Principles ... (Fred Thompson)

The Framers drew their design for our Constitution from a basic understanding of human nature. From the wisdom of the ages and from fresh experience, they understood the better angels of our nature, and the less admirable qualities of human beings entrusted with power.

The Framers believed in free markets, rights of property and the rule of law, and they set these principles firmly in the Constitution. Above all, the Framers enshrined in our founding documents, and left to our care, the principle that rights come from our Creator and not from our government.

We developed institutions that allowed these principles to take root and flourish: a government of limited powers derived from, and assigned to, first the people, then the states, and finally the national government. A government strong enough to protect us and do its job competently, but modest and humane enough to let the people govern themselves. Centralized government is not the solution to all of our problems and – with too much power – such centralization has a way of compounding our problems. This was among the great insights of 1787, and it is just as vital in 2007.

The federalist construct of strong states and limited federal government put in place by our Founders was intended to give states the freedom to experiment and innovate. It envisions states as laboratories in competition with each other to develop ideas and programs to benefit their people, to see what works and what does not.

This ingenious means of governing a large and diverse nation prevailed for more than a century. But today our Constitution and the limited, federalist government it established, are considered by many to be quaint or out of touch with the world we live in, to be swept aside by political expediency.

The Supreme Court sometimes ignores the written Constitution to reflect its view of the times. So does Congress, which routinely forgets that our checks and balances, the separation of powers and our system of federalism are designed to diffuse power and protect the liberties of our people. Before anything else, folks in Washington ought to be asking first and foremost, “Should government be doing this? And if so, then at what level of government?” But they don’t.

The result has been decades of growth in the size, scope and function of national government. Today’s governance of mandates, pre-emptions, regulations, and federal programs bears little resemblance to the balanced system the Framers intended.

This in no way diminishes the important role played by the national government, including ensuring our national security, and regulating interstate commerce to promote free markets. Indeed, a commitment to federalism would help the federal government do a better job in addressing national emergencies and emerging threats, because it could focus on these issues rather than on everything else it is trying to do. A proper regard for constitutional boundaries would also go a long way in avoiding the arguments that follow when Washington acts by decree, disregarding the elected representatives of the fifty states.

You know better than anyone how involvement from Washington affects nearly every policy, program, and aspect of your jobs. But beyond the nuisance of duplicative state and federal requirements, one might wonder if a division of responsibility between the federal government and the states is still important. The answer must be a resounding yes.

Federalism is not an 18th century notion. Or a 19th century notion. It retains its force as a basic principle in the 21st century, because when federalism is ignored, accountability, innovation, and public confidence in government at all levels suffer.

It is as true today as it ever was: the closer a government is to its people, the more responsive it is to the felt needs of its constituencies. Too often, however, state and local leaders have to answer to federal bureaucrats first and their constituents second. When the federal government mandates a program that states and localities are forced to implement, or when a federal grant program is created to fund a specific state or community need, it blurs the lines of accountability.

Who answers to the people if a program fails? The federal government will point to state authorities carrying out the program; the states will point to the federal government, which came up with the program in the first place. And in the end no one is more confused than the people the program is supposed to be serving, who can’t even say for sure who is responsible for what. This does not argue against all federal programs but it does require the recognition that there, indeed, are trade-offs.

Back in my days in the Senate, I found myself on the short end of a couple of 99 to 1 votes. They involved issues that had been under the purview of states for over 200 years. I asked why we should federalize what rightly were state and local issues.

I’ve been saying it for years, and it bears repeating: what works in Tennessee may not work in Nebraska and may be different from what succeeds in Oregon. That’s why President Ronald Reagan compared federalism to letting a thousand sparks of genius in the states and communities around this country catch fire. It’s not a perfect system, but it works a lot better than the alternative of central planning.

We need to allow local authorities to apply their own good ideas and use their own good judgment. Each state can find its own way, learning from the successes and failures of the others. There is a wealth of creativity and initiative out there in the states, and often the best ideas in Washington started out as state initiatives.

A good example of this early in my Senate service was welfare reform. We were warned that terrible things would happen if we went forward with a bill – a fundamental commitment would be abandoned and, among state governments, a “race to the bottom” would begin.

But key to our approach were elements of welfare reform that had proved successful in various states, such as Colorado, Michigan and Wisconsin. The result was a law that allowed us to better meet our commitments to our fellow citizens. It was one of the great political successes of the 1990’s, because Washington – for once – had the good sense to learn from state and local authorities and empower them in return.

When you hold firm to the principles of federalism, there’s another advantage: our federal government can better carry out its own defining responsibilities – above all else, the security of our nation and the safety of our citizens. Sometimes I think that our leaders in Washington try to do so many things, in so many areas, that they lose sight of their basic responsibilities.

We saw some improvement in the post-1994, “Contract with America” takeover of Congress – strings to federal programs were cut, more federal programs were being turned over to states, historic legislation to reduce unfunded mandates became law, and we rolled back the Clinton anti-federalism executive order. But in recent years we’ve seen backsliding.

The recent immigration bill was a case in point. That bill failed, and it failed for good reason. The federal government simply had no credibility on the issue.

The promises of the 1986 immigration bill have not been fulfilled. Current laws have not been enforced. The federal government has been failing in its fundamental responsibility to control the borders. Worse, when state officials have tried to act with reforms of their own, federal authorities have gotten in the way. In the end, many in both parties in Congress have learned a lesson: promises about immigration reform aren’t worth much unless you have credibility. And in this case there’s only one way that credibility can be regained. Federal leaders must do their job and secure the borders of the United States.

Law enforcement in general is a matter on which Congress has been very active in recent years, not always to good effect and usually at the expense of state authority. When I served as a federal prosecutor, there were not all that many federal crimes, and most of those involved federal interests. Since the 1980’s, however, Congress has aggressively federalized all sorts of crimes that the states have traditionally prosecuted and punished. While these federal laws allow Members of Congress to tell the voters how tough they are on crime, there are few good reasons why most of them are necessary.

For example, it is a specific federal crime to use the symbol of 4-H Clubs with the intent to defraud. And don’t even think about using the Swiss Confederation’s coat of arms for commercial purposes. That’s a federal offense, too.

Groups as diverse as the American Bar Association and the Heritage Foundation have reported that there are more than three thousand, five hundred distinct federal crimes and more than 10,000 administrative regulations scattered over 50 section of the U.S. code that runs at more than 27,000 pages. More than 40 percent of these regulatory criminal laws have been enacted since 1973.

I held hearings on the over-federalization of criminal law when I was in the Senate. You hear that the states are not doing a good job at prosecuting certain crimes, that their sentencing laws are not tough enough, that it’s too easy to make bail in state court. If these are true, why allow those responsible in the states to shirk that responsibility by having the federal government make up for the shortcomings in state law? Accountability gets displaced.

Now, there are plenty of areas in criminal law where a federal role is appropriate. More and more crime occurs across state and national boundaries; the Internet is increasingly a haven for illegal activity. A federal role is appropriate in these and other instances. But today the Federal Bureau of Prisons has quadrupled in size in little more than 20 years.

Perhaps the clearest example of federal over-involvement in state and local responsibilities is public education. It’s the classic case of how the federal government buys authority over state and local matters with tax-payer money and ends up squandering both the authority and the money while imposing additional burdens on states.

Between 1970 and 2005, federal spending on education increased nearly 150 percent without results to match. The No Child Left Behind law itself increased federal funding by some 26 percent, while creating 50 new educational programs nationally, imposing almost 7 million hours and more than 140 million dollars in compliance time and costs. The classrooms of America, where the learning actually takes place, receive but 61 cents out of every tax-payer dollar appropriated.

A little more federalist confidence in the wisdom of state and local governments might go a long way toward improving America’s public schools. The most encouraging reforms in education are occurring at the local level, with options like charter schools. And often the best thing Washington can do is let the states, school districts, teachers and parents set their own policies and run their own schools.

It is appropriate for the federal government to provide funding and set goals for the state to meet in exchange for that funding. However, it is not a good idea for the federal government to specifically set forth the means to be used in order to reach those goals. Adherence to this principle would make for fewer bureaucracies, fewer regulations, and less expense, while promoting educational achievement. There are bills pending in Congress that would move us in this direction, and I hope Congress gives them the attention they deserve.

Beyond specific policies, what’s needed are some basic rules to restrain the federal rule-makers.

A good first step would be to codify the Executive Order on Federalism first signed by President Ronald Reagan. That Executive Order, first revoked by President Clinton, then modified to the point of uselessness, required agencies to respect the principle of the Tenth Amendment when formulating policies and implementing the laws passed by Congress. It preserved the division of responsibilities between the states and the federal government envisioned by the Framers of the Constitution. It was a fine idea that should never have been revoked. The next president should put it right back in effect, and see to it that the rightful authority of state and local governments is respected.

It is not enough to say that we are “for” federalism, because in today’s world it is not always clear what that means. What we are “for” is liberty for our citizens. Federalism divides power between the states and government in Washington. It is a tool to promote freedom. How we draw the line between federal and state roles in this century, and how we stay true to the principles of federalism for the purpose of protecting economic and individual freedom are questions we must answer. Our challenge – meaning the federal government, the states, our communities and constituents – is to answer these questions together.

I believe there are many ways a president can be a federalist. No candidate or president will be 100% consistent, but if a President Thompson vetoed even half of the bills that imposed unfunded mandates on the states, or usurped rightful state powers, we would be in much better shape than we’re in today.

Here’s an example from his Senate career that I believe is pertinent to this discussion. In the wake of Columbine, there was intense pressure for Congress to “do something.” As a result, the senate passed a major anti-gun youth violence initiative. Thompson was one of only 25 senators to vote against it:
http://www.senate.gov/legislative/LIS/roll_call_lists/roll_call_vote_cfm.cfm?congress=106&session=1&vote=00140

And here is what he said in the debate on the Senate floor:

The Senator from Tennessee is recognized.

Mr. THOMPSON. I thank the Chair. I thank the Senator from Utah and I congratulate him for his long work in this area. While I cannot support this legislation, it is certainly better than much I have seen in this area. I know he and Senators SESSIONS, BIDEN, and others, have spent a lot of time on this. I congratulate them for it.

Mr. President, I rise not to debate any particular amendment. There has been a lot of good discussion as to the grants, the programs, and as to the various amendments and details of what we should do and how much money we should spend on various programs.

I rise not to address that because I have a significant problem with the entire concept. I believe that our approach with regard to youth violence here is misguided.

First, I will address basically what this bill does. Among other things, it makes it easier to prosecute juveniles in Federal criminal court. We have from 100 to 200 prosecutions a year of juveniles in Federal court. It is a minuscule part of our criminal justice system. In 1998, there were 58,000 Federal criminal cases filed involving 79,000 defendants. As I say, there were only 100 or 200 juvenile Federal crime cases among that group. This bill would make it easier to bring what has traditionally been a State matter into the Federal system. It makes it easier to try a juvenile as an adult. It would allow juveniles as young as 14 years of age to be tried as an adult for violent crimes and drug offenses—drug offenses, again, that are of the street crime category, where we have laws on the books in every State of the Union. It makes more local street crime Federal offenses—recruiting gang members and things of that nature. It allows the Attorney General to send in a Federal task force if she deems it necessary.

Then there is an array of programs and grants that this bill sets forth: Educational programs, educational grants for dropout prevention, school violence, restitution, child abuse, probation enhancement, mentoring programs, drug abuse, gang prevention, gun prevention, job training, afterschool activities, family strengthening, evaluation programs. Then this bill requires in a few instances, and in a few instances encourages, States to do certain other things if they want to participate and get this grant money and program money. It encourages boot camps, sentencing of juveniles who are as young as 10 years old as adults, encourages graduated sanctions, and encourages States to set up various kinds of programs for victims of juvenile crime. That is required if the States want this money. It requires communities to establish coalitions to replicate other communities. In other words, it requires coalitions of groups of law enforcement officers to get together and do some of the things that have been done in other
communities where they apparently have had good results.

Then we have seen research amendments with regard to crime in schools, establishing of hotlines, and increasing the penalties for various things. We have extended, by amendment, the 1994 crime bill that will spend about $31 billion over the next 5 years. This bill does all of these things.

Mr. President, it is a tremendous conglomeration of grants and programs and mandates, whereby we spend additional billions of dollars on matters that are being, or should be, covered by State and local laws, or that should be handled by local governments—such things that would be anticrime measures, tough on crime measures; or we are dealing with areas in which we really don’t know what we are doing, with all due respect, as a Federal Government. With that, I am referring to basically prevention programs.

Basically, what we try to do is either get tough on crime programs, increasing penalties, and federalizing additional offenses, on the one hand, or coming in with prevention programs designed to reach young people before they get in trouble. Both are laudable goals. But not too long ago, I chaired the Youth Violence Juvenile Justice Subcommittee of the Judiciary Committee. We had extensive hearings. It is a subject that we are all concerned about. We are looking for solutions. I came away with the distinct feeling and impression that we need to concentrate more on research and evaluation of the underlying problems of juvenile violence. There is no question but that these are deep-rooted, social, complex problems about which we know very little.
I believe there is one thing the Federal Government does probably better than anybody else, and that is research and evaluation. We have the resources and we can get the capability and we can make the long-term commitment if we desire to come up with evaluation programs over a period of time to really determine what kind of programs work. We spend all of this money, we put forth all of these programs, and we really have no idea what is working.
We have 132 Federal criminal juvenile justice programs on the books today. I daresay we have very little idea what is really working and what is not working. We have another tragedy, so we double the money with regard, in many instances, to the same programs we have already.

Professor Alfred Blumstein was a witness before our committee. He is a professor at Carnegie-Mellon University. He talked about the research and evaluation that was needed. You could not listen to him without coming away with a certain feeling of humility about how little we know regarding this matter. He said:

The last 25 years has seen a considerable accumulation of research findings and insights that were not available earlier. Those research findings, however, reflect only a tiny portion of what we need to know to make effective policy and operational decisions in each of the many areas relating to juvenile violence.

He said:
There have been some evaluations of various kinds of rehabilitation programs, and these are encouraging, but we have very little in the way of evaluation of prevention programs. This is partly because so little has been done, but also because it is very difficult to measure the effects of programs whose effects may not be observed for a decade or more.

In other words, what he is saying is, in order to have an evaluation of a research program worth its salt, we need to set it up for a decade or more.

He goes on to say:
..... Thus, while it is clear that much important research has been conducted over the past decade, it is also clear that we are still at an extremely primitive stage of knowledge regarding violence, especially for directing focused action, and that much more still needs to be done.

He says:
..... we need much more and better information on the development and the nature of criminal careers .....

He goes on and on and says:
..... The major growth in juvenile violence is not only of concern itself, but it is symptomatic of many key aspects of juvenile development that need major attention. The knowledge base to address these issues is remarkably thin in terms of knowing how best to intervene in these developmental processes.

So, Mr. President, instead of passing additional laws, additional get-tough-on-crime measures, instead of establishing a Federal entity that is sufficiently funded where there is a commitment over many, many years, instead of focusing on research and evaluation before we go about implementing these policies, we are now coming up with the same old responses that we have had in the past.

In this bill, there is some research and evaluation provisions that I think are very good; in fact, some of the things we worked on in times past when I was on the Judiciary Committee. But it is minuscule in comparison to what we need. Research and evaluation programs are scattered out among the States, a little bit here and there. We need a long-term Federal commitment in the one area where the Federal Government does it best—for research and evaluation of programs. We can see what works—which of these 132 Federal programs are working—and then be a clearinghouse for State and local governments so they can get the benefit of that knowledge, and they can go back and implement their own programs, instead of us instituting all of these grants and all of these programs directing States to do some things, and encouraging States to do other things, thinking that we have answers that we do not have. We are getting the cart before the horse because of the tragic circumstances we are faced with.

We know now that some of these programs are very questionable in terms of results. The DARE program, the GREAT program, some of the mentoring programs—we simply know that in some cases there is absolutely no objective data that indicates they are doing any good, and in some cases there is expert testimony that in fact they are doing some bad things.

We cannot sit up here and have things occur to us that sound good to us and assume they are going to work out in real life. That is how we got the airbags that killed children. That is how we got the program of asbestos removal that we now know was the wrong way to go about that problem. We need to have a little humility as we approach this problem.

We encourage things. There are some amendments, such as counseling programs for juvenile violence in schools, and so forth. I understand they have a gymnasium full of counselors out there in Colorado now that people are not using. We encourage boot camps for juveniles as adults when we know now that in some cases juveniles treated as juveniles will get more than they do being treated as adults.

We want to pass additional gun laws. Every State in the Union has laws against children taking guns to school. We came in and overlaid that with Federal law that made it a Federal offense for kids to take guns to school. Now we have State laws and a Federal law.

Now we have had a tragedy. And goodness knows what the next batch of laws will be that portend to address this.
When I see statements made that by this bill we are giving our children back their childhood, or we are empowering parents to be decent parents, it concerns me that we may really believe that, because we do not have that ability, we do not have that power, we do not have that knowledge, or know-how.

What is the underlying philosophy for Federal involvement in this area, or Federal control in some cases? Is it expertise? Do we have more expertise on the Senate floor than out among the State and local people who deal with this problem every day?

I doubt it, because we keep coming up with the same old programs and adding one every once in a while. We have the waterfront covered as far as programs are concerned. I can’t think of a program that has not been covered or funded in some way.

Is it because we have the money? Well, yes. We do have the money, because more and more we are depriving States and local governments of their sources of revenue, bringing it to Washington, then doling it back to them and telling them how to spend it, as if we knew.

In this bill we have $450 million for juvenile accountability block grants, $75 million for juvenile criminal history upgrades, $200 million for challenge grants, $200 million for JJDPA prevention grants, $40 million for the National Institute for Juvenile Crime Control and Prevention, of which $20 million would go to evaluation research, $20 million for gang programs, $20 million for the demonstration programs, $15 million for mentoring programs.

I defy anyone to point out to me which one of these programs is working or not working of the ones that we already have on the books that basically track these same kinds of efforts.

Is the federalization of this matter because the problem is bigger and, therefore, we have to address it? I don’t think that is the case. We continue to federalize matters that are so insignificant that we don’t even prosecute them once they get on the books.

We now have Federal laws with regard to animal enterprise terrorism, theft of livestock, and odometer tampering. There has been a total of four prosecutions nationwide for all three of those acts.

Now we have a horrendous incident out in Colorado, which disturbs all of us. But the fact of the matter is that less than 1 percent of youth homicides occur in schools.
Deaths by homicide is the second leading cause of deaths among children, second to accidents. And much of that has to do with driving while intoxicated and things of that nature.

Mr. President, the 10th amendment was put in the Constitution for a reason. The Federal Government ought to do the things the Federal Government is good at and leave the States alone to do the things the Constitution gives them under the Constitution. There is no plenary Federal law enforcement power under the Constitution.

We think we have a good result up here with a program in Boston, or wherever, so that we want to authorize the Attorney General to go in and put that program in other places. If it were a good program, logic would extend it to every place in the country, which means a Federal police power. And we do not want that.

We held federalism hearings the other day. We had a consensus from Democrats and Republicans, liberals and conservatives, law enforcement officers and defense lawyers. And they are all concerned about the trend toward federalizing what essentially have been State and local matters for more than 200 years.

There were 1,000 bills introduced in the 105th Congress. A lot of them had to do with juvenile crimes. No one knows actually how many Federal crimes are on the books now; the statutes are so complicated. Some people say 3,000. But with the administrative regulations, and so forth, there are thousands and thousands of statutes and regulations that have criminal consequences. That is the wrong direction.

The Federal Government should cover things in the Federal criminal law that have to do with Federal people or property, and interstate transactions that are truly interstate. Local corruption conflicts, litigation of civil rights, and things of that nature; that is, the law enforcement side of the equation, that is the equation that the State and local governments have the responsibility for. If we take that away from them, either in one fell swoop or gradually, they will do a worse job of it in the future instead of a better job.

On the prevention side, especially with regard to juveniles, let us have a little modesty and acknowledge that we do not know the answers to these problems. Some of them we will never know. They are complex. They are inherent societal problems that we did not get into overnight; we will not get out of them overnight.
But I would suggest again that instead of spending these
billions of dollars—literally billions of dollars on top of billions of dollars—on programs about which we have no idea of their efficacy, what is working and what is not working, let’s scale that way back and put some money up here for some long-term research and evaluation for over a decade or so, so we can really tell what works. Let us be a clearinghouse and an example then for the States. We don’t have to dole out the money to them or suggest that they do this program or that program when we don’t know what we are doing. They can see what works and what doesn’t work.
On the grounds of the Federal Government properly doing what it should be doing, letting the States do their traditional job under the Constitution, and, second, on the grounds of a little bit of modesty in terms of crime prevention—and that is where it is as far as these juveniles are concerned, on the prevention side—we have to get to these kids earlier. But the fact of the matter is, we are scattered to the four winds, throwing billions of dollars at a problem without knowing what the solution is.

There is only one way that I see we can go, and that is more research for Federal evaluation and research, and in the meantime let’s hold our horses and not respond to the headlines—the most difficult thing in the world to do. But by getting out front and pretending we can do things we can’t do, we are setting the cause back; we are not advancing it.

I yield the floor.

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