VOLUNTARY PROGRAMS

Why is the number of unfunded mandates so much fewer than is commonly reported? The answer lies in the definition of an unfunded mandate, which UMRA generally classifies as a federal program that meets both of the following criteria.3

• Mandate. "Any provision in legislation, statute, or regulation that would impose an enforceable duty on state, local, or tribal governments...or that would reduce or eliminate the amount of funding authorized to cover the costs of existing mandates. Duties that arise as a condition of federal assistance or from participating in a voluntary federal program are not mandates."4
• Unfunded. "Direct federal funding is less than the amount state, local, and tribal governments would be required to spend to comply with the mandate. Such costs are limited to spending that results directly from the enforceable duty imposed by the legislation rather than from the legislation's broad effects on the economy. "5 An unfunded mandate does not violate UMRA unless the combined annual cost to state, local, and tribal governments exceeds $58 million (inflation-adjusted from $50 million in 1996), which is approximately $1.2 million per state.

The distinction between voluntary and mandated programs is important. Its central principle is that states should be free to spend their own tax revenues as they see fit, rather than be forced to fund unwanted programs imposed by Washington.

Voluntary programs, by definition, are not imposed on states. They are proposals by the federal government of how states could perform a certain function. If a state likes the federal model, Washington offers to help pay the costs of implementing it. If a state dislikes the model, it can opt out and remain independent of federal meddling.

The 2001 No Child Left Behind Act is as an example of a voluntary program. States have the authority to decide how to educate their disadvantaged children. The federal government has created its own model program, the No Child Behind Act, and offered to subsidize the program's cost for any state volunteering to adopt it. The states that have criticized the federal model or found the federal funding insufficient are free to opt out and run their own programs instead.

DE FACTO MANDATES?

Some call these programs "de facto mandates" because no rational state would opt out of the federal programs--the federal money more than justifies the federal strings attached. In other words, states unanimously enrolled in these programs because the deals were too good to pass up, not because Washington required it.

States have grown resentful of the federal government--despite receiving $400 billion per year in federal funding--because they now consider themselves entitled to this money with no strings attached. States expect federal money to subsidize their own education and homeland security visions. When Washington instead requires that federal dollars be used only for federally approved purposes, states feel cheated.

For example, states have received federal funding for educating disadvantaged children since 1965. Flexibility in the original federal law allowed states significant control over how those federal education dollars were spent. Over time, states came to feel entitled to federal money subsidizing their own education programs. When the 2001 No Child Left Behind Act placed different restrictions on how states spend this federal money (which was substantially increased), they could no longer allocate as much federal money to their own preferred education programs. Somehow, this reassertion of authority by Washington over how federal money is spent became known as an "unfunded mandate," despite the program being neither unfunded nor mandated. States still consider this federal funding worth more than the new restrictions, as no state has yet opted out of the program.

There are arguments for and against open-ended, unregulated grants to states. States, however, are not entitled to have their own programs funded by Washington. A comparison can be made with welfare reform: Governments have the right to require welfare recipients to work in return for receiving public assistance. No one is entitled to taxpayer dollars, and anyone who considers the conditions overly burdensome may opt out of the system. The same principle applies to state governments receiving federal money.

State officials are being hypocritical. They demand total control over the spending of their own tax revenues, without federal meddling. However, their claims of "entitlement" to federal dollars with no strings attached challenges Washington's right to control how federal tax revenues are spent. In effect, states are attempting to impose an unfunded mandate on Washington.

UNFUNDED MANDATES BEFORE 1996

UMRA does not affect the unfunded mandates enacted before 1996. For example, Washington requires that states provide an adequate level of special education funding, but furnishes only a portion of the cost. The Environmental Protection Agency mandates that state and local government enforce federal environmental regulations without sufficiently funding their cost. Washington needs to reform these unfair and burdensome unfunded mandates. States, however, cannot legitimately blame decades-old unfunded mandates for budget crises that began only three years ago.

Medicaid, the largest unfunded mandate, requires deeper analysis. Federal law mandates that states run Medicaid programs and sets minimum eligibility and benefit standards, but states have the option to expand eligibility and benefits beyond the federal minimum. The federal government then reimburses states for approximately half of the program's $200 billion total annual cost. Washington deserves much of the blame for designing an expensive and inefficient program and then imposing it on states without providing full funding.

Yet, states have made the program even more expensive. Approximately 60 percent of the average state's Medicaid budget is for optional services and populations beyond the federal minimum.6 These optional services--such as covering weight-loss help and substance-abuse treatment--have played a large role in the program's 165 percent increase since 1990. If states are now feeling the pinch of rising Medicaid costs, they have the authority to reduce the non-mandated eligibility and benefits. They could also support President Bush's proposal to grant states increased flexibility to modernize their Medicaid programs. Current high Medicaid costs are not all Washington's fault.

CONCLUSION

Clearly, the federal government is obligated to reimburse states for costs it imposes on them. However, Washington is not obligated to pay all the costs for federal-state partnerships that states freely choose to enter. Although state budget struggles are real, they were not imposed by Washington. No state has been required to implement the No Child Left Behind Act. States are spending more on homeland security because they wisely made it a priority, not because of excessive Washington mandates to do so.

There is a simple solution to the fractured relationship between Washington and the states:

1. States should have complete control over how their tax dollars are spent. The federal government should reimburse states for costs imposed on them.
2. Washington should have complete control over how tax dollars it receives are spent. If states willingly accept federal dollars, they should also accept the federal strings attached.

Brian M. Riedl is Grover M. Hermann Fellow in Federal Budgetary Affairs in the Thomas A. Roe Institute for Economic Policy Studies at The Heritage Foundation.