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All-American brawl; the title bout: Washington vs. the states for the right to rule your life
It used to be that only liberals demanded tough federal regulation. And only conservatives insisted that Washington not intrude on matters best left to the states. Not anymore. A little-noticed, but severe, outbreak of hypocrisy has overtaken national polities.
These days, it's Democrats who defend states' rights because states have the most fervent regulators; Republicans want rules written by conservative federal officials to override or pre-empt state regulations. This odd flip-flop might be merely a political curiosity if not for the fact that it directly affects everybody who eats fruits, vegetables or tuna fish, insures a car, a home or a life, needs a bank loan, has a pension plan, creates garbage, uses lawn chemicals or breathes air. All these areas are being reshaped by a host of regulatory battles between the states and Washington, D.C. State officials now fear that their ability to set environmental and consumer standards might be compromised by the upcoming round of trade talks recently sanctioned by Congress.
Though often framed in lofty rhetoric, this battle is not really about governing principles. Rather, it is driven by competing interest groups that advance their agendas by playing the states and Washington against each other. In the 1960s, it was the ruling liberals in Washington, impatient with state inaction on civil rights, health and the environment, who pushed federal regulations - despite vociferous complaints from conservatives and business leaders. In the 1980s, the Reagan administration, eager to help corporations, slowed federal regulation to a crawl.
But the Reagan plan backfired when liberal environmental and consumer groups persuaded Democratic-controlled state governments to reregulate. The result: dozens of new state laws on everything from auto warranties to indoor air pollution. in 1986, for instance, California voters passed Proposition 65, requiring disclosure of the negative health effects of some 470 different chemicals in products ranging from shoe polish to canned soup. By contrast, the federal government requires warnings for only a handful of chemicals. Potentially, industries face not only tougher regulations but 50 versions of the rules.
Look who loves Uncle Sam. Now, it is business leaders who want Uncle Sam to meddle in state affairs. State laws, they say, are "balkanizing" the U.S. market and must be nullified by the federal government for the sake of global competitiveness. That argument is getting a respectful hearing in Congress. Even the National Governors' Association has joined a conservative chorus calling for federal takeover of product-liability law. There are other major forces in industry's favor: The Constitution grants Congress the power to override a wide range of state laws and regulations, and Washington's elected officials politically owe less and less to state and local parties and groups - and more and more to industry groups and their contributions.
Still, liberals have weapons against efforts to undermine state regulations. The fights in coming months will include:
* Food. In the early Reagan years, food and chemical companies heaved a collective sigh of relief as the Environmental Protection Agency eased up on regulating agricultural pesticides. Their peace was soon broken, however, by the sound of state regulators scribbling away. California joined several other states in banning the suspected carcinogens EDB and Alar. That helped motivate industry to cooperate on several federal bills pending this summer that would toughen regulations on pesticides and revamp the licensing of chemicals (see following story). But industry lobbyists insist that the new laws must nullify state pesticide regulations. Meanwhile, environmental groups, their memories of the EPA's apostasy still fresh, want states to retain their regulatory powers.
There has been a similar food fight over what companies should or should not say about such things as the fat content of their products. The food industry fought off mandatory federal nutrition labeling until 1989, when three states considered passing their own labeling laws. Suddenly, the industry reversed itself and backed a nutrition bill in Congress - so long as it overrode all state laws. John Cady, president of the National Food Processors Association, began sounding like Ralph Nader: "The consumer across the country needs to be fully informed across the board."
The nutrition bill threw the Bush administration into some turmoil. Federalist advocates in the White House first thought they killed the plan, but then free marketeers, who care nothing for states' rights, eventually prevailed. The measure also drove consumer champions into a world-class turnabout. "We had not traditionally embraced the cause of states' rights," recalls Bruce Silverglade, legal director of Center for Science in the Public Interest. But consumer advocates quickly learned how to talk like Republicans. An internal position paper instructs members to use traditional conservative buzzwords like "federalism."
The Nutrition Labeling and Education Act, which the president signed last fall, was a muddled compromise, granting states some regulatory powers, denying them others. More labeling battles are underway over two bills, one requiring warning signs on chemically sprayed lawns, the other setting standards for using terms like "recyclable" on products.
* Insurance. For more than a century, insurers have perfected the art of "forum shopping" - endorsing the level of government that promises the lightest regulation. From 1865 until 1944, the industry pleaded for federal pre-emption of state regulations it regarded as too aggressive. When Washington finally considered regulating insurance by removing its exemption from antitrust laws, the industry had a sudden change of heart and pushed through the 1945 McCarran-Ferguson Act, protecting the exemption. ne industry's opposition to any federal role was neatly summed up by an insurance executive who told a federal investigator in 1979: "Would you rather be regulated by 50 monkeys or King Kong?"
But in the 1980s, the states stopped monkeying around. Many passed mandatory rate-rollback laws and demanded higher company contributions to state-chartered insolvency pools. Now the industry is shopping again. Trade groups such as the American Insurance Association say they are willing to discuss scaling back McCarran-Ferguson and letting Washington write national insolvency guidelines, actions Congress will consider this session. But according to Robert Hunter of the National Insurance Consumer Organization, industry lobbyists want something in return for their concessions: federal pre-emption of state rate regulatory power.
* Banks. State bank regulators have reason to worry about the Treasury Department's proposal to reorganize the bank regulatory system: If it becomes law, they may lose their jobs. The plan would pre-empt the power state regulators now have to control interstate branching by federally chartered banks.
The Bush administration argues that this will help U.S. banks compete internationally. But state officials contend that larger U.S. banks will gobble up smaller ones and use deposits to chase global investments rather than lend to local businesses. Kenneth Littlefield of the Conference of State Bank Supervisors calls the plan a "radical, unprecedented deregulation [that] totally ignores the potential impacts." Siding with the states are community activists who rely on state regulators to keep loans flowing to lower-income neighborhoods.
* Garbage. As the nation's landfills overflow, some states, especially in the Northeast, have taken to transporting their refuse to less populated states, primarily in the South and Midwest. The result is a pre-emption issue so confusing you need a score card.
Republican Sen. Dan Coats of Indiana, whose state is getting dumped on, is sponsoring a bill that would allow states to ban out-of-state trash. A states' rights conservative in the mold of Dan Quayle, whose old Senate seat he now occupies, Coats has some liberals in his camp. Among them: Indiana's Democratic Gov. Evan Bayh and environmental groups, which see bans as a way to promote recycling.
But Coats's ties to Quayle have not earned him White House support. The Bush administration sides with the waste-management industry in opposing the bill as an unwarranted obstacle to interstate commerce. New Jersey's Sen. Bill Bradley and Gov. James Florio - allies of environmentalists on other fronts - also oppose the Coats bill. It so happens that New Jersey is doing much of the interstate trash dumping.