a facility in a specific area and that’s all it does, but that triggers spending on the part of the States in order to provide transportation 

going there under Federal regulation, maybe environmental regulations, and those costs exceed the threshold, does that bill then contain a mandate? Those mandates were created in previous bills, 

but the siting of a facility would trigger additional spending. So is 

that a mandate under UMRA? 

We think it’s very timely that now, after 10 years and a lot of 

experience implementing UMRA, that the Subcommittee reconsider 

this piece of legislation. There have been very few changes to the 

law over the last 10 years and we look forward to working with the 

Subcommittee to consider issues as they come up. Thank you. 

Senator VOINOVICH. Thank you very much. 

We are going to have rounds of questions of 6 minutes. The first 

question I have is for all of the witnesses. In the second report, 

GAO noted that many stakeholders would like a retrospective evaluation of mandates to ensure they were achieving their intended 

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ties. Do you believe that this process would help measure the actual cost of mandates? If so, who should be responsible for conducting such an evaluation for both laws and regulations? 

Mr. GRAHAM. Let me start by just giving you, Senator, some ballpark and sobering numbers on that subject. Since OMB began to 

keep records in 1981—so that includes some of the pre-UMRA period, OMB has cleared 20,000 Federal regulations. 

Senator VOINOVICH. How many? 

Mr. GRAHAM. Twenty thousand. Most of those, to the best of our 

knowledge, have never been re-examined to determine how much 

they actually cost or what their effective was. We could get you 

those same numbers for the period in the 1990’s of the UMRA period. 

The question of who should perform those evaluations, I think, 

is a difficult one. On the one hand, the agencies themselves might 

seem to be a logical place to go for an evaluation. But then one 

could argue that maybe they’re not in the most objective position 

to evaluate the regulations that have promulgated. Some would say 

OMB should be involved in that activity, but I can assure you some 

would say that we are not the most objective people to evaluate 

those. 

So, I think one thing that needs to be given thought to is the 

question of where that most objective evaluation of those would 

come from. I think in our report to Congress we have actually 

asked for public comment on about 15 independent academic studies that have been done of the evaluation of the costs and benefits 

of previous regulations, and in the process we’ll be learning more 

about the subject about how good this literature is in its technical 

quality and how it can be expanded in the future. 

Ms. WILLIAMS. Just to expand on that. In terms of looking at retrospective analysis, two things were made very clear to us. One, 

when conducting this type of analysis it’s important to look at the 

costs that were estimated versus the actual costs as well as the 

benefits. And two, to perform this type of analysis to inform prospective analysis. I think in terms of the agencies having a role, 

to the extent that the agencies perform this type of analysis it may 

actually strengthen their ability to perform analysis going forward 

in the future. 

Senator VOINOVICH. Dr. Robinson. 

Ms. ROBINSON. CBO is always supportive of more analysis. We 

would love to have more analysis on how these mandates have 

turned out. But we also have a number of questions that, I think, 

would have to be answered in that kind of retrospective review. 

One is, what would the States and localities have done otherwise? Many mandates that we see going through require for the 

majority of States something that some States have already embarked upon. Would it be that in the intervening period after the 

mandate is enacted other States would not have taken this up in 

the absence of the Federal mandate? So trying to determine the 

counterfactual, what is it that you’re measuring against, is something that I think we’d need to think hard about when we are 

quantifying these costs. 

Senator VOINOVICH. Dr. Graham, you look at these regulations 

and come back and try to define whether or not they’re an unVerDate 0ct 09 2002 14:24 Aug 08, 2005 Jkt 021429 PO 00000 Frm 00016 Fmt 6633 Sfmt 6601 C:\DOCS\21429.TXT SAFFAIRS PsN: PHOGAN
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funded mandate. Do you just take all your regulations and go back 

and look at them and see what their cost is afterwards? In other 

words, Congress passes a law requiring agencies to issue regulations and there’s an estimate of what that regulation is going to 

cost, so you do that. But so often after it has passed the cost skyrockets. Is there any way that those kinds of regulations are 

flagged after the fact? 

Mr. GRAHAM. We do provide an opportunity, Senator, each year 

through OMB’s report to Congress on regulation which was developed through the Regulatory Right-to-Know Act, which I know you 

supported with Senator Thompson when it was passed. What that 

report does each year is it provides the public, including State and 

local governments, an opportunity to suggest specific regulations 

that they believe are more costly than they were originally thought, 

or are outmoded, or don’t in fact provide benefits. 

That opportunity has been available in 3 of the first 4 years of 

this Administration. We have received a substantial number of 

comments. Most of them, however, are from the private sector 

groups that are affected by unfunded mandates. We have had 

fewer comments from our State and local intergovernmental partners. 

Senator VOINOVICH. I have been concerned about the roles and 

regulations issued by the Environmental Protection Agency and the 

impact they have on local communities. In many instances, the cost 

of them is very large, and in so many instances there is no flexibility in terms of how long it would take to comply with the mandate. 

For example, I’ve got one case of the city of Akron, Ohio has 

agreed to comply with the provisions in terms of storm flow overflow. It’s very expensive and they want to implement it over 30 

years and the EPA says they must do it in 15 years. I’ve asked 

EPA to look and see why something can’t be done about that and 

their attitude is, that’s just the way it is. From my perspective, it’s 

an unfunded mandate, and we keep cutting back the amount of 

money made available to State and local governments for a lot of 

these things that are being mandated and there doesn’t seem to be 

any fairness. 

In other words, if we are not going to provide the funding—we 

start out providing the funding and then we keep ratcheting back 

what we are providing, that increases the cost to the local governments, but there is no consideration given to that impact or the 

time it takes to get the job done. It seems to me that there are a 

lot of areas like that. We really should look at the regulations that 

are turning into unfunded mandates for local governments because 

the feds have just pulled back on funding them. 

For example—I’ll finish on this—the President has recommended 

eliminating approximately 150 programs. Have you examined those 

programs set for elimination? In effect we eliminated funding but 

the requirement to fulfill the Federal law still exists, but now State 

and local governments are going to have to pick up the tab. 

Mr. GRAHAM. As I mentioned in by oral remarks, there are three 

solutions to an unfunded mandate. Fund it, remove the mandate, 

or find less costly alternatives for addressing the objective, like 

your example of a 30-year phase-in period rather than 15 years. 

12

Those are the only three possible solutions that we have been able 

to find when an unfunded mandate is proposed, and all of them are 

painful in some ways. As a practical matter, most of the progress 

we make at OIRA on these issues is in the third category, let’s be 

more creative about finding ways to provide flexibility so people 

can achieve the objective at lower cost. That tends to be, at a practical level, the most successful approach. 

Senator VOINOVICH. Thank you. Senator Carper. 

Senator CARPER. Thank you. Again, our thanks for your testimony today. I just want to come back and revisit some of what 

you’ve already said just to help me synthesize it in my mind. Is the 

consensus that the effect of the 1995 bill has generally been a positive one in terms of, if not reducing unfunded mandates, at least 

reducing the growth of those unfunded mandates? How would you 

all characterize the effectiveness of the bill? 

Ms. WILLIAMS. In terms of the parties we spoke with there were 

definitely sectors that held that sentiment, that it was definitely a 

step in the right direction and it has had some impact on the 

growth of unfunded mandates, especially on the legislative side. 

Senator CARPER. When you say especially on the legislative side, 

you’re talking legislation as opposed to regulatory unfunded mandates? 

Ms. WILLIAMS. Correct, yes. 

Senator CARPER. Dr. Graham. 

Mr. GRAHAM. Just to elaborate, and keep in mind that the analytic requirements that were put in UMRA for regulations on the 

Executive Branch were similar to Executive Order requirements 

that were already in place prior to UMRA. So the big effect was 

on the legislative side, as the previous answer indicated. 

I think your summary of it is a good one. I would say there has 

been progress in slowing the growth in new unfunded mandates. 

However, a weakness in our situation is that we haven’t been able 

to get at very effectively that sea of existing unfunded mandates 

that are already out there, and figuring out a way to evaluate 

whether they’re still effective, whether there are more cost-effective 

ways to address those issues. That’s a much bigger challenge. 

Senator CARPER. Dr. Robinson, same question. 

Ms. ROBINSON. In terms of the analytical requirements and procedures that CBO helps to implement, people are very interested 

in it; members and staff. They’re consuming that information. 

They’re paying attention to it. They find it useful within the limits 

of the Act itself. So if that’s a measure, that they are considering 

the information as legislation goes forward and getting the kinds 

of responses they need, then yes, I think it has helped quite a lot. 

Senator CARPER. The second question would be, if you’re sitting 

up here instead of where you’re sitting, what would you do, either 

to work further on the legislative mandates, or to work on the regulatory mandates? If you were a U.S. Senator, or if you were a 

member of this Subcommittee, what would you do? 

Ms. WILLIAMS. I think based on the conversations we had with 

the parties from the various sectors, one of the interesting issues 

that emerged, and it isn’t really a surprising one, is the issue of 

coverage. You can ask about the number of unfunded mandates, or 

the number of mandates at or above UMRA’s thresholds and the 

13

numbers are relatively small. But when you talk to parties affected 

by mandates that go beyond those identified in UMRA the numbers 

are much larger. So if you look at the issue of coverage and where 

the bar is, it raises issues about whether or not UMRA actually 

covers all actions that affected parties view as unfunded or underfunded mandates. 

Senator CARPER. So let me just ask my question again. What 

would you do? 

Ms. WILLIAMS. I think in terms of——

Senator CARPER. There’s no right or wrong answers here. I just 

want to know, what would you do? 

Ms. WILLIAMS. I think this is the point. After 10 years of experience, now’s the time to revisit some of the provisions of UMRA and 

ask if all of the exclusions and exemptions still make sense in today’s environment, and bring parties from the sectors that we 

spoke with to the table to get their input on whether or not all of 

them still need to be in place today. So that’s where I would start 

if I were in your shoes. 

Senator CARPER. Thank you. Dr. Graham. 

Mr. GRAHAM. I think I would look to the question of how valid 

are the cost estimates that are made on unfunded mandates at the 

time members must vote on them or we at OMB must rule on 

them. We now have 10 years of experience to look at the cost estimates that were made before these mandates were imposed. Let’s 

find out exactly how much they actually did cost, how many times 

was it greater than we thought, how many times was it less than 

we thought. As an analyst my hope is a lot of times we get that 

answer roughly right. But we need to know the answer to that 

question to know how much confidence we should put behind these 

estimates of the cost of unfunded mandates, and I think it would 

be useful if you could stimulate that work to be done. 

Senator CARPER. Thank you. Dr. Robinson. 

Ms. ROBINSON. I’d like to start out with saying that the organic 

Act for CBO actually prohibits me from telling you what I would 

do if I were a Senator. So with that in mind and me wanting to 

keep my job, one thing I would definitely consider is the informational side of the Act—the information in the legislative process is 

always king in terms of affecting things and having them move forward. There might be more information out there on other types 

of legislative vehicles like expansions of requirements under existing grant programs. 

I would mention, though, that these additional classes of legislation would bring in a lot more bills. If we were to try to estimate 

the costs of new conditions on existing grant programs for States 

and localities it would more than double the bills for which we 

would have to do a cost estimate. So I might also think about the 

resources available to CBO for doing this. These changes are actually very significant in terms of the number of bills that would be 

affected and how important it is to Congress to consider this kind 

of information for all bills moving forward. 

Senator CARPER. Thanks. My time has just expired. 

Senator VOINOVICH. Senator Coleman is here with us. Senator 

Coleman, I think that during your term as mayor of St. Paul, the 

Unfunded Mandates Relief legislation was passed. One of the reaVerDate 0ct 09 2002 14:24 Aug 08, 2005 Jkt 021429 PO 00000 Frm 00019 Fmt 6633 Sfmt 6601 C:\DOCS\21429.TXT SAFFAIRS PsN: PHOGAN
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sons why we were successful in getting it passed is that we got terrific support from all of the State and local government groups, and 

it was on a bipartisan basis. It was like a tide that just rolled 

through this place and we got it done. So we are glad that you’re 

here today. 

OPENING STATEMENT OF SENATOR COLEMAN 

Senator COLEMAN. Thanks, Mr. Chairman. I don’t think it’s by 

accident that the three of us sitting up here are all former local 

elected officials; two former mayors and two former governors. You 

notice there’s only three people here, but there are two former mayors and two former governors. 

I have a statement that I would like entered into the record. 

Senator VOINOVICH. Without objection. 

[The prepared opening statement of Senator Coleman follows:]

PREPARED OPENING STATEMENT OF SENATOR COLEMAN 

I want to thank Chairman Voinovich and Senator Akaka for holding this important hearing to review the Unfunded Mandated Reform Act. I also want to take a 

moment and welcome a constituent of mine from Blue Earth County, Commissioner 

Colleen Landkamer, who will be testifying on the second panel today. Commissioner 

Landkamer is First Vice President of the National Association of Counties and has 

served as Commissioner of Blue Earth County since 1988. And, if anyone wants to 

know where Blue Earth County is, you can go back and watch Little House on the 

Prairie reruns and when Laura Ingalls Wilder visited Mankato, she was in Blue 

Earth County. Commissioner Landkamer, I want to thank you for your service and 

I look forward to hearing your testimony today. 

Unfunded mandates have been around for as long as I can remember and created 

real challenges for Saint Paul when I was mayor. When I came to Washington, I 

wanted to bring my experiences from the bottom of the political food chain to committee hearings like this to talk about how unfunded mandates can hamstring local 

leaders who are just trying to get things done. I can remember being told when I 

was mayor that doing business with the city could easily add 20 percent to the cost 

of a project. Well 20 percent on five houses and you have built another house. I was 

also told that adding $1 of Federal money in an activity can trigger thousands of 

dollars worth of additional requirements. The result when I was mayor was that 

some great ideas never got realized because unfunded mandates drove folks away 

from doing business with us. 

I also remember projects that were almost never realized because of the requirements imposed by Federal mandates that were necessary to comply with to receive 

Federal funding. Anyone that has worked with local government knows that communities tend to have scarce resources and opting out of a Federal program is often 

not a solution, nor an option. That leads to cities putting up with one size fits all 

requirements in order to receive funding. 

Earlier this year, I was proud to introduce an amendment to the Senate budget 

resolution, which was approved, to prevent cuts to the Community Development 

Block Grant Program (CDBG). I bring this up because this program is based on the 

idea that we should not have 1,500 command and control programs run out of 

Washington trying to micromanage the needs of communities. Instead through 

CDBG, we help communities meet those needs and priorities through one block 

grant. With all the unfunded mandates coming down from Washington, CDBG is 

one way we actually help communities across the country meet some very critical 

priorities without hampering local leaders. 

As Minnesota’s Mayor in Washington, I still believe that government is beholden 

to the people. That individuals, with the help of their local representatives, can plan 

their lives better than bureaucrats in some distant capital. The Unfunded Mandates 

Reform Act of 1995 was a good first step towards making sure Congress adequately 

appropriated funds for mandates imposed on local governments. However, we still 

have a lot more work to do on this issue. I am pleased that the Senate budget resolution raised the threshold to overcome an unfunded mandates point of order from 

a simple majority to 60 votes. It still remains to be seen whether this will survive 

in Conference but it is something I hope to get feedback on today. I look forward 

15

to hearing the testimony of our panelists and their thoughts on what provisions of 

the Unfunded Mandates Reform Act have worked and what needs to be changed.

Senator COLEMAN. I will note that the second panel contains a 

friend of mine, Commissioner of Blue Earth County, which if you 

go back and watch Little House on the Prairie and when Laura 

Ingalls Wilder visited Mankato, she was in Blue Earth County. So 

this is the heart of America there, and I want to thank Commissioner Landkamer for her service and look forward to her testimony. 

I just have two observations. One, this really is for those local 

leaders, it’s an important issue. I always tell people you never forget when you’re at the bottom of the political food chain. The feds 

tell the State, and the State tells the county and the cities, and 

then our taxpayers are the ones who have to deal with it, and we 

hear about it. So I think this was important legislation. 

The areas, I just met yesterday with a group of home builders 

in Minnesota and they raised the issue of stormwater regulations. 

It’s fascinating, because they actually talked about the EPA passing on the enforcement to folks at county, State, and city level and 

they’ve got various folks now that they know how to respond to in 

dealing with that, and that becomes particularly frustrating for 

them. 

I just want to go back, if I can, to Dr. Graham. The question that 

my colleague, Senator Carper, asked about what would you do, 

your response talked about the validity of cost estimates. But in 

the earlier part of your testimony, one of the things you noted, 

which has been my observation, is that we have made progress in 

slowing up the growth of new unfunded mandates but we still have 

this underlying body of things out there that we have to deal with. 

Could I ask you to respond to the question that Senator Carper 

asked about what would you do, specifically focusing on that earlier 

response where you said, we have still got this challenge with that 

body of mandates that are out there that are still having some impact? What would you do if you were sitting up here dealing with 

that specific issue? 

Mr. GRAHAM. I am not sure, because we at OMB are humbled 

by the challenge of the sea of existing Federal regulations and unfunded mandates that are out there and have accumulated over the 

years. I mentioned, I think before you arrived, that since 1981 

when OMB began to keep records there have been over 110,000 

new Federal regulations adopted by all Federal agencies. Twentythousand of those we at OMB reviewed and cleared. And of those, 

over 1,100 were estimated to cost the economy over $100 million 

per year at the time that they were enacted. 

To the best of our knowledge, nobody has ever looked back at 

most of these regulations to determine what they actually cost, 

what their benefits were, or whether they could be accomplished in 

a better way. And we with two dozen employees in the office I work 

in at OMB are obviously in no position to review all of these tens 

of thousands of regulations. In this Administration we have taken 

one modest step which is, for example, we asked the public to 

nominate specific rules for revision. We are working right now, for 

example, on 76 of them that affect the manufacturing sector of the 

economy. 

16

Senator COLEMAN. That’s very helpful and it goes back to Ms. 

Williams’ comment about engaging again in a conversation with 

some of the folks who are impacted and perhaps they can provide 

us with more focus. Clearly your testimony lays out the daunting 

nature of the task, but perhaps if we can—what I am hearing is 

with a little focus we can begin to make some headway, though certainly not clearing the table. So I appreciate that. 

Mr. Chairman, I want to thank you for having this hearing. This 

is a very important issue to folks in local government and we are 

all impacted by it so I look forward to good things coming out of 

this as we continue to address this issue. Thank you. 

Senator VOINOVICH. Thank you very much. I would like to find 

out what kind of procedures are in place. When UMRA passed, we 

established procedures requiring Federal agencies to consult with 

State and local governments to get their input on what impact it 

would have on State and local governments. Dr. Graham, is there 

some kind of procedure that is in each department that you monitor to make sure that they do try to get input from State and local 

government folks when they are doing these regulations? 

And second of all, is there consultation at all with the private 

sector on these regulations, to get their impression and get into the 

issue that you talked about, alternatives that are more reasonable? 

Mr. GRAHAM. Yes. Mr. Chairman, we have an annual report to 

Congress on the Unfunded Mandates Act that includes a summary 

of the consultation activities that different Federal agencies are undertaking to make sure that State and local governments have an 

opportunity to interact, and my characterization of that report is 

that there are some really good examples of consultation that are 

documented in that report at the Department of Education, the Environmental Protection Agency and so forth, but I think it would 

be fair to say that those best practices are not necessarily uniform 

across the Federal Government or across any particular agency. We 

oftentimes, at OMB, hear concerns on a particular regulation, that 

either the State and local governments had not been adequately 

consulted or the private sector had not been adequately consulted. 

That is why we at OMB have an open-door policy for outside 

groups to come in and talk to us about their concerns about regulations and unfunded mandates. 

Senator VOINOVICH. I recall that when I was governor we lobbied 

and had passed a provision dealing with the Clean Water Act that 

basically said that you had to use cost benefit analysis and regulations in regard to that Act at the time. We were requiring local 

governments every 3 years to take on 25 new pollutants to check 

to see whether or not they were in their water or not, and we required them to do the most advanced technology in terms of cleaning water. We went to work on that. Are you familiar with what 

I am talking about? 

Mr. GRAHAM. Generally. I do not know the specific example 

though. 

Senator VOINOVICH. I ask because, at the time we were interested in including a cost benefit analysis, peer review and good 

science, and then you would then also be required to look at alternatives. So that is the Clean Water Act. 

17

When I came to Congress, my first 2 years here I tried to get legislation passed that did the same thing with the Clean Air Act. Unfortunately, so many members mistakenly thought that I was trying to eviscerate the Clean Air Act, and we never got back to it. 

I would really like you to know whether the amendments that we 

made in the Clean Water Act have made it any different in terms 

of their regulations as contrasted to legislation dealing with the 

Clean Air Act. Could you look into that for me? 

Mr. GRAHAM. Yes, sir. I am familiar under the Safe Drinking 

Water Act, which was passed—the amendments of 1996, where 

there were cost benefit and sound science requirements. 

Senator VOINOVICH. Yes. I mischaracterized that. 

Mr. GRAHAM. I just wanted to make sure we——

Senator VOINOVICH. That is exactly what I am talking about, yes. 

Mr. GRAHAM [continuing]. Were talking about the same provisions. 

Senator VOINOVICH. Yes. 

Mr. GRAHAM. And I want you to know that we believe they have 

made a significant difference, and in fact, in this Administration 

we have taken the basic approach that was in the Safe Drinking 

Water Act amendments on cost benefit and sound science, and incorporated it in government wide guidance under the Information 

Quality Act, where we require all Federal agencies, regardless of 

whether it is an environmental regulation or a labor regulation, to 

have the replicable science and an appropriate peer review process 

on that science. And we already have requirements in executive 

order to look at alternatives, less costly alternatives. Quite frankly, 

that is the bread and butter of the work of the Office of Information and Regulatory Affairs. 

But having said that, I want to emphasize the fact that if Congress, when they pass a statute like the Clean Air Act, says that 

alternatives will not be considered or costs will not be considered, 

that really limits the ability of the Executive Branch to bring in the 

kind of tools you are talking about. 

Senator VOINOVICH. I would like to really look at what you have 

done with the 1996 Safe Drinking Water Act, and to ascertain 

whether or not as a result of the cost benefit provisions and the 

other provisions that I mentioned, that serious damage has been 

done to the safe drinking water in our country, because I really 

think that at this stage of the game we should review and look at 

our Clean Air legislation in terms of cost benefit. 

For example, I was just blown away when I met with the head 

of our EPA about the new requirements under the ambient air 

standards that were litigated. I will finish on this note. He basically told me—you would be interested in this, Senator Carper, because you and I have been working on this issue—he said that in 

spite of if we pass Clear Skies, the care rule and the other rules, 

that all of the businesses in my State that are in counties that are 

not complying with the current rules, that all of the businesses 

there are going to, in terms of if there is any new emissions, are 

going to have the install enormous—spent an enormous amount of 

money installing those particular things to do with their emissions, 

as they move toward compliance with the ambient air standards. 

And that in many instances, some of the counties would absolutely 

18

not be able to comply with that within a 5-year period, or if they 

did, the cost would just be astronomical. 

I was really shocked at that because I got the impression that 

if we passed Clear Skies and the new regulations dealing with diesel fuel, that these counties would be considered to be in compliance with, in an attainment because the big burden was going to 

be put on the utilities, and we were cleaning up our diesel gasoline. 

So this thing is going to cost a lot of money. I want to tell your 

State and local government folks out here, you have no idea what 

this is going to do in terms of the counties that you represent that 

are not achieving these ambient air standards. 

Senator Carper. 

Senator CARPER. Thank you. A couple of questions if I could of 

Ms. Williams, please. There are a number of ways that we could 

broaden the 1995 Act’s coverage to include more laws or more regulations that are considered here in Washington on a day-to-day 

basis. Among those that you have talked to, what approaches were 

most popular? 

Ms. WILLIAMS. They really broke out into two categories. One 

would be the provisions that deal with procedural changes, acts 

that are included, for example, in appropriations bills or rules that 

are issued by independent agencies. Under UMRA those are currently excluded from UMRA coverage. So those are two examples 

of procedural changes that could be made to broaden coverage 

under UMRA. 

The parties also mentioned looking at some of the definitions in 

UMRA and revisiting certain specific exclusions. I think CBO mentioned conditions of Federal financial assistance as one possible 

area that could be looked at that is an exclusion under UMRA that 

could be revisited. 

Senator CARPER. You point out in your report that some stakeholders you spoke to actually like the narrow scope of the bill, the 

Act? 

Ms. WILLIAMS. Yes. 

Senator CARPER. And do not favor broadening it. What reasons 

did they give for continuing with the current limits that are placed 

on these kinds of laws and regulations? 

Ms. WILLIAMS. They varied. Some parties felt that the strength 

of UMRA in its narrow coverage is that it does not try to be more 

than it needs to be. Some also felt that because the scope is narrow, when a provision does meet the threshold for a Federal mandate under UMRA it results in a significant red flag, so when this 

happens it is a big enough issue that people take notice and they 

are willing to negotiate and make adjustments. If the Act is broadened, then it may decrease the effectiveness of the red flag if more 

red flags are constantly going up. 

Senator CARPER. Dr. Robinson, my question to you would be how 

often do the enforcement mechanisms that are part of the 1995 Act 

ever encourage the lawmakers, guys like us, to modify our proposals? That is the first part of the question. And second, would 

this change if they were strengthened in some way? 

Ms. ROBINSON. Well, the first part of your question is actually 

pretty hard to quantify because although we transmitted 5,200 formal estimates, many of those were preceded by informal consultaVerDate 0ct 09 2002 14:24 Aug 08, 2005 Jkt 021429 PO 00000 Frm 00024 Fmt 6633 Sfmt 6601 C:\DOCS\21429.TXT SAFFAIRS PsN: PHOGAN
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tions with members and their staff asking whether or not their specific provision was going to cause a mandate. And we have 

seen——

Senator CARPER. Did the lawmakers initiate those inquiries or 

their staffs? 

Ms. ROBINSON. Yes. They will bring the legislation to us, the 

draft legislation to us, and then we have to work with it. 

Senator CARPER. And that occurs in you say the majority of 

cases? 

Ms. ROBINSON. No, I would not say the majority of cases, but I 

would say that before we actually do an estimate of a major bill, 

we oftentimes have done an informal consultation and in terms of 

time, effort, and feedback that we give to committees that work 

often swamps the final estimates when we are looking at the formal legislation. And we see routinely that members are concerned 

that when we raise a flag, they want to approach that and consider 

whether or not it is worth it in their whole scheme of getting the 

legislation through. 

The House has brought up points of order in its considerations. 

The Senate has considered bringing up points of order, but I don’t 

think it ever actually has. So that is an example where there was 

a flag raised and before there was even a vote there were negotiations to avoid imposing a mandate. So, yes, I think that we do see 

quite a lot of legislative movement around these issues. 

And then your second question was? 

Senator CARPER. Would this change if these mechanisms were 

strengthened in any way? 

Ms. ROBINSON. I think that is hard to tell. I think that there is 

a benefit of having a rigorous definition that people understand so 

that they understand across bills what ‘‘mandate’’ means. If that 

were to be expanded in a number of the ways GAO has talked 

about and people became used to that information and could use 

it, I think that the more information routinely is better. The more 

estimates that people can understand and compare to other 

versions of bills that are addressing the same issue, the better. 

Analysis like that does help. 

So in terms of the effectiveness and the red flags, it is a little 

hard to—it is one of these things like estimating cost under UMRA. 

It is like saying, OK, what is actually going to happen 5 years from 

now once the new regime is in place, and how are people going to 

be acting then? 

I do firmly believe, however, that more information is better. 

Senator CARPER. Thanks. 

Dr. Graham mentioned there are three solutions I think to the 

unfunded mandate dilemma. And first, he said fund them, which 

could get to be expensive; and second, I think he said reject the unfunded mandates. I think the third he said was find less costly 

ways of achieving the purpose or the objective of the unfunded 

mandates. Is that a fair characterization? 

Mr. GRAHAM. Yes, sir. 

Senator CARPER. Let me just ask Dr. Robinson and Ms. Williams, 

is that pretty much the universe of alternatives that we face? Are 

there others that we ought to be mindful of? 

20

Ms. WILLIAMS. I think if you look at the information we collected 

from the parties, they generally more or less break out into those 

broad categories, and I think all of them need to be on the table 

and part of the debate as you go forward. I would also imagine 

there probably is a fourth alternative if you talk to the parties and 

reach for it. 

Senator CARPER. Dr. Robinson. 

Ms. ROBINSON. This is also a serious case of it depends. It really 

does depend on the mandate in question whether or not you need 

States and localities and the private sector to be putting forth their 

own resources in order to effectively administer the mandate. That 

is always a serious question, and sometimes there is not an option 

to do nothing. That information exists about issues that the legislation is addressing. Congress has made that determination, so at 

that point their question is, how are we going to do it, and whether 

or not it involves a mandate. 

I am sure that is the universe. It is almost tautological to say 

it is the universe, and I think it is. But the choice of alternatives 

depends on the mandate in question. 

Senator CARPER. Thanks. My thanks to each of you. 

Senator VOINOVICH. If there are no further questions, we would 

like to thank you very much for being here today, and there will 

be some questions from the Members of this Subcommittee in writing, and we would appreciate your responding to them. We will 

leave the record open for that. 

And again, this has been quite illuminating, and I will be working with Senator Carper to see if there are some things that we can 

do to improve upon this legislation or decide to let it continue to 

go as it is. 

Thank you very much. 

Mr. GRAHAM. Thank you. 

Ms. WILLIAMS. Thank you. 

Ms. ROBINSON. Thank you. 

Senator VOINOVICH. Dr. Graham, if you could do that for me, I 

would be grateful, on the safe Drinking Water. 

Mr. GRAHAM. We will look into it. 

Senator VOINOVICH. Thank you. 

We will get started with our second panel. We have with us 

today Delegate John Hurson from Montgomery County, Maryland, 

who is testifying here on behalf of the National Conference of State 

Legislatures. We are very glad that you are here today. 

Commissioner Colleen Landkamer from Blue Earth County, Minnesota, representing the National Association of Counties, NACO. 

And Council Member Nick Licata from Seattle, Washington, representing the National League of Cities. 

We thank you both for being here, and Mr. Licata for coming a 

long distance to testify here today. As I mentioned to the other witnesses, we would like you, if possible, to limit your testimony to 5 

minutes. Be assured that your testimony will be in the record. We 

will proceed with Delegate Hurson. 

Senator CARPER. Mr. Chairman, before you proceed, as you all 

know, we have a number of hearings that are going on at the same 

time. We have a hearing in my Banking Committee on Terrorism 

Risk Reinsurance, and I am going to have to slip out in just a moVerDate 0ct 09 2002 14:24 Aug 08, 2005 Jkt 021429 PO 00000 Frm 00026 Fmt 6633 Sfmt 6601 C:\DOCS\21429.TXT SAFFAIRS PsN: PHOGAN
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1The prepared statement of Mr. Hurson appears in the Appendix on page 00. 

ment. I apologize for that. We have not figured out how to clone 

us yet and we are still looking. [Laughter.] 

Thank you. Thanks for being here. 

Senator VOINOVICH. I would just like to explain to the witnesses 

too. This is a Subcommittee hearing. It is a subject that I am very 

interested in, and so is Senator Carper and so are the Members of 

the Subcommittee. But you ought to know that I could be at three 

different places right now and justify my presence at each one of 

them. So it makes it difficult. I think one of our problems here in 

the Senate is a lot of us are very busy with lots of committees, and 

so often we like to be at hearings and we just cannot make them 

because in my case there are a couple other things that I could be 

at, but I am here, because I am the Chairman of the Subcommittee. 

My first year in the Senate, I was on five committees at the time, 

and we were trying to figure out how to be in four or five different 

places at once, and we created these cardboard cutouts of me, and 

we would position them at the different hearings. And it worked 

for a while, but people started saying I seemed stiff. [Laughter.] 

So we gave that up. 

I want to, I am sure on behalf of everyone here, to thank both 

of you for being here because UMRA is a very important subject 

and we want to thank you for paying as much attention as you do 

to it. 

TESTIMONY OF HON. JOHN HURSON,1 DELEGATE, MARYLAND 

HOUSE OF DELEGATES, AND PRESIDENT, NATIONAL CONFERENCE OF STATE LEGISLATURES 

Mr. HURSON. Chairman Voinovich, Senator Carper, I am John 

Hurson, President of the National Conference of State Legislatures 

and a member of the Maryland House of Delegates. I appear before 

you on behalf of NCSL, a bipartisan organization representing the 

50 State legislatures and the legislatures of our Nation’s commonwealths, territories, possessions and the District of Columbia. 

Thank you for the opportunity to testify before you today about 

UMRA. Thank you, Mr. Chairman, for your efforts and leadership 

as Governor of Ohio that helped UMRA become a reality a decade 

ago and for your continued commitment in the U.S. Senate to review how it is working. 

My presentation today will highlight the effectiveness and limitations of UMRA, the impact of those limitations on State budgets 

and the need for substantive and technical changes to UMRA. I 

would like to request that a copy of NCSL’s March 10, 2005 Mandate Monitor be submitted for the record to accompany my testimony. 

Senator VOINOVICH. Without objection. 

Mr. HURSON. NCSL applauds the success of UMRA and the work 

of the Congressional Budget Office in particular in bringing attention to the fiscal effects of Federal legislation on State and local 

governments, improving Federal accountability and enhancing consultation. 

22

1The CBO’s report entitled ‘‘A Review fo CBO’s Activities in 2004 Under the Unfunded Mandates Reform Act,’’ March 2005, appears in the Appendix on page 00. 

CBO’s recent report which identifies five laws that crossed 

UMRA’s threshold speaks loudly for its effectiveness.1 The hundreds of fiscal analyses completed by CBO show a commitment to 

carry out the spirit and letter of the law. Both of these facts, however, mask some of the statute’s shortcomings that NCSL urges 

you to address. 

UMRA is limited, and I believe the GAO’s May 2004 report to 

you concluded the same thing. As a result, much is slipping under 

UMRA’s radar and intensifying pressures on State budgets. NCSL 

has identified a $51 billion cost shift in Federal funding to States 

for fiscal years 2004 and 2005 collectively. 

Senator VOINOVICH. Fifty-one billion? 

Mr. HURSON. Fifty-one billion, 5 percent of States’ general revenue funds annually. And the cost shift continues and will likely 

grow in fiscal year 2006. 

Mr. Chairman, legislators view mandates more expansively than 

UMRA’s definition. We believe there are mandates when the Federal Government, for instance, establishes direct Federal orders 

without sufficient funding to pay for their implementation, or establishes a new condition of grant aid, or reduces the Federal 

match rate or administrative funds available without a reduction 

in requirements. It may be a mandate to compel coverage of certain 

populations under a current program without providing full or adequate funding for this coverage, or a mandate occurs when we create under funded national expectations. 

To illustrate our concerns our written testimony provides examples of provisions contained in three bills enacted during the 108th 

Congress that were not considered intergovernmental mandates 

under UMRA, but did create significant cost shift to the States. 

This includes an excise tax on vaccines, under funding IDEA, the 

Individuals with Disabilities Education Act, and provisions in the 

Medicare prescription drug program. 

I would like to spend the remainder of my time, however, not focusing on the past, but on the future of UMRA. We seek your support to strengthen UMRA. This hearing, as well as the work of 

GAO, is an excellent start. We suggest that Members of this Subcommittee sit down with legislators, governors and county and city 

officials to develop broader protections to States and localities 

against these cost shifts. Specifically, NCSL encourages the Congress to examine the definitions of UMRA. Too many mandates are 

falling outside of UMRA’s review. 

The biggest example for our members is the No Child Left Behind Act. We believe Congress should revisit how UMRA treats entitlement and mandatory spending, in particular Medicaid. Most 

changes made on Capitol Hill to the Medicaid program—which I 

know in Maryland constitutes approximately 17 percent of State 

expenditures—affect State spending. The cost of these changes, direct or indirect, need to be recognized. States do not always have 

the flexibility to absorb these costs. 

Congress should establish greater Executive Branch consultation. 

CBO does a great job, but we do not receive the same level of conVerDate 0ct 09 2002 14:24 Aug 08, 2005 Jkt 021429 PO 00000 Frm 00028 Fmt 6633 Sfmt 6601 C:\DOCS\21429.TXT SAFFAIRS PsN: PHOGAN
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1The prepared statement of Ms. Landkamer appears in the Appendix on page 00. 

2The survey entitled ‘‘Unfunded Mandates: A Snapshot Survey,’’ March 2005, appears in the 

Appendix on page 00. 

sultation or information from Federal departments or the Joint 

Committee on Taxation. 

Congress should consider the cumulative impact of mandates and 

consider developing a look-back process. 

Congress should support Section 403 of the fiscal year 2006 Senate Budget resolutions, which strengthens the existing point of 

order against legislation imposing unfunded Federal mandates by 

requiring 60 votes to waive the point of order. 

Mr. Chairman, in closing I would like to add that NCSL remains 

steadfast in its resolve to work with Federal policymakers to reduce the Federal deficit and to maintain critical programs. Controlling the deficit is a daunting task involving difficult choices, many 

of which involve our intergovernmental partnership. 

We recognize that the pressures on the Federal budget promote 

a tendency to seek the accomplishment of national goals through 

Federal mandates on State and local governments. However, NCSL 

is encouraged that you and other Federal lawmakers have recognized the difficulties posed by the cost shifts to States, and we look 

forward to working with you on this important issue. 

Thank you for the opportunity to testify and I would be happy 

to answer any questions. 

Senator VOINOVICH. Thank you very much. It was great testimony. 

Mr. HURSON. Thank you. 

Senator VOINOVICH. Commissioner Landkamer. 

TESTIMONY OF HON. COLLEEN LANDKAMER,1 COMMISSIONER, BLUE EARTH COUNTY, MINNESOTA, AND FIRST 

VICE PRESIDENT, NATIONAL ASSOCIATION OF COUNTIES 

Ms. LANDKAMER. Chairman Voinovich, I want to thank you for 

the leadership you have shown on this. You are really making a 

difference on such a critical important issue. 

I am Colleen Landkamer. I am a County Commissioner from 

Blue Earth County, Minnesota, and I am proud to serve as First 

Vice President of the National Association of Counties and to testify before you today on our decade of experience with Unfunded 

Mandates Reform Act. 

I would like to submit for the record a copy of a recent snapshot 

survey on unfunded mandates that was conducted by the National 

Association of Counties.2 This survey includes information that in 

Blue Earth County, Minnesota over the past 3 years, it shows that 

we have spent the following for every family of four. For every family of four we have spent $8 to comply with the Americans with 

Disabilities Act, and another $8 for the Help America Vote Act. For 

every family of four we have spent $3 to comply with the Health 

Insurance Portability and Accountability Act. For every family of 

four we have spent $11 under the Resource Conservation and Recovery Act, and for every family of four we have spent more than 

$26 to comply with the Clean Water Act and the Safe Drinking 

Water Act. 

24

Now, this may not be too much to spend to ensure that our public buildings and transportation systems are accessible, or to purchase new voting equipment, or to ensure the privacy of health information or safe drinking water. However, the costs continue to 

add up. If the examples highlighted in this survey are extrapolated 

across the entire Nation, then counties have spent at least $40 billion since fiscal year 2003 to comply with just a few major unfunded mandates, and far more than that, to comply with all of the 

Federal mandates. 

Mr. Chairman, I was with you in the Rose Garden when the Unfunded Mandate Reform Act was signed into law. We applauded it 

then and we still do today. Unfortunately, many of the unfunded 

mandates continue to be enacted without heightened scrutiny. The 

following 10 loopholes in the Act are explained in further detail in 

my written testimony, but let me briefly go through the 10. 

First. It identifies only the anticipated cost of proposed new mandates, not the actual cost. 

Second. It dismisses the cost of mandates that enforce a constitutional right and provide for the national security. For example, 

counties administer elections and ensure the safety of our citizens. 

However, the importance of these responsibilities should not get 

the Federal Government off the hook in paying its share. 

Third. It excludes grant conditions, even though local governments rarely have the chance to opt out. 

Fourth. It does not address the costs that State and local governments bear because the Federal Government has failed to address 

a national problem such as uncompensated health care, the costs 

of which are skyrocketing. 

Fifth. Agencies have inconsistent interpretations of their responsibilities under the Act. 

Sixth. It does not apply to mandates on an appropriations bill or 

rules that are issued by an independent agency. 

Seventh. Congress can satisfy the Act by authorizing funds for a 

program even if these funds are not appropriated. 

Eighth. It excludes Federal legislation that indirectly reduces 

State and local tax bases or drives up costs. 

Ninth. A mandate that costs a single jurisdiction tens of millions 

of dollars would still be considered de minimis if it fails to meet 

the nationwide threshold specified by the Act. 

Tenth. It is not surprising that the unfunded mandate point of 

order has never been raised in the Senate since it only takes 50 

votes to override. We support the provision of the Senate budget 

resolution that would increase this threshold to 60, and view it as 

a first step toward strengthening the Act. 

I would like to highlight one mandate that is creating challenges 

for my county, Blue Earth County, and counties across this Nation. 

The Help America Vote Act requires counties to purchase new voting equipment by the end of this year. The Federal Government 

was supposed to issue standards for this equipment 2 years ago, 

and has not, leaving counties uncertain about when we will be able 

to comply. 

Now, counties are committed to guaranteeing access to the polls 

and ensuring the integrity of the vote, and to make certain that we 

are purchasing the right equipment, it is critical for the Federal 

25

1The prepared statement of Mr. Licata appears in the Appendix on page 00. 

Government to release those standards and give counties more 

time to meet those deadlines. The deadline is the 1st of January 

and there is not enough time. 

Mr. Chairman, I thank you for the opportunity to share the 

views of the National Association of Counties. I look forward to 

working with you to strengthen and close loopholes in the Unfunded Mandates Reform Act. 

This concludes my testimony and I am ready to answer questions. Thank you. 

Senator VOINOVICH. Thank you very much. Mr. Licata. 

TESTIMONY OF HON. NICK LICATA,1 CITY COUNCIL MEMBER, 

SEATTLE, WASHINGTON, ON BEHALF OF THE NATIONAL 

LEAGUE OF CITIES 

Mr. LICATA. Thank you, Chairman Voinovich and Senator 

Coburn, for the opportunity to speak to you today. I am Nick 

Licata, a City Council member from Seattle, Washington, and I am 

here to testify on behalf of the National League of Cities about how 

federally funded mandates financially squeeze municipalities and 

often hinder our ability to provide services to our residents. Please 

note that my extensive written remarks have been submitted for 

inclusion in the Congressional Record. 

Before I begin my remarks, I would also like to thank the Senator from Ohio for examining unfunded mandates and, in particular, for requesting the GAO study of the Unfunded Mandates 

Reform Act. 

Now, as early as 1991, NLC adopted as policy the position that 

Federal mandates that imposed direct costs must be accompanied 

by adequate Federal funding. Local governments nationwide recognized the passage of the Unfunded Mandates Reform Act, UMRA, 

in 1995 the key partnership tool with the Federal Government. 

Ten years later, America’s cities and towns are financially burdened by unfunded mandates and preemptions of State or local authority in some form. Some quick examples are the No Child Left 

Behind Act, Individuals with Disabilities Education Act, Federal 

tax reform, Internet tax, and environmental regulations. 

As recently as last night, the House Committee on Energy and 

Commerce voted to pass a multi-billion unfunded mandate to local 

governments. It did that when it rejected an amendment to strike 

a provision from the energy bill forcing local governments to clean 

up water contaminated by the gas additive MTBE. In the last Congress, there were also legislative proposals to require local governments to enforce civil immigration laws, essentially a Federal function, or risk the denial of reimbursement from the Federal Government. 

Now, let me share with you what is happening in Seattle as a 

result of homeland security, which has the unintended consequence 

of an unfunded mandate. Our taxpayers and public utility ratepayers have picked up more than half the costs emanating from 

homeland security mandates and guidelines. Since September 11, 

2001, they have paid out close to $46 million, or 53 percent of the 

total costs. I am prepared to answer in detail the findings of a reVerDate 0ct 09 2002 14:24 Aug 08, 2005 Jkt 021429 PO 00000 Frm 00031 Fmt 6633 Sfmt 6601 C:\DOCS\21429.TXT SAFFAIRS PsN: PHOGAN
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port prepared by our city auditor, and this document is included in 

Appendix A of this testimony. And I believe this is the first and 

maybe the only concluded study of homeland security unfunded 

mandate costs in municipalities across the country. 

Briefly, there are three factors that contribute to the federally 

unfunded homeland security costs. They are as follows: 

In order to adequately protect our citizens, the city complies with 

the post-September 11 guidelines from the Federal Government, 

regulatory agencies, and professional organizations. There are no 

Federal grants available to cover these costs. 

Second, in order to provide our heightened security measures, additional ongoing staffing for homeland security must be hired. Seattle has spent close to $18 million since September 11 for which 

there were no Federal grants available. 

And, third, in order to conduct vulnerability assessments of our 

city’s operations and critical infrastructure, eight of our city departments indicated they have unmet infrastructure needs because the 

grants from Federal agencies, including the Department of Homeland Security and the Environmental Protection Agency, restrict 

the city’s flexibility. 

Please keep in mind that during this time Seattle has spent an 

additional $46 million unexpected security costs since September 

11, we have cut our local budget by over $100 million due to the 

downturn in the national economy. As a result, services have been 

reduced to our residents. And Seattle is not alone in this situation. 

I have attended a number of NLC meetings and talked to representatives from municipalities across the country, and the same 

story is repeated again and again in city after city. 

I and other municipal elected officials believe that the GAO, the 

CBO, and other reports have confirmed that the financial threshold 

exemptions under UMRA disguise an accurate assessment of unfunded mandates. And let me conclude by identifying four NLC 

proposals for addressing this problem. 

Amend UMRA to increase to 60 the number of Senate votes it 

takes to enact legislation that imposes unfunded Federal mandates. 

The State and Local Government Association sent a letter to the 

conferencees on the budget resolution supporting a supermajority 

in the U.S. Senate to override an unfunded mandate point of order. 

Second, Congress should not allow any Federal statutes to preempt a local law unless the Federal law specifically states there is 

such a conflict. 

Third, Congress should reconsider the threshold amount established in UMRA. While the $50 million threshold, adjusted for inflation annually, may seem low by Congress’ estimate, its cumulative effect damages the fiscal health of our municipalities. 

And, last, NLC would like Congress to enact clear and unequivocal language that mandates that Federal agencies consult with 

State, local municipalities, and local government officials in the development of the proposed rules. 

Thank you for the opportunity to testify. 

Senator VOINOVICH. Thank you very much. There seems to be a 

consensus here among the witnesses about the state of unfunded 

mandates relief legislation. [Laughter.] 

27

And before I forget, I would challenge the organizations to get together and come back to me and this Subcommittee with a consensus on what it is that you folks think we need to get done. And 

I assure you that if you do that, all of you—in other words, I know 

that the National Governors’ Association wanted to be here. They 

are not here. They are very interested in this issue. The U.S. Conference of Mayors I know is very interested in this. I have talked 

to Mayor Plasquellic. He is very interested in this. And I think it 

would be really good if you put together a little task force and sat 

down and you got your respective reports and just see how they 

kind of coincide with each other, and then come back here with 

your priorities in terms of what things you think are going to make 

the most difference in terms of our improving this legislation. 

Which leads to my first question: What is it you think would be the 

No. 1 issue that we need to deal with? 

I am pleased the budget includes a program to reverse the point 

of order. I applaud that provision of the bill. However, some of us 

are going to have some other problems with the budget. But I can 

tell you that the budget enforcement mechanisms that I worked 

very hard to get into that budget, plus Senator Gregg’s going along 

with the 60 votes, are very important things to me and will come 

into my consideration when they finally get out of conference committee. 

So who wants to start? 

Mr. LICATA. Well, I will jump in and say that the $50 million 

threshold, I think, is one of the critical elements. That is in our estimation too high and that we need to lower that threshold. 

Also, communication is critical. The Federal agencies need to talk 

to local officials about these rules. Without the communication, 

often we are in the dark, and we only find out at the last moment. 

Senator VOINOVICH. You heard me ask the question of John 

Graham about what procedure is in place to get the input of State 

and local governments, and I saw some heads out there saying they 

did not agree. So your opinion is that in terms of regulations dealing with State and local governments, there is no procedure in 

some of these agencies to sit down and talk to you about the impact 

it is going to have? 

Mr. LICATA. Inconsistent and inadequate would be our experience. 

Mr. HURSON. I would echo that. I think that was a very good 

question, Mr. Chairman. While CBO in particular has been excellent in trying to work in terms of consultation, in general it is sporadic. And I think that sort of came through in the answer in terms 

of what kind of treatment we get from agencies in terms of consultation. That is a very important and significant point. 

Senator VOINOVICH. OK. What else? 

Ms. LANDKAMER. It is significant. There is no doubt about that. 

And I think it is critical for us to come back to you and talk about 

priorities, and we would love to do that. 

Mr. HURSON. I am sure that NCSL will be committed to doing 

that kind of task force. I think it is an excellent idea. 

The one thing I would highlight is the first thing we mentioned. 

We do think there are some definitional problems. We are not getting all of the things we need covered by UMRA. Things are slipVerDate 0ct 09 2002 14:24 Aug 08, 2005 Jkt 021429 PO 00000 Frm 00033 Fmt 6633 Sfmt 6601 C:\DOCS\21429.TXT SAFFAIRS PsN: PHOGAN
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ping underneath the definitions, and we need to tighten the definitions up in such a way that we truly do get at some of these unfunded mandates. Particularly for States, Medicaid is the Pac-Man 

of all these budgets. It is eating us alive. It is eating the Federal 

Government alive. It is eating State budgets alive. And very small 

changes in Medicaid requirements have huge effects upon State 

budgets, and we do not have the flexibility to absorb the costs because of balanced budget requirements. 

And again, it is a definitional issue, and I think if we tightened 

up some of the definitions, we would be well on our way to reforming UMRA in a good way. 

Senator VOINOVICH. Again, in the definition area, I know when 

we passed UMRA initially, there was a lot of debate about the definition. But it’s been 10 years now, and we can go back and say, 

here is what has happened because certain things were excluded 

or were not included. 

Mr. HURSON. It is a good time to review it. It really is. 

Ms. LANDKAMER. I agree with everything my colleagues have 

said, and I do think the lookback is critical to see what works, 

what the definitions are, and actually what the cost of mandates 

have been, because I don’t think we have looked at that. 

Senator VOINOVICH. Senator Coburn. 

OPENING STATEMENT OF SENATOR COBURN 

Senator COBURN. Well, I would make note that we just passed 

out of Committee S. 21, which should offer, especially Seattle, some 

leverage in terms of homeland security and more of the requirement for it to be on needs-based, risk-based, rather than just on 

population-based granting. And I think you are going to be pleased 

with that. We will see how the appropriators do with that, but it 

is our hope that bill will get through both the Senate and the 

House and get some common sense into the funding. 

My experience from the people I have dealt with in Oklahoma, 

it is not that there is minimal consultation. Most of the time there 

is no consultation from the Federal Government. And when you 

find out what the rules are, it is when they are published in the 

Federal Register, and you have 30 days to try to mobilize and to 

change those. 

And I would just tell you that I would tend to agree with what 

you said. I would apologize for not being here. I am trying to shuffle between three committees today. But common sense is the thing 

that is lacking. It looks good up here, but you have to remember 

this is a very small, hollow network that does not rely on common 

sense and does not see the results of things that are put out. 

So I look forward to working with the Chairman on that. I look 

forward to going through this to see what the GAO has said and 

understand that and try to change it. 

I think the threshold problem is more difficult than the definitional problem for us in Congress, because I think Federal agencies 

can get around the threshold problem, but I do not think they will 

be able to get around the definitional problems. And if we can 

tighten those up, I think they would be great. 

29

With that, I guess I don’t really have any questions other than 

to say I am sorry we have not done our job to make sure you can 

do your job. 

Mr. LICATA. I would like to thank Senator Coburn and others for 

the S. 21 bill. We really do appreciate the emphasis on threat regarding homeland security, and I hope there is successful passage 

of that legislation. 

I again want to thank Chairman Voinovich and the other Senators for their concern about this issue. I think we will take up 

your challenge to get together and come back to you with some 

solid proposals that we can all work together on and do something 

about this problem. 

Senator COBURN. Could I address Medicaid again? 

Senator VOINOVICH. Certainly. I have some more questions, too. 

Senator COBURN. I just think the points you raised on Medicaid 

is the prime example, and we need total reform in Medicaid. But 

we do not need to reform it just here. We need the input of the 

States as we make this a more flexible problem for the States to 

decide how they care for the people in their State. It is different 

in every State; the requirements and the needs are different. And 

one of the things I am going to be working on is to try to do that 

over the next couple of years, at least build a consensus in terms 

of reforming Medicaid so that it is more flexible, so that you have 

the ability to really do what you want to do in the State to help 

those that are depending on us. 

Senator VOINOVICH. On the Medicaid issue, I have a little difference of opinion than some of my colleagues. I voted against the 

amendment to create the commission to study it because I felt that 

what we were doing was limiting the increase of Medicaid over the 

next 5-year period. And I was assured by the former Governor of 

Utah, Mike Leavitt, that he was negotiating with your respective 

organizations on five major flexibilities that would give you some 

things that we asked him to do when I was governor of the State 

of Ohio. 

Mr. HURSON. Well, Secretary Leavitt actually is meeting with us 

tomorrow on just those issues. He is speaking at NCSL’s Spring 

Forum here in Washington. So, yes, we are working with him on 

all kinds of Medicaid reform. 

Senator VOINOVICH. But I think that former Governor Leavitt 

gets it. I know one of the things that I had in our State when we 

reformed Medicaid, I wanted to charge a fee for Medicaid, and they 

said you cannot do that. And there are a lot of small provisions 

there that we could do, and it is amazing that a lot of our health 

clinics throughout the State of Ohio today have a sliding scale. 

Somebody comes in, they find out what their income is, and there 

is a sliding scale and the recipients pay according to their ability. 

But you are hamstrung with so many of these regulations that you 

are getting money out of DC. 

Mr. HURSON. Mr. Chairman, that is absolutely true. In the State 

legislature I am the Chairman of our Health Committee, and I will 

tell you that we are looking very closely at what federally qualified 

health clinics can do and really using them more as a safety net. 

But the thing with Medicaid is that it is a partnership. We have 

to do this together. It is a situation where it has to be reformed. 

30

If we are ever going to solve the deficit at the Federal level, and 

in terms of the State budgets, it has got to be a partnership. But 

we know it has to be reformed. You talk about the clinics. They are 

the answer, in my opinion, about how we can go about creating a 

new system of health care that is not bound by all these rules and 

bound by all these controls, because what we are trying to do is get 

health services to people and not be bound by a lot of rules. I think 

we can find a way to do that in a much less expensive way if we 

work together. 

Senator COBURN. Mr. Chairman, just to roll on the Medicaid, 

right now Medicare and Medicaid dictate health care in America. 

Health care does not dictate Medicaid and Medicare. It is exactly 

backwards. We are going to spend $2.3 trillion this year in our 

economy—that is close to 18 percent of our GDP—on health care. 

That is 40 percent more than any Nation in the world does per capita. And one out of every three dollars we spend does not help one 

person get well. 

Certainly we can do it better, and if we do it better, we are going to free $700 billion a year to use in other areas, both at the State 

and the Federal level. And I am committed to see that happens. 

Now, that is a big task, but there is no prevention incentive for 

providers. We do not pay them for prevention. We pay them to 

treat acute disease and chronic disease. Prevention will save us 

tons. Half of Medicare and Medicaid spending in the year 2050 is 

going to be on diabetes alone. And diabetes today is a preventable 

disease, and yet there is no leadership at the Federal Government 

level in terms of prevention of that, and colon cancer and all these 

other diseases that we know are preventable. 

So I believe—and I hope through my Subcommittee and your 

Subcommittee that we are going to be able to discover some of the 

areas where we can change this. And it is a burden on the States, 

but it is not just a burden on the State Governments. It is a burden 

on every business in your State. 

Last month alone, 15,000 jobs were not created in this country 

because of the sole cost of health care insurance for individuals 

who would have been hired, many in Ohio, because they cannot afford that premium so, therefore, they do not add another person to 

the payroll even though they need it. 

Senator VOINOVICH. I agree with you 100 percent, Senator 

Coburn. I recall when I was governor we did really well with job 

creation and, in fact, Ohio led the country in new facilities and 

plant expansions. But my governor today is contending with some 

things that I did not have to contend with: Escalating health care 

costs that are just driving businesses away. Natural gas costs have 

escalated substantially, and you are all feeling it on the local level. 

This litigation tornado that is cutting through our society is raising 

our costs. The competition with China today in terms of their currency and intellectual property rights. I mean, there are a number 

of things that impact on your local lives. People in the State are 

saying, well, governor, take care of it. Governor Taft in Ohio, I feel 

sorry for him. There are just too many factors beyond his control. 

He can change around the direction in IT jobs, biomedical and all 

other high-tech jobs. But on the basic things, if we do not do something on the national level on some of these issues, they are finVerDate 0ct 09 2002 14:24 Aug 08, 2005 Jkt 021429 PO 00000 Frm 00036 Fmt 6633 Sfmt 6601 C:\DOCS\21429.TXT SAFFAIRS PsN: PHOGAN
31

ished. We will see more and more jobs leave this country because 

of the fact that businesses can no longer compete because of our 

regulatory environment. 

As I mentioned, you ought to look at the new ambient air standards. No one is really getting it. I tried to get Clear Skies passed 

here, and I did not get the kind of support that I should have, I 

think, from State and local governments. And I said the reason 

why is because you do not get it yet. But when you get it, you are 

going to be really concerned about this because it is going to impact 

negatively on your ability to keep jobs, get businesses to expand, 

and get businesses to come into your communities. 

Senator COBURN. I would just add one comment. Almost 7 percent of the cost of health care today, 6.8 percent, is $130 billion 

worth of tests that doctors order every year that patients do not 

need but doctors need. And that is directly related to the tort system failure in this country. And we could lower the cost tomorrow 

by 7 percent, health care across the board in this country, if we 

just had malpractice reform in this country. 

Senator VOINOVICH. I would like to ask you a question about 

something specifically. Some of you said that we have not used 

UMRA, point of order in the Senate. But I was interested to hear 

testimony that, in fact, Senators, at least their staffs, check with 

CBO to find out whether or not this is an unfunded mandate or 

not and that legislation is changed because of it or amendments 

are made to try and alleviate that pressure on State and local governments. 

I will tell you that, without UMRA, we probably would not have 

been able to stop last year, with the help of your respective organizations, the Internet tax moratorium. And I just want to point out 

that the bill will expire in 2007. However, some States that are 

now turning high-speed Intenet access will lose their ability to do 

so this year. Fortunately, Ohio and Washington are grandfathered 

in and won’t lose that ability. But Michigan and Maryland will lose 

some revenue. Have you looked at this issue at all? 

Mr. HURSON. I cannot say that our State, but I know that NCSL 

is very active on this issue, as you know. But we actually list the 

ban as a mandate as well. 

Let me just make one quick comment that I think is important 

to State and local governments. This always happens when you 

have a problem, but UMRA has done a lot of good things. We think 

we are on the right road. The question now is reanalyzing it after 

10 years of experience and fixing things that may not have been 

what we expected to happen. But, generally speaking, it has been 

a very positive experience for our organization and for States that 

we have something in place that does the review. 

As I said in my testimony, we think CBO has done a really good 

job of making sure that a lot of laws are analyzed. So to be positive, we are going in the right direction. We just need to reform it. 

Senator VOINOVICH. Well, we look forward to your recommendations, and I am going to have my staff go through all the reports 

and come back to me with their recommendation on what their priorities are, and then what I will do is wait to see from you what 

you think they are. And let’s get the team together. We have not 

really worked on anything for a long time, but last year we got an 

32

Internet tax moratorium, and I have said to Mayor Plasquellic and 

I have said to other leaders of the organizations that you have unbelievable power. You have unbelievable power. If you all work together, prioritize your issues, and come to Congress on a bipartisan 

basis, you can move mountains. But each of your groups individually have great difficulty in doing that, and I think that is something that I want to underscore. This might be a great issue to get 

the team back together to talk about some other things that we 

ought to be working on together. 

I cannot do it here. Tom cannot do it over there. But, if we have 

a legislative proposal up here and you folks are lobbying for it together and on a bipartisan basis, you will move mountains. You 

will make a difference. 

So I am looking forward to working with you. Thank you very 

much. The hearing is adjourned. 

[Whereupon, at 11:45 a.m., the Subcommittee was adjourned.] 

(33)

A P P E N D I X 

PREPARED STATEMENT OF SENATOR LAUTENBERG 

Mr. Chairman, thank you for calling this hearing. 

When I arrived at the Senate 22 years ago, I discovered that my desk had once 

been used by Harry Truman. 

He has always been a hero to me because he wasn’t afraid to tackle a problem. 

He famously said, ‘‘The Buck Stops Here.’’

The Federal Government has been too quick to pass the buck to States and local 

governments in the form of unfunded mandates like the No Child Left Behind Act. 

This is wrong. 

Congress should not order State and local governments to provide programs without offering the resources to pay for them. 

But we must be clear about what rally constitutes an ‘‘unfunded mandate.’’

The Congressional Budget Office has determined that unfunded mandates include 

an increase of the minimum wage, user fees for customs, fees on tobacco products, 

and the Sarbanes-Oxley Corporate Reform Act. 

It’s one thing to say we shouldn’t order States to provide health insurance for 

their citizens without providing the resources to do it—or impose tough new requirements on schools without adequately funding them. 

But the idea that Congress should not be able to raise the minimum wage, or balance the budget, or force big companies to protect shareholders and consumers, I 

think is misguided. 

Mr. Chairman, these issues take on new urgency this year because if approved, 

this year’s budget would demand a new 60-vote point of order to pass an unfunded 

mandate. 

That means 60 votes to increase the minimum wage . . . 60 votes to discourage 

young people from smoking—60 votes to enforce corporate accounting standards. 

So I say to my colleagues: We need to be very careful about what we are doing 

here. 

Mr. Chairman, it isn’t just my priorities that would be endangered. Some on the 

other side are engaged in a misguided attempt to cut Medicaid, for example. Under 

current law, that could be an unfunded mandate as well. 

We should combat real unfunded mandates without hampering the Senate’s proper business.

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Æ


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