Bush For States' Rights, but Not for Local Rule

"Shifting Of Power From Washington Is Seen Under Bush" -- New York Times, January 7,
"Across the spectrum of domestic policy issues, from health and welfare to education, transportation and environmental protection," reports Robert Pear of the Times, "the new administration promises to shift power from the federal government to the states, and state officials of both parties said they expected the promises to be kept."

I doubt it. When Washington speaks of devolution, it almost always means granting local governments more flexibility in complying with federal directives. That may be a step in the right direction, but it shouldn't be confused with granting local governments real policymaking authority. Indeed, when it comes to power, both Republicans and Democrats are centralists.

In the last 40 years, Republicans as well as Democrats in Washington have voted to increasingly restrain local and state authority. Intriguingly, a systematic study of roll call votes in the 98th through the 101st Congresses that actually found Republicans more prone than Democrats to overrule state and local regulations, according to Pietro S. Nivola of the Brookings Institution.

A genuine "devolutionist" is willing to let governments closest to the people enact measures governments further from the people oppose. As governor, Mr. Bush often declared "Texans can run Texas." If he truly believes that, he is now in the position to translate rhetoric into reality. By doing so, he would fundamentally change the entire national debate about government and governance.

Let me offer three actions George W. could immediately embrace that would signal his party' s new allegiance to local control.

1. Drop federal opposition to state medical marijuana initiatives. Eight states now allow the sick to use marijuana. In all but one (Hawaii, where the legislature passed the law), the law was adopted as a result of direct referendum. Clinton's administration refused to accept the will of the people. Instead, it has tried to strip of their medical licenses doctors who prescribe marijuana. Clinton's Justice Department continues to argue in federal courts (and now before the U.S. Supreme Court) that states lack the authority to enact such initiatives, no matter how popular they may be. President Bush would demonstrate the courage of his convictions by ordering his administration to cease standing in the way of this exercise in local democracy.

2. Ask Congress not to extend the current temporary federal moratorium on state and local taxation of purchases over the internet. Because of Congressional and Supreme Court actions, communities are prohibited from imposing the same sales taxes on purchases from out-of-state firms as they do on purchases from in-state firms. As a result many states are forced to discriminate against their homegrown businesses by giving out-of-state businesses a 6-8 percent price advantage. Both political parties supported this moratorium, which ends in October. George W. Bush should ask his party to honor the maxim "Texans can run Texas" and no longer force communities to treat remote businesses better than they treat local businesses.

3. Ask Congress to grant localities the authority to stop local cable companies from discriminating against local internet service providers. Communities currently do have the authority to give cable companies permission to serve their residents. But federal courts have ruled that communities lack the power to require that these companies offer residents a real choice in internet service providers. As a result, giant cable companies are discriminating in favor of their own internet service subsidiaries by charging local residents twice as much to sign up with a local service provider. In the last six months, three federal courts have overturned local access provisions by Portland, Oregon; Broward County, Florida; and Henrico County, Virginia. The courts insist that federal law preempts local authority in this area. George W. Bush should insist that the Republican Party introduce and enact legislation that lets communities decide whether the high speed information highways of the future should be open to all users on an equal basis.

Centralists will argue that giving communities such power would result in a dizzying array of local regulations. Genuine devolutionists would respond that there is at least as much danger in the one-size-fits-all policies that emanate from Washington.

There are times, of course, when federal preemption is necessary. Yet today, federal preemption is rapidly becoming the rule, not the exception. Both Republicans and Democrats seem to subscribe to the notion that the burden of proof should rest on those who would delegate authority, not on those who would centralize it. The rhetoric of the new Republican administration promises a dramatic change. George W. talks the talk. Let's see if he walks the walk.
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