Governor Michael O. Leavitt

Discussions of the founding principles of this country requires statesmanship and this morning I begin with an appeal that for the next 24 hours we set aside partisan affiliations. If this discussion is conducted in a framework of who's Republican and Democrat, our contribution will be meager. Likewise, these deliberations must rise above the immediate issues of today. Our topic is far more important than this year's budget or the provisions of a particular bill. We are here as leaders of the states in the United States of America. Our purpose is to begin an internal audit of our stewardship.

I would like to state clearly three things I believe. First, without a strong national government, the United States of America would fail. We are and must remain, "one nation under God, indivisible, with liberty and justice for all." Second, it is my view that the strength of our national government is found in its focused supremacy. Lastly, I believe our national government has been weakened by a well meaning expansion beyond its purpose and logical application. My purpose is to discuss our role as state leaders in reviving a strong, but limited national government.

Some months ago I had occasion to visit Governor Whitman in the New Jersey governor's mansion. As I waited in the library, I walked slowly around the room looking at the memorabilia and art. The manager of the house stepped to the door to tell me that Governor Whitman had been delayed for a moment. She could see I was admiring a small coffee table next to an overstuffed chair. It was obviously an antique and well crafted. The joints needed tightening but it remained elegant in its simple and straightforward design.

"James Madison made it," she said as she left me alone in the room.

I had been reading a book about James Madison, given to me, incidentally, by Governor Romer. And as I touched the wood of the table, inspected the smooth finish and looked upon Madison's personal inscription, I felt a deep respect for the man we call the Father of the Constitution. Indulging in a little fantasy, I thought what great insights he might offer about our country today if we could visit with him as he planed and sanded the wood.

When the table was built the colonies had just won their independence from the mother country. They were a new nation . . . born of bloody sacrifice in places like Lexington, Valley Forge, and Bunker Hill. The colonies had become independent states, loosely joined together, under a document called the Articles of Confederation. And while their hopes and aspirations were high, frankly . . . it was a mess. The national government was just too weak and it simply wasn't working. George Washington said the states were held together by a "rope of sand."

The country staggered under a sixty million dollar war debt. With no national tax system there was no means of repayment. Three different states were claiming part of Vermont. There was no national court system to resolve the disputes. Trade barriers and a fragmented monetary system strangled the economy. To foreign powers, this was no nation, just a group of small rebellious sovereigns not to be taken seriously. Something had to be done; the nation was floundering.

In May of 1787, a group of state legislators and citizens gathered in Philadelphia for a Constitutional Convention. With George Washington as chair, 55 delegates met for four hot, sweaty months behind closed doors. Their deliberations were the most important public policy discussions in the history of western civilization.

Two major issues emerged. First, balancing the interests of big states and small states. They resolved that with the Great Compromise. Two houses of Congress, one apportioned by population, the other by state.

The second issue was tougher and absolutely fundamental to the very existence of the republic. What would the relationship be between the states and the national government? Would this new government be dominated by states or would a centralized national government be superior, dictating to the states?

Most of the delegates knew the failings of a government dominated by states. They had seen firsthand what a misfire the Articles of Confederation had been. But having just won their freedom from tyranny, they were wary of turning the regulation of their lives, fortunes and families to a faraway central government.

This state/national issue brought the convention to the brink of collapse. At the last moment, a brilliant solution was produced. The delegates used the same commonsense approach my mother taught me.

I grew up in a family of six boys. It wasn't unusual for a couple of us to fight over the last piece of a dessert. So mother would say, "Mike, you cut the pie and, Dane, (my brother) you choose first." I would cut the pie with scalpel-like precision, knowing full well that if either of the pieces was bigger than the other, my brother would take it. Around home we called that method "Mothers Rules."

Mothers Rules created a near-perfect, self-enforcing equity. It was elegant in its simplicity, brutally fair and absolutely effective. (I have amused myself at times trying to imagine the volumes of regulations that federal bureaucrats could write on how to fairly split up a piece of pie.)

The Constitutional Convention delegates applied their own version of Mothers Rules. They created two governments. First, a national government with a list of explicit, delegated responsibilities. Things like national defense, foreign policy, interstate commerce, coining of money, and so forth. In those limited areas, the national government would be supreme. Limited, but supreme. All powers not given to the national government the overwhelming majority would remain with the states and the people.

"Limited, but supreme" vs. "all other powers" was the founders' version of Mothers Rules. If either the national or state government began to encroach on the other, or failed to perform, the founders believed, the other would immediately react and the "people would be protected." They expected the careful balance they created would be self-enforcing.

There were lots of skeptics. But like James Madison's woodwork, his brilliant constitutional craftsmanship has endured more than 200 years. The United States of America has prospered. This is the most powerful nation on earth. It has survived a civil war, conflicts with foreign powers and two centuries of dramatic change. Most important to us today, it is the ideal form of government for the Information Age of the new millennium.

What if my fantasy was realized and James Madison could somehow join us at this meeting today to do a brief audit of the founders' creation? Undoubtedly, he would have lots of questions for us, the stewards of the founders' legacy.

Madison's first question would likely be, "Are the checks and balances between the legislative branch, executive branch and judiciary working?"

Legislators in this room would complain about governors, and governors about legislators, and we'd all grumble about the courts. That would be all the answer Madison needed. The plan is working.

"What about big states and small states?"

"That's working too," would be our reply.

Then Madison's hard question. "We worked hard to balance the states and national government. What's happened since we left?"

A long awkward silence would ensue. "Well, . . . we have good news and bad news. The good news is . . . we still have both states and the national government. The bad news . . . you're not going to recognize them."

What would Madison say about the volumes of federal laws prescribing in great detail how every state, city, town, village and hamlet conducts the most uniquely local tasks?

What would he say to the staff assistants of assistant deputy under secretaries of federal departments who thinks their real job is to double as a state health director, chief of police, or local road superintendent?

How might he respond to see that, in the words of former Governor Bruce Babbitt, "we have allowed their creation a carefully layered construction of federal, state and local responsibilities to become scrambled into one great undifferentiated amorphous omelet by a cook in Washington?"

His response to all of this might just surprise us. Oh, he would not be at all happy about a federal government out of control, but his greatest disappointment would be with us, the leaders of states.

What would he say? I believe James Madison and the founders to a person would challenge us to meet our constitutional stewardship. "Stand up, states," they would say. "Do your jobs. You have abandoned your stewardship . . . given up your place at the constitutional table. You have left the people unprotected, not from tyrants or subversives, but from the natural consequences of unchecked power and political force without resistance."

As states, we have violated the law of political gravity by allowing federal power to be inadequately challenged. Power unchecked is power abused. Political force without competition unavoidably becomes a force uncontrolled. This is our role. This is our stewardship. For the protection of the people, we must stand up!"

My guess is, by this time, we might all be feeling a bit defensive. In our defense, of us might say, "We do stand up. We meet together at association meetings. We give speeches, write our congressional delegation letters asking them to quit doing all that stuff. We go to Congress and testify, lobby."

In my imagination I see James Madison jumping all over that one. "What do you mean, 'We lobby'? Are states now nothing more than lobbyists, special interest groups, supplicants? We didn't create a master-servant relationship. States are full constitutional partners in this republic. We left you with tools to ensure your proper place in a balanced system."

I can visualize Madison seizing on a teaching moment. "We gave the national government the 'Supremacy Clause." he would say. "That simply means that in its enumerated areas, the national government is 'King Kong.'" (He might have used another phrase.)

As counterbalance to the supremacy clause, the states were given four important tools:

Tool One: The Tenth Amendment. Before the states would ratify the Constitution, they demanded language spelling out that all powers not specifically delegated to the national government . . . "are reserved to the states . . . or to the people."

Tool Two: The state legislatures elected U.S. senators. Legislators needed the ability to say: You look after our interests or we'll get somebody who will.

Tool Three: The constitutional convention. The founders obviously intended states to have the ability to initiate constitutional amendments as a check on the national government.

Tool Four: A political tool. It was clear when the Constitution was drafted that the people preferred local and state governments and that states would jealously guard their roles.

At this point, the political strategist in Madison might take over. "You can fix this, just use the tools you were given. For example, use your first tool. File a lawsuit under the 10th amendment. This type of expansionism is exactly the reason the states insisted on such clear language."

One of us would then have to tell him about what the modern federal courts have done to the states.

Madison: "If that's the case, then use tool No. 2. You state legislators, call your United States senators home, tell them 'this is not what this legislature elected you to do.'"

More bad news. Somebody here would get to explain that in 1913, we amended the Constitution to have the people elect senators directly.

I can hear that conversation, can't you?

"You what!?"

"Well, state legislatures were having trouble electing senators . . . and, well . . . we passed the 17th amendment and now senators are popularly elected. The people demanded that the system be changed. It may have been a great tool, but it's gone. But hey, running for the U.S. Senate is a real honor, people pay millions of dollars of their own money to do it."

We would explain further that having U.S. senators appointed by legislatures was a good idea, but it just didn't work. Some states couldn't agree between their houses and there was corruption, even vote-buying. The people demanded that the system be changed. As a tool, it's gone.

Madison: "But can you see why we put the tool there? It gave you power! Can you visualize how different the debate in the Senate would be if you appointed them? Not only would the debate be different, but the type of people who serve there would be different. Most senators would emerge from state legislatures."

Madison would continue: "I see you have not been reluctant to amend the Constitution, so why don't you use the third tool and call a convention; surely there's a way to even this out a little."

"Actually, Mr. Madison, we've never had a convention. People on both sides of the ideological spectrum are unwilling to chance a runaway convention."

Madison: "My friends, your predecessors in state leadership have put you in a bad spot. The federal courts have eviscerated the 10th amendment. Your ability to hold U.S. senators accountable to state legislatures is gone. You say a constitutional convention is unthinkable. I have just one last question. How do the people feel about this? Are they happy with the national government? Have they become such fans of centralized power that they buy all this?"

No, the people are not happy. People have never had such low opinions of the federal government. However, citizens do hold their state and local governments in high regard.

"Well, if the people have a low opinion of the national government, but support states and local governments," Madison would ask, "why aren't states using the fourth tool, banding together and protecting their roles?"

"Well, states haven't been very good competitors. Even getting together in a meeting like this is controversial. We tried to show some solidarity by convening a Conference of the States, but opposition arose and we didn't get enough support. It's tough for 7,000 legislators dispersed in 50 diverse states to compete with the concentrated power of 535 members of Congress who meet in same building for 200 days a year.

Being close to the people makes us good at governance, but highly disadvantaged as competitors for power. We don't really have any protocol to work together."

Well, a conversation with Madison could go on and on. The point is that we have lost the tools the Founders gave us to fulfill our role in the federal system. States bear substantial blame, along with societal trends. When states did not respond to economic, environmental and human equality concerns, our citizens looked to the national government for leadership. War, depression, and an Industrial Age society of top-down management encouraged centralized structures.

But today is an entirely new era in history when states ARE fulfilling their responsibilities, when small, flexible, networked units, whether government or business, are outperforming their centralized, bureaucratic counterparts. States are offering dynamic leadership, fiscal responsibility and innovative policy solutions in every area of government. It is the national government that is bankrupt, both in terms of money and creative ideas. It is the national government where gridlock occurs. It is the national government that has alienated citizens to the point of disgust.

Why, in a country as big and diverse as ours, with as many good leaders as we have in every community, with so many resources and pluralistic values, do we allow ourselves to be micro managed from Washington a place, as one writer has noted that is mired in bureaucracy, captured by the money power of Wall Street, dominated by 90,000 lobbyists, 60,000 lawyers, 12,000 journalists, and the largest concentration of special interests the world has ever seen?

I believe our future as states depends on the development of tools that will fundamentally and permanently restore a better balance. Tools that complement and strengthen those provided by the founders. We are together today to consider what those tools might be.

A steering committee of the five organizations convening here appointed a panel of the nation's top federalism scholars. They reviewed some 30 proposals made over the years by many individuals and organizations. The panel then focused specifically on framing four questions that reflect the most promising directions. There may be others we should consider in the future.

Our goal in this meeting is to review these alternatives and determine which ones should be further scrutinized in our various states and organizations. This gathering is not being asked to endorse any particular proposal, only to prioritize them for further investigation.

Let me give you an example of just one of the policy directions. This approach is just my own opinion and I know there are many variations of this idea that will be discussed today and tomorrow. Some want to make this proposal stronger, others weaker. But this policy direction, however it is finally framed, is aimed at restoring some semblance of "Mother's Rules." If enacted, it would permanently give states a tool to make the national government more accountable to the people.

Once written in 1787, the Constitution required ratification of the people. States were the tool of the people for ratification. State Legislators are constitutional officers in the sense that they are empowered to speak for the people on constitutional proposals. I call this proposal the "People's Legislative Recall." It would allow the people of the United States, through a petition of some supermajority of legislatures, to compel Congress to reconsider a bad federal law or regulation. (Except those relating to national defense or foreign affairs.)

Again, I recognize there are differences of opinion on how strong or weak the power of states should be. My own preference is that states not be given the power to veto, nullify, amend, or initiate legislation, only to force Congress to take a second look and vote again.

How will that help? Let me illustrate the benefit. For years, every state has complained, written letters, testified and pleaded for the repeal of the Boren Amendment, a mandate in the Medicaid law that prohibits states from using the market place to reduce health care costs. It has cost taxpayers of the United States billions of dollars.

There is little question in my mind, that more than two-thirds of the states are desperate to be freed from the lunacy of this requirement. Years have passed and the power the seniority system and general lack of desire to face this controversy have prevented our request from even being considered on the floor of Congress.

With the People's Legislative Recall in place, the states could begin circulating a resolution calling for reconsideration of that statute. When two-thirds of the states had passed it, the Congress would be compelled to simply take a vote. Congress would be free, of course, to ignore the will of the states and deal with the political consequences. But at the very least, the states would have a process or protocol to demonstrate their collective will and to protect the people.

The other illustration deals with unfunded mandates. Two clearly observable lessons of the past year. First, thanks to the leadership of Gov. Voinovich and many of you here today, the "unfunded mandates bill" was signed into law. But even with that legislation, Congress is going back to its old tricks. Second, a Republican controlled Congress is proving just as capable of imposing mandates as a Democrat Congress.

If the People's Legislative Recall was in place, do you think the U. S. senators would be considering imposing on the states, for the first time in history, the lethal combination of a reduction in new money, mandated entitlements and a cap on their own commitment? They might, but I'm guessing they would be much less likely than they are now.

What about when the real crunch hits, a decade from now, and Social Security is about to go upside down. Do you think Congress might be tempted to cut budgets and mandate to the states rather than face the disaster created by 50 years of living in financial never-never land?

No matter what party controls Congress, states without tools are politically anemic and defenseless. When the national government is without a counterbalance, the people are unprotected.

I believe the People's Legislative Recall would restore and strengthen, in some small fashion, the tools states have lost. It would allow states, collectively, to once more perform a role in the national system. It would give states a check on federal power, as intended by the Founders.

Think of it this way. Getting two-thirds of the states to agree on anything is a complicated, difficult process. If two thirds of the state legislatures in America think a law or regulation was bad, maybe ... just maybe ... it is. Under those circumstances is it too much of an intrusion to ask congressional leaders to schedule a vote? How many votes do they take every day anyway? The states need tools, not to weaken the national government, but to hold it to a standard of responsible behavior and accountability.

Are the people with us on this one? The Worthily Group, a national polling firm, tested this concept for us. A whopping 85 percent of Americans agreed that if two-thirds of the legislatures vote that a federal law or regulation is bad, they should have the ability to force Congress to vote on that law again. 85 percent! That's a strong mandate!

If the status of states is to change, if states are to regain their proper role, if we are to restore the ideals of the founders, then the people in this room must do it.

Admittedly, we begin from a weakened position. Our tools have eroded or atrophied. We are politically anemic. We are in danger of becoming administrative units of the national government . . . the department of taxation for the Beltway crowd.

But whatever our weaknesses, we have reason for optimism. After all, we stand on the shoulders of the Founders. We share their vision, their ideals of freedom and independence.

I believe if they were here today, James Madison, Thomas Jefferson and Alexander Hamilton would tell us to be bold, to recall the historic, constitutional role state leaders must play. I believe they would tell us to do our duty, to act while the opportunity exists. As stewards of their creation, the Constitution of the United States, I believe they would tell us we have an obligation to restore the balance. And I believe they would tell us we can create a new generation of growth, prosperity and personal freedom if we move government back to our people in their towns and neighborhoods.

In conclusion, let me be so bold as to say that the purpose of our gathering today is to begin the process of revitalizing states as a force in shaping the American republic.

Thank you.