The State of the State

A funny thing happened on the way to a conference of the states

By JENNIFER HALPERIN

This summer we got a good look at how paranoia often drives the debate on federalism.

In the spring, support had been building across the country for a Conference of the States. (See Illinois Issues, March 1995.) The effort was spearheaded by Utah Gov. Michael O. Leavitt, who says he wants to restore balance between Washington and the states. But Leavitt warns that governors and lawmakers can't count on the courts or Congress — even in Republican hands — to deliver power back to the states. Instead, he says, state and local leaders will have to fight for it. That was the idea behind the conference.

If a majority of the state legislatures had agreed, the conference would have happened this summer or fall

Carrying military as well as political overtones, the growing movement designed to reverse the flow of power to the feds has been dubbed a "devolution." In fact, in his call for the conference, Leavitt points to The Federalist Papers, and to James Madison, who wrote that states should fight ambitious federal encroachments on their rights. He suggested conference delegates consider three possible paths toward restoring states' power:

• Give the states equal footing with Congress in proposing constitutional amendments;

• Give the states the power to overturn federal laws, except those dealing with defense and foreign affairs;

• Demand that the courts become the referee in disputes between national and state authorities.

If a majority of the state legislatures had passed a resolution of support last spring, the conference would have been held this summer or fall. Each state would have sent a five-member bipartisan delegation, and probably would have been expected to help pay for it.

Many Republicans and Democrats supported the conference, as did such national groups as the National Governors' Association, the National Conference of State Legislatures and the Council of State Governments.

At first, opposition to the conference came primarily from so-called "liberal" public officials. They remember the term "states' rights" being used as justification during the 1950s for denying civil rights to African Americans — especially south of the Mason-Dixon line.

But, ironically, it wasn't the liberals who did in the conference. Instead, it was activists on the right — who feared the conference would turn into a full-blown constitutional convention, ending in further erosion of the states' power.

"The promoters [of the conference] want fundamental, structural, long-term change, and that's pretty radical," says Tricia Katzen, a consultant to the conservative Liberty Lobby in Washington, D.C. "They wanted to rush this through without acknowledging the U.S. Constitution already gives states the opportunity to fight federal intrusion."

Katzen says members of such diverse groups as the John Birch Society, United We Stand and the American Civil Liberties Union oppose the conference because they don't want to see the Constitution changed. So last spring they mobilized a lobbying effort that deluged lawmakers throughout the country with phone calls, letters and faxes, managing to dissuade those who were otherwise neutral from backing the conference.

Although 10 states had approved resolutions favoring the conference by February, only 14 got a resolution through both chambers by the end of their legislative sessions. In 21 states, including Illinois, it was defeated outright or delayed. Rep. Tom Ryder, a Republican from Jerseyville, introduced the resolution in the GOP-controlled Illinois legislature, but it was tabled in committee.

Conservatives opposition to the conference threw Illinois' top Republican. "I was disappointed — and surprised — that the right wing saw this as some kind of conspiracy," says Gov. Jim Edgar, who supported the conference. In his State of

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the State message this year, he had urged the General Assembly to help redesign federalism and pass the resolution. "I thought if it were going to be opposed by anyone it would be opposed by the liberal bloc."

For those interested in strengthening states' rights, the conference sounded sensible. A major goal was to empower states to initiate changes in the U.S. Constitution. Under the proposal, a state-initiated amendment would need approval from three-fourths of the legislatures. Congress would then have two years to reject the proposed amendment by a two-thirds vote in both chambers.

A second goal was to enable the states to overrule Congress' power to write laws. The idea was that two-thirds of the state legislatures should be able to kill federal laws, unless they pertain to national defense or foreign policy. Katzen calls that idea radical too. "It opens the door for a lot of meddling," she says.

Still, the proposal appeals to some state lawmakers and governors who see themselves as unduly burdened by federal mandates. Federal laws on motorcycle helmets and voter registration have gotten the most attention lately. In truth, states have learned they have little recourse in fighting mandates from Washington. Most often, they simply jump to the command of the federal purse strings.

Conference advocates also wanted to take another look at the 10th Amendment. That amendment reserves to the states all power not specifically delegated to the federal government.

Now, if states believe the federal government has overstepped its power, they must lobby Congress for change. States' rights advocates say that's like asking the fox to guard the henhouse. Instead, they want courts to make the call in disputes between the states and Washington. They believe the states deserve to be treated as more than just another special interest group.

Now that the conference is on hold, supporters of states' rights are back at square one — sitting around complaining about overblown federal power. Maybe a conference of the states as it was planned wasn't the way to move forward, but the states' rights factions ultimately need to get together. The issue of growing federal power needs a full and open debate.

The mean season: Republican Gov. Jim Edgar spends his summer getting 'tough on crime' Gov. Jim Edgar used his bill-signing authority over the summer to further a Republican agenda and boost the political stock of some of his Capitol colleagues. He waited until the last moment to take up the controversial "truth in sentencing" measure proposed by GOP Attorney General Jim Ryan. Edgar signed it, then added a flourish of his own by moving to privatize prison construction. The idea was promoted during the legislative session by Republican Rep. Al Salvi of Libertyville. (See Illinois Issues, May 1995.) Under the new sentencing law, which Edgar signed August 20, first-degree murderers will have to serve 100 percent of their sentences. Felons convicted of other serious offenses, including attempted murder or criminal sexual assault, would have to serve at least 85 percent of their time. Typically, prisoners have been serving about half of their sentences. Edgar cited the murder this summer of 10-year-old Christopher Meyer. The man arrested in connection with the crime had served time for the 1981 murder of a 5-year-old Bradley girl. "[This new law] will build upon other tough, anti-crime measures we have enacted over the last several years," Edgar said. "But the horrifying tragedy in Kankakee County tells us that we must do more." Corrections officials argued the measure will further crowd Illinois' prisons. They estimated the new law would require nearly 4,000 extra prison beds and cost more than $320 million. But Edgar said his plan to privatize construction will add thousands of beds over the next several years. The dollars would come out of the corrections department's budget. Edgar said it would be irresponsible for him to call for stiffer sentences for violent criminals without dealing with the state's prison overcrowding crisis. He said under his plan, private firms would build the prisons. The state would then take them over on a lease-purchase basis and run them with state personnel. Using the opportunity to jab Democrats, Edgar said the plan can be launched without legislative approval. Prison construction came to a halt during last spring's session because approval for the necessary bonds required more votes than Republicans could muster on their own. Edgar also unveiled legislation aimed at keeping murderers and sex offenders in prison. Among the measures is one creating the offense of predatory aggravated sexual assault against a child. Under the proposal, a felon convicted of brutal sexual assault on someone under 13 would be sentenced to life in prison without parole, even if the victim survives. Earlier, Edgar signed Ryan-backed proposals that stiffen penalties for murder of a child under 12, aggravated battery of a child and use of threats or force to recruit gang members. One measure mandates life in prison without parole for those convicted of first-degree murder of children under the age of 12 when the death penalty is not imposed. A second measure nearly doubles the required prison term for aggravated battery of a child. A third mandates prison sentences for adults convicted of using force or threat of force to recruit gang members. Edgar also signed legislation allowing counties to set up military-style boot camps. The camps are designed to reform nonviolent criminal offenders by imposing strict discipline and offering schooling and drug abuse treatment. The state currently runs three boot camps. Advocates applaud the camps' low recidivism rate, but experts caution more job training and follow-up drug counseling are needed. Jennifer Halperin

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