INTERGOVERNMENTAL RELATIONS
FALL, 2005
DR. CHRISTINE G. SPRINGER
702.497.1216 CGGS@AOL.COM
WEDNESDAY NIGHTS – FDH 215
UNIVERSITY OF NEVADA LAS
VEGAS
POLITICAL ASPECTS

STRUCTURED TO
ESTABLISH
OPPORTUNITIES FOR
GOVT UNITS
REPRESENTING
DIFFERENT
INTERESTS TO STAKE
OUT POSITION AND
EXERCISE
INFLUENCE
POLITICAL ASPECTS

POLITICAL, FISCAL AND
ADMINISTRATIVE ASPECTS OF SYSTEM
LINKED
 ROLES, BEHAVIOR AND
INTERCONNECTIONS OF MULTIPLE
ACTORS
–
–
–
–
–
–
–
THE PRESIDENCY
CONGRESS
FEDERAL COURTS
NATIONAL BUREAUCRACY
PIGS
NON-GOVERNMENTAL THINK TANKS
SPECIAL DISTRICTS
GOVERNMENTAL DIVERSITY
ROBERT REISCHAUER

FORMAL STRUCTURE DOES MAKE A DIFFERENCE
– SIX BASIC TYPES OF SUBNATIONAL GOVT

IMPORTANT CHARACTERISTICS OF DIVERSITY
– NONE ROUND EVERYWHERE
– NUMBERS, OVERLAPPING, DIFFERENCE IN SCALE
– SERVICE AND FISCAL RESPONSIBILITIES DIFFER AMONG
AND BETWEEN STATES
– RELATIVE IMPORTANCE OF TYPE DIFFERS
– SCOPE AND ACTIVITY
– INSTRUMENTS USED TO RAISE REVENUE

IMPLICATIONS
–
–
–
–
–
WHO TO COUNT ON?
LEGAL AUTHORITY AND ABILITY TO DELIVER?
DEAL WITH WHO DELIVERS THE SERVICE?
PROVIDING OR FINANCIALLY SUPPORTING SERVICE?
DEAL ONLY WITH THE STATES?
THE PROBLEM WITH
PROJECT GRANTS
THE INCOMES STRATEGY – DEALING WITH
CITIZENS REINFORCES TENDENCY TOWARD
CENTRALIZATION
 SHEER NUMBERS MAKE DIFFICULT TO
ADMINISTER
 FAIR ALLOCATION TO LOCAL GOVTS GIVEN
LARGE NUMBERS

– ELIGIBILITY BASED UPON DATA

INTERJURISDICITION FISCAL DISPARITIES
– EQUALIZATION THROUGH PER CAPITA
GOVERNMENTS AS INTEREST
GROUPS





MIRRORING CONSTITUENCY OF
CONGRESS
APPEALING FOR SUBNATIONAL GOVTS
NOT INTERESTED IN POLICY SUBSTANCE?
SPATIAL, FUNCTIONAL AND CONSTITUENT
INTEREST
GENERAL GOVT AND PUBLIC INTEREST
GROUPS
– COALITIONS
– HOUSING VS. CHILD CARE/WELFARE
– WINDOWS OF OPPORTUNITY W/O STRINGS
LOBBYING FOR THE GOOD OLE
DAYS

NGA AND NLC FROM CHICAGO TO CAPITOL
HILL
– SHOWCASE OF IDEAS AT WORK?

NCSL IN DENVER
– FROM HELPING MEMBERS TO LOBBYING
WASHINGTON (+1975)
– CONFERENCE OF MAYORS IN WDC SINCE 1932

STATE BUDGET OFFICERS/ICCMA
 LOBBYING THE STATES
 OFFICE OF FEDERALISM?
 PRIDE AND POLITICAL TURF
ADVANCING STATE INTERESTS
1997




INCREASING STATE REPRESENTATION THROUGH
CONSTITUTIONAL AMENDMENTS AND POLITICS
STATES’ INITIATIVE USING EXPERTISE
– UNFUNDED MANDATES REFORM ACT
– FAMILY SUPPORT ACT
– SAFE DRINKING WATER ACT
CONGRESSIONAL CONDITIONS ON GRANTS
FEDERAL JUDICIARY
– CHALLENGES BY ATTY GENERALS
• MOTOR VOTER ACT AND EPA REGS
• NO CHILD LEFT BEHIND
– CHALLENGES BY INDIVIDUALS
• DRUG FREE SCHOOL ZONES ACT
– SUPREME COURT APPTS IMPORTANT
PREEMPTION








CONGRESS TAKES PRECEDENCE OVER
STATE LAW
WHEN STATES DON’T ACT OR TO REGULATE
1988- SUPREME CT = NO PROTECTION
1970’S – ENVIRONMENTAL ISSUES
1991- SUPREME CT = MISSOURI AGEDISCRIMINATION LAW STANDS
1992 – FAIR CREDIT REPORTING
1993 – CELLULAR RATES
INTERNATIONAL AND INTERNET?
THE IMPORTANCE OF
COALITIONS

TWO OR MORE INDIVIDUALS EACH
REPRESENTING OTHERS AGREE TO
PROMOTE AND SUPPORT BENEFIT
PROGRAM
 BENEFICIARIES: EMPLOYEES, BUSINESS,
ONE-THIRD OF AMERICAN FAMILIES
 BARRIERS TO ACCESS: TERRITORIALITY
AND FRAGMENTATION
 HOW DO COLITIONS HELP US TO
UNDERSTAND POLICY DEVELOPMENT
INTERGOVERNMENTALLY?
IMPACT OF U.S. VS. LOPEZ

TURNING POINT FOR FEDERALISM
– SUPREME CT AND INTERSTATE COMMERCE
– CONGRESS EVOLVES RE: INTREPRETATION
– PUBLIC INTEREST GROUPS CHECK IN ON
FEDERALIZATION OF CRIMES ONCE
EXCLUSIVELY REGULATED BY STATES
EXCEEDING CONGRESS’ AUTHORITY
UNDER COMMERCE ACT
 CONSTITUTIONAL MINUTE OR MOMENT?
 CONSERVATIVE JUSTICES LOOKING TO
LIMITS OF POWER TO REGULATE
INTERSTATE COMMERCE

FEDERAL GOVT IN STATE
POLITICS

ALTERING
– WAY KEY ACTORS FUNCTION
– DISTRIBUTION OF INFLUENCE AMONG THEM
– WHO IS AN ACTOR

STATE AGENCY ALLIES
– RECEIVING GRANTS AND ENHANCING ROLE
IN STATE SYSTEM

WITHHOLDING FUNDS OR NEGOTIATING
FISCAL ASPECTS OF
INTERGOVERNMENTAL
RELATIONS





TYING GOVERNMENTS TOGETHER
OBLIGATIONS
OPPORTUNITIES
DEPENDENCIES
FEDERAL DOLLARS
–
–
–
–
–
–
$363 BILLION TO STATE AND LOCAL GOVTS IN 2002
56% THROUGH HEALTH AND HUMAN SERVICES
42% FOR MEDICAID
ALASKA = $3,500 PER CAPITA
NEW YORK = $2,000 PER CAPITA
NEVADA = $800 PER CAPITA
SIGNIFICANT FEATURES

STATE GOVT SPENDS MORE ON
FINANCING GOVT
– 1/4 FROM OTHER LEVELS

LOCAL GOVT SPENDS MORE ON
SERVICES
– 1/3 FROM OTHER LEVELS

CYCLES OF FEDERAL SPENDING
RAISING THE REVENUE




SHIFT OVER TIME TO
USER, GENERAL SALES,
UTILITY, LIQUOR
FEDERAL 11.8% P.I.
– 70% INCOME TAXES
STATE 10% NV P.I.
– 50% GENERAL SALES
AND EXCISE TAXES
– 33% INCOME TAXES
LOCAL
– 75% PROPERTY TAXES
– 15% SALES TAXES
– 33% INTERGOVT
TAXES AS REVENUE

GENERAL PROPERTY
TAX
– WORST TAX?

SALES
– 83%

LICENSES
– 13%


INCOME
CORPORATE
– 25%

OTHER
– STATE LOTTERIES 3%
– 12%
STATE AND LOCAL SPENDING

IMPACTS FROM
INFLATION
 STATE
–
–
–
–

PUBLIC WELFARE
EDUCATION
HEALTH
HIGHWAYS
LOCAL
– EDUCATION
– HEALTH
– HIWAYS
INTERGOVERNMENTAL GRANTS
CATEGORICAL = STIMULATING
SPENDING IN FUNCTIONAL AREAS
AND LOWER PRICES FOR
GRANTEES
 FORMULA GRANTS = DOLLARS TO
GOVERNMENTS
 FIXED AMOUNT = FOR SPECIFIC
PURPOSES (EDUCATION, HIWAYS)
 PROJECT=PLANS AND
COMPETITION

FEDERAL GRANTS IN AID





PROVIDING SERVICE THAT NATIONAL
INTEREST REQUIRES W/O PRE-EMPTION
EXPENDITURE W/O RESPONSIBILITY?
NOT INCREASING STATE EXPENDITURES
IN TARGET AREAS
SECURING UNITY W/O SACRIFICING
COHESIVENESS
REFINING FEDERALISM NOT
UNDERMINING IT
WHY CATEGORICAL GRANTS?

ECONOMIC AND FISCAL
CONSIDERATIONS
– SPILLOVERS AND EXTERNALITIES
– HIGHWAYS, WASTEWATER PLANTS

POLITICAL FACTORS
– INTEREST GROUPS AND DISTRUST
– CONGRESSIONAL INFLUENCE

SOCIAL PLURALISM
– INCREMENTAL STEPS VS. FISCAL CHANGE
10TH AMENDMENT

POWERS NOT
DELEGATED TO
THE U.S. BY
CONSTITUTION
NOR PROHIBITED
BY IT TO THE
STATES ARE
RESERVED TO
THE STATES OR
TO THE PEOPLE.
ROLE OF THE SUPREME COURT

SOUTH CAROLINA VS. BAKER - 1988
– NO TAX IMMUNITY UNDER THE 10TH AMENDMENT?
 GARCIA VS. SAN ANTONIO METROTRANSIT AUTH –
1985
– NO PROTECTION FROM FEDERAL REGULATION
 LESSONS:
– POLITICAL ADMIN RELATIONSHIP NOT
CONSTITUTIONAL
– FEDERAL TAX TREATMENT STATUTORY
 GONZALEZ VS. RAICH – JUNE 6, 2005
– TRANFORMING THE NONCOMMERCIAL
POSSESSION OF HOMEGROWN MARIJUANA INTO
INTERSTATE COMMERCE (6 TO 3)
IMPACT OF U.S. VS. LOPEZ

TURNING POINT FOR FEDERALISM
– SUPREME CT AND INTERSTATE COMMERCE
– CONGRESS EVOLVES RE: INTREPRETATION
– PUBLIC INTEREST GROUPS CHECK IN ON
FEDERALIZATION OF CRIMES ONCE
EXCLUSIVELY REGULATED BY STATES
EXCEEDING CONGRESS’ AUTHORITY
UNDER COMMERCE ACT
 CONSTITUTIONAL MINUTE OR MOMENT?
 CONSERVATIVE JUSTICES LOOKING TO
LIMITS OF POWER TO REGULATE
INTERSTATE COMMERCE

FEDERALISM AND FED BUDGET
REDUCTIONS

ECONOMIC FEDERALISM
 REAGAN’S NEW FEDERALISM
 USING FEDERALISM PRINCIPLES TO
AFFECT DEFICIT
– BUDGET CUTTING THROUGH MANDATES
• PRODUCE A GOOD – CLEAN AIR
• PRODUCE SPECIFIED WAY – DRINKING WATER
• REGULATE FIRMS OR CONSUMERS – HANDGUN
WAITING
– INTERGOVT GRANTS – REFORM OR BUDGET
CUTS?
• FROM GENERAL REVENUE SHARING TO GRANT
PAYMENTS TO INDIVIDUALS
LOCAL GOVTS’ RESPONSE




BALANCED BUDGET
CONSTRAINTS
AFFECTS ON
REDISTRIBUTION
RESTRICTING
BENEFITS
SHIFT TO STATE
ADMINISTERED
BLOCK GRANT
PROGRAMS?
LVCC AND NEVADA TAX PAYERS
ASSOCIATION
RECOMMENDATIONS

MEANS-TEST ENTITLEMENT PROGRAMS OR FEE
SCHEDULE FOR NON-DISADVANTAGED
 PRIORITIZE EXPENDITURES
 PROGRAM OR PERFORMANCE-BASED BUDGETS
 OUTCOME BASED PERFORMANCE INDICATORS
 SUMMARY OF GRANTS IN EVERY BUDGET
PREPARATION
 RETIREMENT BENEFITS SHOULD NOT BE
SUBJECT TO COLLECTIVE BARGAINING
 NO VACATION TIME AND SICK LEAVE BUY BACKS
 PRIORITY SCHEDULING FOR TECH
ENHANCEMENTS AND TRAINING FOR REVENUE
GENERATING DEPTS
CALIFORNIA ADOPTION
ASSISTANCE PROGRAM

WHAT ARE THE PROBLEMS WITH THIS
PROGRAM?
 HOW BIG IS EACH OF THESE PROGRAMS
 IS THIS PROGRAM REALLY SO OUT OF
CONTROL AS IT APPEARS?
 WHAT SHOULD THE STATE WANT TO
HOLD THE COUNTIES ACCOUNTABLE
FOR?
WHAT IS ACCOUNTABILITY?






COST MINIMIZATION?
ADHERING TO FUNDER DIRECTIVES?
DEFINING AND ENFORCING
STANDARDS?
OFFICIALS ARE HELD ANSWERABLE
FOR GENERAL NOTIONS OF
DEMOCRACY, MORALITY AND SPECIFIC
LEGAL MANDATES
WHAT ABOUT INTER-COUNTY
CONSISTENCY
WHAT ABOUT INTERGOVERNMENTAL
COOPERATION SAVING THE 15%?
CONCLUSIONS REGARDING
EFFECTS OF FEDERAL
BUDGETARY CUTS
UNFUNDED MANDATES
 FEDERAL GRANTS TO LOCAL
GOVTS APPEALS TO FEDERALISTS
 SHIFTING FROM OPEN ENDED
MATCH GRANTS TO BLOCK FIED
GRANTS
 ELIMINATING ENTITLEMENTS

QUESTIONS TO BE ANSWERED RE:
PROJECT SELF SUFFICIENCY
WHAT’S THE
CONFLICT?
 HOW TO RESOLVE?
 WHAT CHANGE IS
BEING MADE?
 WHAT MOTIVATED
THE CHANGE?
 WHAT PRINCIPALS
ARE IN THE
CONFLICT?
 DOES THERE HAVE
TO BE A CONFLICT
BETWEEN FEDERAL
AND LOCAL
INTERESTS?

WHAT ARE INTERGOVT
ADMINISTRATIVE ACTIVITIES?



TWO OR MORE LEVELS OF GOVT
CONVERTING A NATL POLICY TO SPECIFIC
STATE AND LOCAL OBJECTIVES
NATL
– WHICH AGENCIES? WHAT REGULATION? HOW MUCH
AID? WHAT PLANS? COORDINATION?

STATE AND LOCAL
–
–
–
–
COALITIONS AND DRAFTING PLANS
STAFFING
CORRDINATION
PROGRAM BENEFICIARIES
ADMINISTRATIVE ASPECTS OF
INTERGOVERNMENTAL SYSTEM
INTERGOVERNMENTAL REGULATION
 MANDATING

– UMRA – 1995
– COMPLEX POLITICAL FORCES
– STATE MANDATES ON LOCAL GOV’TS
NATIONAL PERFORMANCE REVIEW
1993
 REPUBLICAN CONTRACT WITH
AMERICA 1995

INTERGOVERNMENTAL
REGULATION

DIRECT ORDERS
– THREAT OF CRIMINAL OR
CIVIL PENALTIES

CROSSCUTTING
– APPLY TO ALL FEDERAL
ASSISTANCE PROGRAMS

CROSSOVER
– THREATEN TERMINATION OF
AID UNLESS REQUIREMENTS
MET

PARTIAL PREEMPTION
– FEDERAL STANDARDS BUT
STATE ADMINISTRATION
DIRECT ORDERS

EEOC 1972
 MARINE
PRORTECTION
RESEARCH &
SANCTUARIES ACT
1977
 OSHA
– EXEMPT AS
EMPLOYERS

FLSA 1974
– NLC VS USERY 1976
• CAN’T THREATEN
INDEPENDENT
EXISTENCE
CROSSCUTTING
REQUIREMENTS

HORIZONTAL
 CIVIL RIGHTS ACT 1964
 OMB 1980
– 39 SOCIO-ECON.
– 23 FISCAL-ADMIN
– ENVIRONMENTAL
PROTECTION
– NONDISCRIMINATION
CROSSOVER SANCTIONS


TIED TO GRANTS-INAID
VERTICAL
– SINGLE FUNCTION,
DEPT OR PROGRAM


HIGHWAY
BEAUTIFICATION ACT
1965
EMERGENCY
HIGHWY ENERGY
CONSERVATION ACT
1974
PARTIAL PRE-EMPTION


USING SUPREMACY
CLAUSE AND
COMMERCE POWER
WATER QUALITY ACT
1965
– FED. GOVT CAN ASSUME
JURISDICTION

CLEAN AIR
AMENDMENTS 1970
– ESTABLISHING EMISSIONCONTROL REQUIREMENTS
– SIPS AND HWY
CONSTRUCTION
– FUND TERMINATION AS IN
CROSSOVER
THE ROLE OF FEDERAL
MANDATES 1995





200 SEPARATE MANDATES
170 DIFFERENT LAWS
3,500 COURT DECISIONS
NATL ISSUES TODAY: ANY
PROBLEM THAT IS VISIBLE
ACIR RECOMMENDATIONS
– REPEAL BASED ON LACK OF
NATL IMPORTANCE (FLSA,
FMLA, OSHA)
– SHARED COSTS (CWA, ADA)
– REVISE FOR FLEXIBILITY
(SDWA, CLEAN AIR, SAFE
DRINKING WATER ACT
POLITICS OF UNFUNDED
MANDATES
PAUL POSNER






FROM MANDATES IN 1970’S +
1980’S TO REFORM IN 1990’S
REPUBLIANS AS RELUCTANT
MANDATORS
DELAYED STATE AND LOCAL
REACTION
SERVING POLITICAL
FUNCTIONS
INTERGOVERNMENTAL ROOTS
– PRECEDED BY STATE
ACTION
GROWING INTERDEPENDENCE
COOPERATIVE MANDATING?

NOT JUST HOW
BUT WHETHER?
 HELPING
LEGITIMIZE THE
FEDERAL
PRESENCE
 MODIFICATIONS
 INFLUENCE OVER
DESIGN AND
IMPLEMENTATION
AS A PROTECTOR
THE OTHER MANDATE WAR
HOSANSKY

FLORIDA 1980’S
– 5O A YEAR
– $1 BILLION
– RELIEF FROM VOTERS
(17 STATES)

UMRA 1995
– CBO ESTIMATES AND
HURDLES FOR $50
MILLION+

FEDERAL AND STATE
START-UP MONEY
ONLY
– IT JUST ROLLS
DOWNHILL
NATIONAL PERFORMANCE
REVIEW - 1993






ACIR GOES OUT OF
BUSINESS
$226.1 BILLION IN
GRANTS
DUPLICATION AND
OVERLAP
INCREASED
MANDATES
CONSOLIDATION
NEEDED
OPPORTUNITY FOR
CHANGE
NPR GOALS FOR CHANGE




REDUCE
CATEGORICAL
GRANTS
REDUCE UNFUNDED
MANDATES
OUTCOMES AND
INCENTIVES
INTERGOVT AND
INTERDEPT
COLLABORATION
NPR RECOMMENDATIONS







IMPROVE GRANT
ADMINISTRATION
CUT RED TAPE AND ELIMINATE
ROADBLACKS
SIMPLIFY COST
REIMBURSEMENT
PROCEDURES
ELIMINATE NEEDLESS
PAPERWORK
SIMPLFY COMPLIANCE
REINVENT ACIR
PROMOTE
INTERGOVERNMENTAL
COLLABORATION
CONTRACT WITH AMERICA OR
REDISCOVERING GOVERNMENT
DIIULIO AND KETTL




DISTRUST IN GOVT THEN AND NOW
3,000 MILES WIDE AND 2 MILES DEEP
– NATL ROLE
– HOW TO BALANCE THE FEDERAL
BUDGET
– WHAT DOES LESS GOVT REALLY
MEAN
– MEDICAID AS AN EXAMPLE
• 694 PAGES OF RULES
DO DEVOLUTIONISTS WANT TO KILL OR
CURE INVOLVEMENT IN HEALTH, CRIME,
WELFARE, ENVIRONMENTAL MGT,
TRANSPORTATION?
CIVIC EDUCATION ABOUT PUBLIC MGT
– IMPLEMENTATION IS IMPORTANT
REDISCOVERING GOVERNMENT






DOCUMENTING WHAT GOVT
DOES
ADMIN. SUCCESSES AND
FAILURE
ANALYZE REASONS FOR
VARIANCE IN
PERFORMANCE AT EVERY
LEVEL
HOW TO REPLICATE MGT
EXCELLENCE
WHAT APPLIED STRATEGIES
WORK BEST
DISSEMINATE WIDELY
WHERE TO FROM HERE?

INTERDEPENDENCE
 GLOBALIZATION
 DESTRUCTIVE
PLURALISM
 NEW NATIONALISM
 FEDERALISM
CONTINUES
 ROLE OF
TECHNOLOGY
 NEW NATIONALISM
 CENTRALIZATION OR
DECENTRALIZATION
THE IDEA OF NATION
BEER

ONE NATION
DEFINED AS HOW
– COMMON BENEFIT
– PARTNERSHIP IN
PERFECTION
– ONE STEADY
PURPOSE
– UNITED ACTION IN
EMERGENCIES
– ADDRESSING
SECIONAL, ECONOMIC
AND ETHNIC
STRESSORS

HAMILTON
– 50 STATES ENGAGED
IN NATION BUILDING
THE POWER OF STATES
KELLER

MADISON
– POWERS RESERVED
TO STATES IN
ORDINARY COURSE
OF AFFAIRS



STATE AND LOCAL
OBLIGATIONS MET
WITH FEDERAL
STANDARDS WORK
INCREMENTAL
CHANGE
THE SYSTEM
PERSISTS
HEALTH POLICY AS AN
EXAMPLE





ABSENCE OF NATIONAL ACTION DOES
NOT PREVENT STATE ACTION
USE OF WAIVER AUTHORITY UNDER
SOCIAL SECURITY ACT (43 STATES)
DIFFERENCES INCREASING
UNDERMINING MEDICAID BLOCK GRANT
EVEN AS CREATING WELFARE BLOCK
GRANT
HEALTHCARE REFORM TO LEAD THE
WAY?
NEW NATIONALISM IN SOCIAL
POLICY
JANSSON AND SMITH





1950’S – 1970’S – OPPRESSIVE FED.
GOVT?
1980’S – 1990’S – DEVOLUTION
COMMON STATE TAX? (1992)
ONE NATION NEEDED TO ADDRESS
SOCIAL PROBLEMS
FEDERAL POWER BUT GRANTING
WAIVERS
FEDERAL POWER BUT WITH THE
GRANTING OF WAIVERS

WAIVERS TO BE GRANTED:
– EXTENT FEDERAL TAX CODE USED
• EARNED INCOME TAX CREDIT
–
–
–
–
PROGRAM ADDRESSES SURVIVAL NEEDS
LIKELIHOOD STATES WILL DISCRIMINATE
PROBLEM REQUIRES LARGE RESOURCES
ECONOMIC COMPETITION BETWEEN STATES
INHIBITS SOCIAL OUTCOMES
– LINKED TO GLOBAL COMPETITIVENESS
– LOCAL INPUTS AND PARTNERSHIPS NEEDED
– SERVICE-INTENSIVE PROGRAMS
STRATEGIES FOR POLICY
PRACTITIONERS

SEEK AND RETAIN
CENTRAL RULES
AND FUNDING
 TARGET
EXCESSIVE
DEVOLUTION FOR
CHANGE
 BE PRINCIPLED
OPPORTUNISTS
THE FUTURE OF REFORM
 DEVOLUTION

OR
CENTRALIZATION?
SYSTEM UNDER STRESS
KETTL

EFFECTIVE RESPONSE STRATEGY:
– PREPARE GOVT TO ASSIST CIVILIANS
IN CASE OF ATTACK
– PROVIDE CONTINUITY OF GOVT
– PROVIDE CONTINUITY OF MILITARY
OPERATIONS
– BORDER AND COASTAL DEFENSE
– NATIONAL AIR DEFENSE
HOMELAND SECURITY AND
PUBLIC POLICY




HELPING EVERYONE
UNDERSTAND
CIVIL RIGHTS VS.
SECURITY
THINKING ABOUT
RISK DIFFERENTLY
SHAPING AND
RESTRAINING
CHANGE IN AMERICA
THE SYSTEM BREAKS DOWN

SEPTEMBER 11
– HIJACKED
AIRLINES
– NEAR MISSES
– LACK OF
INFORMATION
SHARING AND
COORDINATION

OCTOBER 29
– ANTHRAX EVENTS
HOMELAND SECURITY AS
COORDINATION





+ INTERGOVERNMENTAL
+ FEDERAL
+ REGIONAL
+ HEALTH
+ FIRST RESPONDERS
 - WORLD TRADE CENTER
 - INTELLIGENCE AGENCIES
 - PRESIDENCY AND CONGRESS
 THE CHALLENGE: GETTING
BUREAUCRATIC AGENCIES TO WORK
TOGETHER
COORDINATION IN THE
FEDERAL BUREAUCRACY

CREATING DEPARTMENT OF HOMELAND
SECURITY -$37.5 BILLION AND 160,000
EMPLOYEES
–
–
–
–
22 AGENCIES
CONFLICTING MISSIONS
DIFFERENT CULTURES
PHYSICAL AND TECHNOLOGY BARRIERS
• THE TRILOGY PROJECT
– 88 DIFFERENT CONGR. COMMITTEES
– ASYMMETRY AS THE ENEMY
– WHAT DOES HOMELAND SECURITY REALLY
MEAN?
REORGANIZING HOMELAND
SECURITY
NAPA – SUMMER 2003











CENTRALIZED DECISION MAKING WON’T WORK
OPERATIONAL AUTHORITY IN THE FIELD
LISTEN TO STAKEHOLDERS
BUILD INTER-AGENCY TEAMS
USE BUDGET TO BUILD CONSENSUS
DO NOT LET CRISES DETER DAY-TO-DAY
ADMINISTRATION
GOOD INFORMATION AND COMMUNICATION SYSTEM
STREAM LINE PROCESSES
CHOOSE ADMINISTRATORS BASED ON COMPETENCE
DON’T FORCE UNIFORMITY
CONTINUOUS EMPLOYEE COMMUNICATION
PUA 705 – NOVEMBER 3, 2005
INTERSTATE COMPACTS
 STATE AND LOCAL STRUGGLES

INTERSTATE COMPACTS

AGREEMENTS BETWEEN TWO OR MORE STATES THAT BIND
THEM TO THE COMPACT PROVISIONS
– CONTRACT LAW APPLIES
– CONSTITUTIONAL PROTECTION
– STATES BOUND EVEN IF CONFLICT WITH STATE LAW

36 COMPACTS BETWEEN 1783-1920
– BOUNDARY DISPUTES

MULTISTATE REGULATORY BODIES
– 1921 NEW YORK-NEW JERSEY PORT AUTHORITY

MORE THAN 200
– EMERGENCY MGT ASSISTANCE
– INTERSTATE COMPACT ON INDUSTRIALIZED MODULAR
BUILDINGS
– INTERSTATE INSURANCE RECEIVERSHIP COMPACT
– LOW-LEVEL RADIOACTIVE WASTE COMPACTS
• MANDATED BY CONGRESS
INTERSTATE COMPACTS

CONGRESSIONAL APPROVAL
– ARTICLE ONE – US. CONSTITUTION
• NO STATE, SHALL WITHOUT THE CONSENT OF
CONGRESS ENTER INTO ANY AGREEMENT OR
COMPACT WITH ANOTHER STATE
• VIRGINIA VS TENNESSEE (1893)
– NOT ALL
» ONLY THOSE THAT AFFECT A POWER
DELEGATED TO THE FEDERAL GOVT OR ALTER
FEDERAL BALANCE OF POWER
» EDUCATION AS AN EXAMPLE
• EXPRESSED OR IMPLIED THRU RESOLUTION
• CAN BE INVALIDATED
INTERSTATE COMPACTS

GENERAL PURPOSES
–
–
–
–
–
–
EMERGENCY MANAGEMENT ASSISTANCE
INTERSTATE AGRICULTURAL
PORT AUTHORITY
RIVER BASIN COMPACT
SUPERVISION OF PAROLEES AND PROBATIONERS
ECONOMIES OF SCALE
• WESTERN HIGHER EDUCATION COMPACT
– COMPLY WITH FEDERAL LAW
• INTERSTATE LOW-LEEL RADIOACTIVE WASTE
– PROMOTE REGIONAL INTERSTS
• SOUTHERN GROWTH POLICIES BOARD
– SETTLE INTERSTATE DISPUTES
• BOUNDARY
INTERSTATE COMPACTS
TYPICAL TIMEFRAME: 5 – 9 YEARS
 COMMON CRITICISMS

– MEMBER STATE FOREIT INDIVIDUAL
SOVEREIGNTY
– COMPACTS CAN BE EXCLUSIONARY
– ADMINISTRATIVE AUTHORITY MAY
NOT BE CLEARLY DEFINED
OHIO, KENTUCKY, INDIANA
MEMBER OF EMAC 2002 –
HYPOTHETICAL EXAMPLE

3 STATES MUST RESPOND TO BIOLOGICAL
THREAT OF CONTAMINATION OF OHIO RIVER
– KENTUCKY TO SEND EXPERTS
• COVERED BY WORKER’S COMP IN KENTUCKY
– YES IN OHIO/NO IN KENTUCKY
• SUPREME COURT EXTENDS HOST STATE JURIS.
• WHICH STAKEHOLDERS HAVE STANDING
– FEDERAL LAW USUALLY APPIES
– WORKER INJURED MAY SEEK COMPENSATION
FROM EITHER OHIO OR KENTUCKY
– BALANCING PRIVATE RIGHTS, RISK AND
STRENGTH’S OF AGENCY INTERESTS
INTERSTATE COMPACTSOTHER CONSIDERATIONS

HEARING REQUIREMENTS
– FORMAL OR INFORMAL
 DECISION MAKERS
– SEPARATION BETWEEN ALJ AND INVESTIGATORS?
– ARE DECISIONMAKERS ACCOUNTABLE?
– DELEGATION OF DECISIONMAKING
 EXPARTE COMMUNICATION
– LAWMAKERS CONVEY INTERPRETATION EX PARTE?
– OVERRIDE DISQUALIFICATION OF DECISIONMAKER ON
GROUNDS OF NECESSITY?
– IMPRTIALITY OF ALJs ASSURED?
 HOW WILL DECISIONS BE MADE?
– ORAL OR IN WRITING
– FINAL ORDER OR RECEMMENDATION
– WHICH JURISDICTION HAS FINAL SAY?
– AGENCY BOUND BY ITS OWN PRECEDENT OR BY CONSTITUENT
STATES
INTERSTATE COMPACT FOR
ADULT OFFENDER
SUPERVISION






OUTDATED AUTHORITY AND STRUCTURE
STATES WITH LIMITED CONTROL
4.5 MILLION OFFENDERS
50 STATES ARE MEMBERS
TWO OPTIONS
– TEXT AND TERMS NOT AMENDED
– RESPONDING TO CHANGES W/O AMENDMENT
SPECIFICS
– INDEPENDENT OPERATING AUTHORITY + STAFF
– STATE POLICY MAKERS
– MANDATORY FUNDING MECHANISM
– COLLECTION OF STANDARDIZED INFORMATION
– FACILITATING STATE AUTHORITY AND NATIONAL
COOPERATION
• STATE COUNCILS DETERMINE OWN STRUCTURE
• PARTICIPATE IN NATIONAL COMMISSION
• LEGISLATIVE, EXECUTIVE AND JUDICIAL
REPRESENTATIVES
• STATES DETERMINE COMPACT ADMINISTRATOR
CONCERNS FROM THE
FIELD

WHAT TRANSITION?
– COUNCIL OF STATE GOVERNMENTS AND
NATIONAL INTERSTATE COMMISSION PUT
TOGETHER PROCESS

WHAT HAPPENS IF NOT A MEMBER OF
ORIGINAL 35
– GOVERNOR INVITED
– OLD COMPACT STATES AND NEW

A NEW VIEW
– EMPOWERING STATES TO MAINTAIN
CONTROL OVER AREAS THAT RIGHT ARE
NEW COMPACT PROVISIONS





ENFORCEMENT PROVISIONS CAN BE
SPECIFIED
CENTRALIZED COMMISSION WITH STATE
REPS
RULE-MAKING AUTHORITY AS
LONGTERM SOLUTIONS
NATIONAL INTEGRATED INFORMATION
SHARING SYSTEM
MANDATORY FUNDING MECHANISM TO
SUPPORT ESSENTIAL OPERATIONS
INTERSTATE FIRE PROTECTION
AND WATER RESOURCES
COORDINATION
WHAT IS PURPOSE?
 WHO ARE THE PARTIES?
 HOW WILL DECISIONS BE MADE?
 HOW WILL COMMUNICATIONS BE
HANDLED?
 CONGRESSIONAL APPROVAL?
 HOW WOULD YOU IMPROVE?

SYSTEM UNDER STRESS
STATE AND LOCAL STRUGGLES

ALL POLITICS AND DISASTERS ARE
FIRST AND FOREMOST – LOCAL
 EMERGENCY COMMUNICATION IS LIKE
911
– 200 HUNDRED N.Y. UNITS RESPOND
– ANTHRAX AND POSTAL WORKERS AND
PHYSICIANS

COMMON EVENTS PLAYING OUT IN
UNCOMMON FASHION
DRAGON FIGHTERS
RESPOND








ALARM GOES OFF AND LADDER 6
RESPONDS
SITUATION DIFFICULT TO ASSESS
NO INFORMATION
TRAINED TO SAVE PEOPLE
TOWER COMES DOWN
FINDING SIXTEEN PEOPLE AND A RADIO
SAVING JOSEPHINE HARRIS
JAY JONAS: JUST DOING THE SAME JOB
AS 343 WHO DIED
GAPS IN THE SYSTEM






IS AN ALL-RISK STRATEGY BETTER?
– STRONG BASIC CAPACITY AND DEPLOY REGARDLESS OF
CAUSE
ARE MUTUAL AID AGREEMENTS KEY?
– HOW COORDINATED?
– SMALLER SACRIFICE RIGHT TO SEPARATE FUNDING?
UNDER-EQUIPPED,
UNDER-TRAINED
UNCOORDINATED
– DO FIREFIGHTERS TALK TO POLICE?
– LACK OF INTER-OPERABILITY IN TEXAS
– OCTOBER 2001 – ANTHRAX – PUBLIC HEALTH AND FIRST
RESPONDERS
UNDERFUNDED
– COUNCIL ON FOREIGN RELATIONS 2003
COORDINATION IN THEORY
AND PRACTICE




COORDINATION AS A STRUCTURAL PROBLEM REQUIRING
ORGANIZATIONAL DESIGN
– TAYLOR:SCIENTIFIC MANAGEMENT: HOW WILL THE WORK
BE DIVIDED?
– GULICK:PURPOSE, PROCESS, CLIENTELE, PLACE
• NOT NEAT OR PERFECT
– HOOD: COULD HAVE BEEN AVOIDED – TIGHTEN UP RULES
AND AUTHORITY
COORDINATION AS A CONTINGENT PROBLEM
– SIMON: COORDINATION THROUGH DECISIONMAKING
WORLD TRADE CENTER VS. ARLINGTON COUNTY’S
RESPONSE TO PENTAGON
REQUIRING STRONG, FUNCTIONALLY ORGANIZED
BUREAUCRACIES TO SOLVE PLACE-BASED PROBLEMS IS
DIFFICULT
– STRUCTURAL AND NONSTRUCTURAL APPROACHES
A QUESTION OF MONEY






FEDERAL, STATE, LOCAL BUDGETARY ROLE
MINIMUM PROTECTION REQUIRED
WHERE TO FOCUS THE MONEY?
– BIGGEST THREAT?
– TO ALL GOVTS?
– RELY ON STATE AND LOCAL ASSESSMENTS?
– HOW MUCH ON GOALS DEFINED BY FED. GOVT?
– UNEVEN STATE RESPONSE?
CORE OF THE PROBLEM
– SELF GOVT LIMITS FED CONTROL
– DIFFICULT TO SET AND ENFORCE EMERGENCY STDS
HOW SHOULD STATE AND LOCAL FLEXIBILITY BE ENCOURAGED SO TO
ENCOURAGE LABORATORIES OF DEMOCRACY AND EMERGENCY RESPONSE?
– CLEANER DIVISION BETWEEN FEDERAL AND STATE?
– HOW TO ASSURE PROTECTION ACROSS BOUNDARIES?
– FEDERAL GOVT DEFINES AND FINANCES WITH STATES IMPLEMENTING?
WHAT KIND OF GRANTS
– NO STRINGS
– BLOCK GRANTS
– CATEGORICAL GRANTS
GOING BACK TO WHY
FEDERALISM?
1787 TO DATE
 CHECKS GROWTH IN TYRANNY
 ALLOWS UNITY WITHOUT
UNIFORMITY
 ENCOURAGES EXPERIMENTATION
 KEEPS GOVT CLOSER TO THE
PEOPLE

THE CONSTITUTIONAL
STRUCTURE

NATIONAL GOVT ONLY THOSE POWERS DELEGATED TO IT BY THE
CONSTITUTION EXCEPT IN FOREIGN AFFAIRS
 NATL GOVT SUPREME
 POWER TO WAGE WAR, REGULATED INTERSTATE AND FOREIGN
COMMERCE, TAX AND SPEND
 STATES HAVE THOSE NOT DELEGATED UNLESS DENIED AND SOME
CONCURRENT
– TAX AND SPEND
– LOCAL GOVTS
– ELECTIONS
– CREATING REPUBLICAN FORM OF GOVT
– NO TREATIES WITH FOREIGN GOVTS
– NO COINING MONEY
– NO COMMERCE
– WITH CONSENT TAX IMPORTS AND EXPORTS
– TAX FOREIGN SHIPS
– KEEP TROOPS IN TIME OF PEACE
NORMAL ORGANIZATION AND
ABNORMAL EVENTS
INJECTING UNCERTAINTY
 USING CONVENTIONAL
ORGANIZATIONS TO RESPOND TO
UNTHINKABLE
 DEPENDING UPON FEDERALISM
 OVERCOMING FRAGMENTATION
 GREATER RISKS

Pua 705 – November 10, 2005
 Political
Costs of Managing Risk
 Civil Rights and Civil Liberties
 The Worst is Yet to Come
 Lessons from Wildfire Hazard
Mitigation
 Lessons from Seattle’s “Garbage
Mess”
POLITICAL COSTS OF
MANAGING RISK

REDUCING ODDS NOT
PREVENTING
TERRORISM
 BALANCING RISKS
THROUGH
REDUNDANCY?
 TWO KINDS OF ERROR
– FALSE POSITIVES
– FALSE NEGATIVES
– AA FLIGHT 63 AS AN
EXAMPLE
– HOW TO FIND THE
THREE TENSIONS IN
HOMELAND SECURITY



COLLECTING ENOUGH DATA
TO MAKE GOOD DECISIONS
– COLUMBIA SPACE
SHUTTLE
RISK OF BACKSLIDING
– ACCEPTING SOME FALSE
POSITIVES
CALIBRATING RISK
– FEARING NEW RISKS
MORE THAN EXISTING
ONES
– GAMBLING ON
TERRORISM
HOW TO WARN?






FIVE COLOR DESIGNATION –
MARCH 2002
FEB 2003 – TERROR
WARNING FROM YELLOW
TO ORANGE
BUYING PLASTIC HEETING
AND DUCT TAPE FOR SAFE
ROOM
2003 CRS STUDY FINDS
SYSTEM TOO VAGUE
UK = SEVEN DIFFERENT
LAYERS
AUGUST 2003 BLACKOUT
HOW TO FRAME HOMELAND
SECURITY POLICY?

WHAT CAN
OFFICIALS
GUARANTEE?
 SECURITY IS A
PRODUCT OF
POLITICAL TRADEOFFS
 HOMELAND
SECURITY AS AN
INTERGOVERNMENT
AL PROBLEM
 POLITICAL
CIVIL RIGHTS AND CIVIL
LIBERTIES


HIJACKERS AS LEGAL
RESIDENTS
PASSING THE PATRIOT ACT
– BROAD NEW POWERS TO
INVESTIGATE AND DETAIN
– HOW OPEN A SOCIETY?


BROADENING THE WAR AND
PRISONER INTERROGATION
BALANCING SECURITY AND
RIGHTS
THE WORST IS YET TO
COME

WE NEED A FEDERAL GOVT
– OPERATES FROM TOP DOWN SO
SYSTEM WORKS FROM BOTTOM UP
– NIMBLE RESPONSE
– ALL HAZARD APPROACH
– TOP OFFICALS WITH SKILLS TO LEAD
– FEDERAL BUDGETARY INCENTIVES
– COMMUNICATION SYSTEM LINKING
LEADERS
THE WORST IS YET TO
COME

WE NEED STATE AND LOCAL
GOVTS THAT
– CREATE UNIFIED COMMAND
– ESTABLISH A SINGLE PUBLIC FACE TO
PROMOTE TRUST
– PROVIDE COMMUNICATION SYSTEMS
TYING DECISION MAKERS TOGETHER
– PRACTICE PLANS
– SPEND EFFECTIVELY
PATHOLOGIES OF FAILURE





LOOKING BACK NOT FORWARD
REFORMING INSTEAD OF GOVERNING
THINKING VERTICALLY NOT
HORIZONTALLY
REGULATING NOT PERFORMING
STAYING WITHIN THE BOUNDARIES NOT
TRUSTING THE INTERGOVERNMENT
SYSTEM
LESSONS FROM 9
WILDFIRES
2003

HAZARD REDUCTION AND
COST CONTAINMENT
– FIRE RESISTANT
COMMUNITIES
– STRATEGIC FUEL BREAK
SYSTEMS
– REDUCE VEGETATIVE FUEL
LOADS AND RESTORE
FORESTS

MITIGATION
PARTNERSHIPS
– CPLFA, FEMA, LANDFIRE
INFO. SYSTEM
– ONE STOP WEB SITE