Subjecting Justice to the Pocketbook

January 27, 1995|By GARRY WILLS

Chicago -- There is a certain surface plausibility for congressional action against ''unfunded mandates,'' legal burdens put on a state that entail financial burdens. But it is a deeply pernicious idea all the same. It subjects justice to the pocketbook in ways that allow ideological disagreement to mask itself as fiscal responsibility.

Look at some of the unfunded mandates that are being opposed. In California, Gov. Pete Wilson does not want to implement the motor-voter law to enroll people where they get and renew their automobile licenses. This adds to the expense of the licensing process, no doubt. It also allows Governor Wilson to oppose a measure that would place more Democrats than Republicans on the voter rolls -- an innovation his side lost when the matter was debated in Congress. Now he would like to win through the back door of invoking funding difficulties.

In Texas, the Brady Bill is being opposed because it adds to state expense for a check to be run on the criminal records of potential buyers of guns. Some in the state say that the Brady Bill requires too much tracking, checking and record-keeping -- but the National Rifle Association is given a ''double dip'' on defeating the Brady Bill by alleging its costs instead of debating its merits.

Imagine what Southerners could have done with the unfunded-mandates bill in the civil-rights days, saying it costs too much to desegregate facilities, to police demonstrations, to right old wrongs.

The proponents of the new measure like to focus on what they call silly government regulations, claiming that is the main target their opposition to unfunded mandates. But many of these laws must transcend state lines. When state A is dumping pollutants in the streams or air of state B, state B has no power to make state A pay the funds necessary to clean up its own effluents. Only the federal government can do that. The unfunded-mandates bill would give state A a veto on federal measures -- the very situation under the Articles of Confederation for which James Madison proposed the Constitution as a remedy.

Besides, when states start adding up what federal measures cost them, they do not balance this against economic benefits they derive from federal action. Theirs is a one-sided accounting. Federal money built the roads states use, giving their businesses a boost, giving them access to the goods of other states, giving them channels for the transport of their own goods to other buyers.

The federal government expends money that is mainly hidden -- the states benefit from national defense, from federal regulation of air safety, harbor safety, emergency relief. The traffic is two-way.

Even the term ''unfunded mandate'' is a bit of rhetorical sleight-of-hand. Most acts of legislation are unfunded when they pass. After a bill is considered on its merits (including economic merits), an appropriations bill of some sort is needed to implement it.

Calling federal legislation for the states ''unfunded'' is a gimmick. What Congress and the courts decide are rights belonging to each citizen -- whether to vote, to be safe from criminals who buy guns, or to have clean air and water -- that must be enforced, some at the federal level, some at the state, just as any right we have under the Constitution must be #F enforced.

6* Garry Wills is a syndicated columnist.

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