The Reflecting Pool: April 17, 2009

Hope Over Experience: Part II

By Carl Tubbesing

When this column began exactly two years ago, I recalled Samuel Johnson's aphorism about second marriages and described the endeavor as a "triumph of hope over experience." I was trying to be self-deprecating and wry. What I was actually being was prophetic. One hope—actually it was a promise—was that The Reflecting Pool would "arrive on your cyberspace doorstep once every two weeks." Hmmm. Let's see. The very spacious Reflecting Pool archives contain 17 back issues; 104 weeks have elapsed since that first column; 104 divided by 17 is 6.12. First, second and third marriages have been annulled on more solid grounds.

There is not enough room in this space to list all of the flimsy excuses for this erratic publication schedule. My favorite has a Catch-22 quality. When things are busiest in our nation's capital—when there is the most to report on in this column—there isn't enough time to write. When things are quieter—something that doesn't happen very often anyway—there is less to write about.

It's spring, though. After three days of drizzle, the sun is rising over the Thurgood Marshall Building. The red buds are blooming. The dogwoods are close. The tulips are glorious. The St. Louis Cardinals are in first place and the Yankees aren't. A completely refurbished NCSL website debuts next month. It's the season, in other words, for hope and for renewing vows. Can this marriage be saved? Of course. Well, at least, we hope it can. Watch this space—once every two weeks—for further details.

No Good Deed Goes Unpunished

Aficionados of the American Recovery and Reinvestment Act know about Section 1607. That's the one that South Carolina Congressman James Clyburn added when his state's governor, Republican Mark Sanford, let the media know that he opposed the legislation and wouldn't or probably wouldn't or likely wouldn't or maybe wouldn't take the stimulus money once it passed. The South Carolina constitution calls for three branches of government and one of them—the legislature—has a not insignificant role in determining the state's budget. Clyburn, a Democrat, persuaded his colleagues to give state legislatures the option of accepting the stimulus money if the governor wouldn't. Deeds like that make some of us wish NCSL still made its annual Restoring the Balance award.

Although his intention was more than laudable, Clyburn's language—now Section 1607—is ambiguous and has raised numerous questions in several quarters. After we had received questions about the section from several legislative staff and legislators, NCSL Executive Director William Pound made a formal request for clarification to the Office of Management and Budget. Although OMB has not responded in writing, its staff have offered their interpretation of Section 1607 in two private meetings—an interpretation supportive of the legislature's role and consistent with Clyburn's intent. In March, the Congressional Research Service, the national equivalent of a nonpartisan state legislative council, released an analysis that is far less favorable for state legislatures. The memorandum, prepared in response to a request from South Carolina Senator Lindsey Graham, criticizes the language on many grounds, including its ambiguity and its constitutionality. The memorandum is vague about exactly what question Graham posed. But it would appear to this not entirely objective observer that the paper goes out of its way to raise objections. Its assertion that Section 1607 is a violation of the 10th Amendment seems especially spurious. Citing two relatively recent Supreme Court cases (New York v. United States and Printz v. United States), the analysis concludes that a state legislature would be commandeering local governments for a federal purpose if it directed them to accept federal funds. Remember that mid-term exam you took junior year in your local government course? "What is Dillon's Rule?" Do you remember your answer? Of course, you do, "Dillon's Rule is the doctrine that political subdivisions of a state owe their existence to grants of power from the state; and local governments hold no inherent sovereignty." And wouldn't you agree now that it would be difficult for a state legislature to commandeer something that has no powers other than what the legislature gives it in the first place?

Although the CRS paper raises legitimate concerns about separation of powers and suggests practical questions about how Section 1607 could be implemented, it ignores legislatures traditional power of the purse and the fact that most state legislatures have the authority in state statute to appropriate federal funds. In other words, it's not as if we are in uncharted waters here. As much as portions of the American Recovery and Reinvestment Act seem tilted toward gubernatorial authority, in most states decisions about allocating federal funds are shared between the legislature and the governor. Despite the attention the press has given to the posturing of a handful of governors, decisions about spending the recovery act money are being made through the normal give-and-take of state appropriations processes.

And, despite the public statements of the governors of South Carolina, Texas, Louisiana, and Alaska, all 50 governors certified their intention to request the stimulus
money, making the Clyburn amendment controversy moot or mute, at least for the moment.

Carl Tubbesing in the deputy executive director of NCSL.