Capitol Ideas | 2016 | Issue 2 | The Federal Agenda and the States

MAR | APR 2016

SPOTLIGHT: The Federal Agenda and the States

A Strong State-Federal Relationship for Effective Governance

Innovations in Workforce Development Federalism in the Courts: Past, Present, Future Regulations 101 Public Distrust in Government

“Many national policies, from health care reform to protecting the environment, only work effectively when implemented well by states, and state initiatives work best when complemented by federal resources. … Good policy requires a strong working relationship between state and federal officials.”

DELAWARE GOV. JACK MARKELL 2016 CSG National President, 2003 CSG Toll Fellow

P LU S : A Day in the Life of N ebrask a Sen. Beau McCoy

bright ideas. bold leaders. better states.

2016 csg henry toll f ellowship p rogram aug. 26–31 | lexington, ky.

For more information and to apply, visit www.csg.org/TollFellows Applications will be accepted through April 15, 2016

March/April

THE FEDERAL AGENDA & THE STATES © Boris Lyubner / Illustration Works / Corbis

ON THE COVER Delaware Gov. Jack Markell serves as the 2016 national president of The Council of State Governments. He believes that a strong working relationship between state and federal officials must be a means to achieving effective governance.

(Photo by Elisa Morris)

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SPOTLIGHT— THE PERFORMANCE PUSH

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Unfunded mandates and federal regulations cost states, cities and the general public between $57 billion and $85 billion each year. But how, exactly, are federal rules made? CSG Federal Affairs Director Andy Karellas provides a primer.

A new Capitol Ideas feature, CSG takes a look at “A Day in the Life” with CSG 2016 National Chair Sen. Beau McCoy of Nebraska.

Ask some Americans about the federal government and they bluntly describe its flaws and failings. Ask them about what the government should do, and they tell a very different story. Carroll Doherty explains the results of a recent Pew Research Center national survey on public distrust of government.

SPOTLIGHT— FOLLOWING THE RULES

FEATURE— A DAY IN THE LIFE …

SPOTLIGHT— DISTRUSTING GOVERNMENT MAR/APR 2016 | CAPITOL IDEAS

Federal grants to states often come with strings attached, including performance measurement requirements. While these requirements can be difficult for states, CSG Senior Fellows Katherine Barrett and Richard Greene say there are some important benefits, too.

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MAR/APR

FEATURES

4 WHAT’S HAPPENING AT CSG 5 THEY SAID IT | federalism 6 REGIONAL ROUNDUP | east 7 REGIONAL ROUNDUP | south 8 REGIONAL ROUNDUP | midwest 9 REGIONAL ROUNDUP | west 32 A DAY IN THE LIFE | nebraska sen. beau mccoy

© AP Photo / Tony Dejak

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© Twildlife / Dreamstime.com

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46 STATED BRIEFLY | csg and affiliate news 48 SHOUT OUT | former mississippi rep. bobby moak

SPOTLIGHT: The Federal Agenda and the States

10 IN THE KNOW: ENGAGING FEDERAL AGENCIES Navigating federal agencies is never easy, but this problem may be exacerbated during an election year when a political transition is underway and key leadership positions are often unfilled.

11 NAVIGATING THE FEDERAL MAZE

The federal government can often feel labyrinthine for outsiders. To help states navigate the federal maze, CSG has created a list of key intergovernmental affairs liaisons for a variety of federal agencies.

13 THE PERFORMANCE PUSH

Federal grants to states often come with strings attached, including fairly stringent—and sometimes complicated—performance measurement requirements. While these requirements can be difficult for states, CSG Senior Fellows Katherine Barrett and Richard Greene say there are some important benefits, too.

MAR/APR 2016 | CAPITOL IDEAS

16 TRANSITIONING EDUCATION

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24 10 QUESTIONS: DELAWARE GOV. JACK MARKELL 38 FEDERALISM IN THE COURTS With a focus on strengthening the economy in his state, Delaware Gov. Jack Markell has led efforts to ensure workers are adequately prepared for the jobs of today. He believes that an effective partnership with the federal government—using a combination of federal resources to complement state innovation —can help achieve just that.

26 REINVENTING WORKFORCE PROGRAMS

States that received a portion of the $35 million in federal funds awarded last fall through the Workforce Innovation Fund, or WIF, are starting to put their proposed program innovations into action. Here’s a look at how three states—Kansas, Ohio and Pennsylvania—are working to develop systems to reinvent their workforce development programs.

30 FEDERAL SPENDING IN THE STATES

State officials are closely watching as the U.S. Department of Education releases more information on what the new act changes in accountability system requirements and funding mechanisms. But those changes won’t happen overnight.

Federal spending plays a significant role in state budgets and economies. In recent years, the percentage of state revenues coming from Washington, D.C., to the states has fluctuated, largely due to the end of stimulus dollars and the implementation of the Affordable Care Act.

18 FOLLOWING THE RULES

34 DISTRUSTING GOVERNMENT

Unfunded mandates and federal regulations cost states, cities and the general public between $57 billion and $85 billion each year. But how, exactly, are federal rules made? CSG Federal Affairs Director Andy Karellas provides a primer.

22 USING DATA TO REDUCE FRAUD

Major public benefits programs such as Medicaid are jointly funded and administered by the states and the federal government, but the states have the responsibility to identify instances of fraud. California, Massachusetts and Utah are expanding their use of data analytics to boost the efficiency of anti-fraud efforts and save taxpayer dollars.

Ask some Americans about the federal government and they bluntly describe its flaws and failings. Ask them about what the government should do—and how it actually performs—and they tell a very different story. Carroll Doherty explains the results of a recent Pew Research Center national survey on public distrust of government.

36 SEEING THE ROAD AHEAD

The Fixing America’s Surface Transportation, or FAST, Act—signed into law in December 2015—is the first long-term surface transportation bill passed by Congress since 2005. None were happier to see the bill pass than state transportation officials.

If you are interested in federalism, much of the action has been at the U.S. Supreme Court in the last few years. This is true of the court’s current term and will likely be true of the next few terms.

42 PARTNERSHIP ON PUBLIC LANDS

In September 2015, the U.S. Fish and Wildlife Service determined that threats to the greater sage-grouse had been sufficiently reduced to avoid its listing as a protected species under the Endangered Species Act. The decision was the result of a major conservation effort involving federal and state governments, private landowners and other stakeholders across the bird’s 11-state range.

44 STATE OF THE STATES

In January, governors across the country began setting the state policy agendas for the year through state-of-the-state addresses. CSG takes a look at the key issues in a sampling of state addresses, with more available at csg.org.

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CSG Director, Fiscal and Economic Development Policy jburnett@csg.org

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CSG Director, Federal Affairs akarellas@csg.org

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CSG Director, Health Policy dmiller@csg.org CSG Director, Transportation and Infrastructure Policy sslone@csg.org

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CAPITOL IDEAS, ISSN 2152-8489, MAR/APR 2016, Vol. 59, No. 2—Published bimonthly by The Council of State Governments, 2760 Research Park Dr., Lexington, KY 40511-8482. Opinions expressed in this magazine do not necessarily reflect the policies of The Council of State Governments nor the views of the editorial staff. Readers’ comments are welcome. Subscription rates: in the U.S., $42 per year. Single issues are available at $7 per copy. POSTMASTER: Send address changes to Capitol Ideas, Sales Department, P.O. Box 11910, Lexington, KY 40578-1910. Periodicals postage paid at Lexington, Ky., and additional mailing offices.

ANDY KARELLAS

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(continued) CSG Director, Education and Workforce Policy ewhitehouse@csg.org

CSG Director, Energy and Environment Policy ledmondson@csg.org

LISA MCKINNEY

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contributing writers LIZ EDMONDSON

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contributing writers ELIZABETH WHITEHOUSE

Copyright 2016 by The Council of State Governments. Periodicals postage paid at Lexington, Ky., and at additional mailing offices.

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Senior Policy Adviser jstockdale@csg.org

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The Council of State Governments

president GOV. JACK MARKELL, Delaware | chair SENATOR BEAU MCCOY, Nebraska | chair-elect SENATOR KELVIN ATKINSON, Nevada vice-chair SENATE PRESIDENT ROBERT STIVERS, Kentucky | immediate past chair SENATOR CARL MARCELLINO, New York

GOV. JACK MARKELL DELAWARE CSG National President

SEN. BEAU MCCOY NEBRASKA CSG National Chair

MNA GUY OUELLETTE QUÉBEC CSG East Co-Chair

MNA GUY LECLAIR QUÉBEC CSG East Co-Chair

REP. JOAN BALLWEG WISCONSIN CSG Midwest Chair

SEN. ROBERT STIVERS KENTUCKY CSG South Chair

REP. JEFF THOMPSON IDAHO CSG West Chair

executive director/ceo DAVID ADKINS (dadkins@csg.org) east director WENDELL M. HANNAFORD (whannaford@csg.org) | midwest director MICHAEL H. McCABE (mmccabe@csg.org) south director COLLEEN COUSINEAU (fitzgerald@csg.org) | west director EDGAR RUIZ (eruiz@csg.org)

MICHAEL H. MCCABE CSG MIDWEST DIRECTOR mmccabe@csg.org

COLLEEN COUSINEAU CSG SOUTH DIRECTOR fitzgerald@csg.org

EDGAR RUIZ CSG WEST DIRECTOR eruiz@csg.org

MAR/APR 2016 | CAPITOL IDEAS

DAVID ADKINS WENDELL M. HANNAFORD CSG EXECUTIVE DIRECTOR/CEO CSG EAST DIRECTOR dadkins@csg.org whannaford@csg.org

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what's happening at csg

Elect Excellence in State Governance With the election season well underway, all eyes are focused on the road to the White House–and statehouses–as we head to the polls for state and national primaries. It’s an exciting time for candidates and citizens, alike. And it’s an exciting time for CSG, as well, as we continue to provide the information and insights that state leaders need to achieve excellence in state governance through outstanding programming and networking opportunities.

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Application Deadline Approaching for 2016 Henry Toll Fellowship Program

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CSG to Lead Initiative on Workforce Development for People with Disabilities

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SSL Committee Accepting Legislation

Here’s what’s happening at CSG.

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Registration Open for 2016 CSG National Conference in Colonial Williamsburg, Va.

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Mark your calendar for the CSG 2016 regional meetings

Registration is now open for the 2016 CSG National Conference, Dec. 8-11 in Colonial Williamsburg, Va. Visit www.csg.org/2016nationalconference to register and for information on hotel accommodations, transportation, tours and sponsorship opportunities.

Don’t miss these opportunities to network with colleagues and explore targeted policy solutions for issues affecting your region.

MAR/APR 2016 | CAPITOL IDEAS

CSG South: 70th Southern Legislative Conference Annual Meeting July 9–13 | Lexington, Ky.

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CSG Midwest: 71st Midwestern Legislative Conference Annual Meeting July 17–20 | Milwaukee, Wis. CSG East: 56th Eastern Regional Conference Annual Meeting Aug. 7–10 | Québec City, Québec, Canada.

CSG West: 69th CSG West Annual Meeting Sept. 6–9 | Coeur d’Alene, Idaho.

CSG is accepting applications for the 2016 Henry Toll Fellowship Program, to be held Aug. 26–31 in Lexington, Ky. For 30 years, CSG has brought the nation’s top officials from all three branches of state government to the Bluegrass State for this intensive leadership development program, designed to foster personal assessment and growth while providing priceless networking opportunities. Apply online at www.csg.org/tollfellows by April 15 for the opportunity to be part of the 30th CSG Toll Fellows Class!

A national leader in workforce development issues facing state leaders, CSG has been awarded funding from the U.S. Department of Labor to work in partnership with the National Conference of State Legislatures to develop a national policy framework for workforce development and employability for people with disabilities in 2016. More than 54 million Americans have a disability, and a majority of individuals with disabilities are underemployed or unemployed. CSG looks forward to working with its members over the coming months to find meaningful policy solutions to improve labor participation and employment opportunities for individuals with disabilities. For more information about the initiative, contact Elizabeth Whitehouse, CSG director of education and workforce development policy, at ewhitehouse@csg.org.

The Council of State Governments’ Shared State Legislation, or SSL, Committee—formerly known as the Suggested State Legislation Committee—is now accepting legislation to be considered at its next meeting in Lexington, Ky., in May. To be considered, legislation must have been enacted in at least one state and address a current state issue of national or regional significance; provide a benefit to bill drafters; and provide clear, innovative and practical structure and approach.

To submit a bill for consideration, please send the relevant information to ssl@csg.org by March 18.

they said it

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

State-Federal Affairs

» Tenth Amendment to the U.S. Constitution

The powers delegated by the Constitution to the federal government are few and defined. Those which are to remain in state governments are numerous and infinite.” » Alabama Gov. Robert Bentley in his 2016 State of the State Address, Feb. 2.

I CERTAINLY BELIEVE THAT THERE NEEDS TO BE A HIGHER LEVEL OF FEDERAL ENGAGEMENT AROUND FEDERAL MANAGEMENT OF PUBLIC LAND.” » Oregon Gov. Kate Brown, as quoted by the Capital Press, discussing the federal government’s management of public lands in the West, following the occupation of the Malheur National Wildlife Refuge in Oregon.

If more Native American health care expenditures could be 100 percent federally funded—as the treaty requires—the state could save up to $67 million per year. That would be enough to cover fully the state’s costs to expand Medicaid. In the past, the federal government has not been receptive to fixing the cost shifting problem. … But now, the federal government is willing to listen. For the first time, we have the opportunity to solve this longstanding problem.” » South Dakota Gov. Dennis Daugaard, in a December 2015 weekly column, discussing negotiations with federal agencies to shift the state’s costs for Native American health care to the federal government, which would allow the state to pay for Medicaid expansion.

» Nevada Gov. Brian Sandoval, at an Environmental Protection Agency ceremony in September 2015 to announce the agency’s decision not to list the greater sage grouse as threatened or endangered. The decision followed a major multistate conservation effort involving federal and state agencies, private individuals and interest groups.

But so often, these debates, particularly in Washington but increasingly in state legislatures, become abstractions. …

It encourages the kind of ideological fealty that rejects any compromise as a form of weakness. And in a big, complicated democracy like ours, if we can’t compromise, by definition, we can’t govern ourselves.” » President Barack Obama, discussing the need for civility in American political culture at the Illinois State Capitol on the ninth anniversary of his presidential campaign announcement, Feb. 10.

MAR/APR 2016 | CAPITOL IDEAS

It’s a lot easier to fight than it is to work together. Now for me, this was almost as noble a goal as there could be, in order to avoid this listing and preserve this ecosystem.”

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regional roundup

The East CT • DE • MA • MD • ME • NH • NJ • NY • PA • RI • VT • NB • NL • NS • ON • PE • PR • QC • VI CONVERSION THERAPY New York Gov. Andrew Cuomo announced in February measures meant to eliminate conversion therapy, according to The New York Times.

Conversion therapy attempts to reverse same-sex attraction.

Cuomo’s plan includes prohibiting insurers in New York from covering the cost of the therapy for individuals under age 18. The New York State Health Department has already prohibited the use of Medicaid to pay for conversion therapy.

At least four other states have enacted laws banning conversion therapy on minors.

SMOKING AGE New Jersey Gov. Chris Christie did not act on a bill that would have made the state’s smoking age 21, according to the Associated Press. The age to buy tobacco products will remain at 19. The bill called for fining retailers up to $1,000 for selling cigarettes or other tobacco products, including e-cigarettes, to anyone age 20 or younger. Christie did, however, sign a bill that will ban the sale of liquid nicotine for electronic cigarettes unless the product is in child-resistant packaging.

to $145 million. The move from Fairfield, Conn., will take place in phases through 2018.

VEHICLE REGISTRATION In February, Connecticut Gov. Dannel Malloy called for legislation that would shorten the wait for motorists at the Connecticut Department of Motor Vehicles. The Hartford Courant reported that Malloy wants to allow private contractors, such as AAA, to provide motor vehicle registration services. Private contractors already are allowed to issue non-commercial driver’s licenses.

INCOME TAXES Delaware Gov. Jack Markell has signed a bill to make significant changes to the state’s corporate income taxes, according to The News Journal. The new law changes the way companies’ income taxes are calculated.

The rate was previously based on a company’s property, employees and sales in Delaware compared to the rest of the world. Now, however, income taxes will be based solely on sales.

MAR/APR 2016 | CAPITOL IDEAS

BUSINESS

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© Laughing Stock / Corbis

General Electric announced in January plans to move its national headquarters from Connecticut to Massachusetts, according to The Boston Globe.

Boston beat out several other cities that campaigned for the national headquarters, which will create about 800 jobs. The Boston Globe reported that city and state officials offered one of the best incentive packages in the state’s history, valued at up

For more on CSG East, visit capitolideas.csg.org and www.csgeast.org.

Rhode Island Cities Receive Federal Grant to Improve Public Housing Several Rhode Island cities have received federal grant money to fix up public housing. U.S. Sen. Jack Reed announced in February that 25 cities and towns would share $12.9 million in federal funds to develop, finance and modernize public housing, according to the Providence Journal.

The cities and towns to receive the grants—awarded to Public Housing Authorities through the U.S. Department of Housing and Urban Development’s Housing Capital Fund Program—include more than 9,400 public housing households.

“This federal funding will help Rhode Island housing authorities preserve affordable housing, build stronger neighborhoods, and put more contractors to work making necessary repairs,” said Reed, according to the newspaper.

Reed, who represents Rhode Island in the U.S. Senate, is the top Democrat on the appropriations subcommittee that oversees the housing program.

The Senate Appropriations Subcommittee on Transportation, Housing and Urban Development, and Related Agencies, has included $1.9 billion for the Public Housing Capital Fund and $4.5 billion for the Public Housing Operating Fund in the 2016 Omnibus Appropriations bill. The money will be used to support the operation and capital management of public housing stock across the country.

regional roundup

The South AL • AR • FL • GA • KY • LA • MO • MS • NC • OK • SC • TN • TX • VA • WV © ImageZoo / Corbis

AUTO MANUFACTURING

CLEAN POWER PLAN

Honda vehicles made in Alabama contributed to record sales in 2015. Sales of the Honda Pilot SUV, made exclusively in Talladega County, Ala., jumped by 25.1 percent year-over-year, The Anniston Star reported. The Odyssey minivan, manufactured at the same Talladega plant, had a 4.1 percent sales growth last year.

In total, the plant produced 349,386 vehicles in 2015.

The U.S. Supreme Court issued a stay on the U.S. Environmental Protection Agency’s Clean Power Plan, or CPP, on Feb. 9, which halts the agency from making rules to lower carbon emissions from the nation’s power plants, reported The New York Times. The U.S. Court of Appeals for the D.C. Circuit will hear oral arguments from more than two dozen states, including Alabama, Texas and West Virginia, that oppose the measure. The CPP aims to reduce overall carbon dioxide emissions to 32 percent below 2005 levels by 2030.

INTERMODAL GROWTH

Louisiana Requires Students to Apply for College Aid

DISABILITY EMPLOYMENT The Florida Legislature has approved a package of legislation that aims to help individuals with disabilities become economically independent. House Bill 7003 encourages state agencies to employ more people with disabilities and creates a program to teach financial literacy. Meanwhile, Senate Bill 672 creates scholarships to increase educational opportunities for children with developmental disabilities. Both bills were subsequently signed

by Gov. Rick Scott and will go into effect on July 1, 2016.

COTTON YIELDS Cotton yields in Georgia dropped significantly in 2014.

According to The Atlanta Journal-Constitution, the crop’s total value dropped below $1 billion last year, losing its designation as the state’s second-largest cash crop. Economists link this drop to a growing preference for synthetic fibers, such as polyester; changes in subsidy structures in the Farm Bill; and the lingering effects of China’s cotton-buying spree in 2011.

Georgia’s top agricultural commodities in 2014 were poultry ($4.5 billion), beef ($1.1 billion) and cotton ($965 million).

For more on CSG South, visit capitolideas.csg.org and www.slcatlanta.org.

MAR/APR 2016 | CAPITOL IDEAS

The Louisiana Board of Education now requires all students to apply for college financial aid in order to graduate from high school. Students must complete the Free Application for Federal Student Aid, or FAFSA, and the state financial aid application, or submit a non-participation form signed by a parent or receive a hardship waiver.

The Louisiana Department of Education estimates that students miss out on $54 million in federal and state aid each year by not completing the FAFSA. By requiring students to complete these applications, the state hopes to push more students toward college.

“Students can choose to apply for FAFSA or choose to not apply; but everyone is going to make a choice. There will be no more slipping through the cracks,” said Barry Landry, director of public affairs at the state Department of Education.

The state operates a nearly $300 million merit-based scholarship program that provides free in-state tuition to graduates with qualifying GPAs and ACT scores. To be eligible for this scholarship, students also must complete the FAFSA or the state financial aid application. The Daily Reveille reported that less than half of all eligible students complete the FAFSA. According to the National Center for Higher Education Management Systems, the state’s graduation rate already outpaces the national average of 62 percent by about two points. By requiring these forms as a condition of graduation, education leaders hope to increase the rate of qualified graduates who access the money available to them.

According to The News & Observer, the economic impact of a $272 million CSX cargo facility proposed for central North Carolina could be felt statewide. Nicknamed the CCX, or the Carolina Connector, the 450-acre intermodal freight center is expected to serve the Raleigh metropolitan market, attract jobs and stimulate shipping traffic to the Wilmington Port. CSX estimates that the facility will create 300 new construction jobs and spawn 1,500 jobs statewide.

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regional roundup

The Midwest IA • IL • IN • KS • MI • MN • ND • NE • OH • SD • WI • AB • MB • ON • SK MEDICAL MARIJUANA

FOOD TAX

The list of conditions that qualify Illinois residents to get medical marijuana will stay the same for now. The Chicago Tribune reported in January that the state would not expand the list despite requests to do so from patient advocates and business owners who sell the drug. The state Medical Cannabis Advisory Board recommended that autism, irritable bowel syndrome, post-traumatic stress disorder, osteoarthritis and several painrelated conditions be added to the list.

A new study shows that some Kansas residents are buying food out-of-state because of high sales taxes on groceries, according to the Lawrence Journal-World. Kansas—one of the 14 states that tax food—lost $345.6 million in food sales in 2013, costing the state $21.2 million in lost sales tax revenue, according to the report by Wichita State University’s Kansas Public Finance Center.

LICENSE PLATES Indiana license plates will stay on cars longer, saving the state millions of dollars. License plates will be redesigned and replaced every seven years, rather than every five years, thanks to a new rule by the state Bureau of Motor Vehicles, according to the Associated Press. Indiana will save about $10 million for every year the current plates stay on vehicles.

STUDENT LOANS Minnesota, which ranks fifth nationally in the amount of college-loan debt carried by residents, has developed a new program that allows residents to refinance student loans and save on monthly payments, according to the Star Tribune. The new program is administered by the Minnesota Office of Higher Education and is the result of a 2014 law change that allowed the highereducation agency to refinance student loans through the sale of state-backed bonds.

MAR/APR 2016 | CAPITOL IDEAS

OPIOID ABUSE

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© Ikon Images / Corbis

In an effort to combat opioid abuse, a new protocol in Ohio encourages doctors and patients to discuss non-opioid options for treatment of acute pain, according to the The Plain Dealer. Dr. Mary DiOrio, medical director of the Ohio Department of Health, said the guidelines are not mandatory, but there has been strong buyin from the medical community, the newspaper reported.

For more on CSG Midwest, visit capitolideas.csg.org and www.csgmidwest.org.

Nebraska to Launch Tax-Free Savings Program for Individuals with Disabilities Nebraska soon will offer tax-free savings accounts nationwide to people who have developmental disabilities, according to the Lincoln Journal Star.

The accounts allow people with developmental disabilities to save money without counting against their asset limits for federal programs such as Supplemental Security Income or aid to dependent children. The Nebraska plan, called ENable, will launch this summer. First National Bank of Omaha will manage the savings program.

The state plans to enroll as many people as possible across the country in order to help cover the cost of the program.

Originally, Nebraska planned to offer the accounts solely to in-state residents because of federal restrictions. However, a congressional spending bill passed last year contained a provision that allows states to offer their plans to qualifying people across the country.

“It’s a brand new program, so no state has done it before,” Nebraska State Treasurer Don Stenberg told the Nebraska Radio Network in February. “We will have a very aggressive marketing program, just to make people aware that this is a tool, if you have a loved one who has a disability, that this program is something you should look at and see if it would be appropriate for your situation.”

regional roundup

The west AK • AZ • CA • CO • HI • ID • MT • NM • NV • OR • UT • WA • WY • AB • AS • BC • GU • MP © 176 / Ocean / Corbis

PEDESTRIAN SAFETY

CLIMATE CHANGE

A pilot program in Washington aims to reduce the number of crashes involving pedestrians.

Transit agencies in the state have equipped 38 buses with dashboard alarms that flash when pedestrians are located in the driver’s blind spot, The Seattle Times reported in February. The National Academy of Science and the Washington State Transit Insurance Pool funded the $225,000 project. Bus window frames and mirrors can hide as many as a dozen people as the large vehicle turns left through a crosswalk.

Alaska Gov. Bill Walker wants to look at the impact climate change might have on the state’s villages and coastline, according to the Associated Press. Regardless of the controversy about the cause of climate change, Walker said Alaska is dealing with the effects. The governor said there is a lot of attention placed on the impacts of rising tides and warmer temperatures in Alaska, but there has been little talk about a plan to handle the situation.

RECYCLING

Sugar Cane Industry Comes to End in Hawaii

FOOD ASSISTANCE Nearly 33,000 Arizonians will lose their ability to collect food stamps through the federal Supplemental Nutrition Assistance Program later this year, according to The Arizona Republic. The state’s improving employment rate means “able-bodied adults without dependents” will no longer be eligible for the program. People over age 50 and under age 18—as well as students and pregnant women—are among the exemptions. The new rule is a return to the policy that was in place before the recession.

For more on CSG West, visit capitolideas.csg.org and www.csgwest.org.

MAR/APR 2016 | CAPITOL IDEAS

Hawaii’s last sugar plantation will stop growing sugar cane later this year, a move that will end an industry that has heavily influenced state politics and culture for more than a century, according to the Honolulu Civil Beat.

Alexander & Baldwin Inc. announced in January that it would phase out sugar cane crops on its 36,000-acre Hawaiian Commercial & Sugar Company plantation on Maui for more diversified agriculture. Executive Chairman Stanley Kuriyama said the sugar cane business was no longer sustainable.

“This is a significant historic marker for Hawaii, the end of an era that touched the lives of generations of hardworking, local families,” Hawaii Gov. David Ige said.

Alexander & Baldwin Inc. plans to offer severance packages to its 675 employees.

About half the workforce will be laid off over a period from March to November, and the other employees will be laid off after the harvest is complete in December. Employees will be considered for new jobs in the company after the transition.

Preliminary estimates suggest Maui’s unemployment rate could increase from 3.2 percent to 4 percent as a result of projected job losses from the transition, but Ige said the state would help displaced workers find jobs.

The diversified agriculture model might include growing energy crops, agroforestry, grass-finished livestock operations, diversified food crops and orchard crops, among others.

The Honolulu Civil Beat reported that the plantation has been criticized in recent years for air pollution caused by cane burning, its use of pesticides and the diversion of streams in East Maui.

Ige called the decision to transition to diversified agriculture “a golden opportunity for the state to focus on renewable energy and food security.”

Alexander & Baldwin Inc. has been cultivating sugar cane on Maui since 1870.

California residents now can drop off old mattresses and box springs at participating collection sites for free, according to The Sacramento Bee. A new state program funded through an $11 fee on mattress and box spring purchases will reduce waste in landfills. The polyurethane foam, steel frames and wood frames will become carpet padding, landscaping mulch and new bedding.

ANTI-DISCRIMINATION Montana Gov. Steve Bullock has signed an executive order that extends nondiscrimination protections to state contractors and subcontractors, according to the Independent Record.

Bullock said an expected worker shortage could be worsened by discrimination that “drives away talented and trained workers.” The change protects against discrimination aimed at employees or those served by the state on the basis of “genetic information, gender identity or gender expression,” as well as discrimination against military veterans and those with pregnancy or childbirthrelated conditions.

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in the know

Achieving Desired Results from Federal Agencies During a Transition Year Navigating federal agencies is never easy. Many federal agencies rival the world’s largest corporations in size and complexity, making it difficult to identify the appropriate official or organizational element to approach in order to engage in a productive dialogue on key issues. This problem may be exacerbated during an election year when a political transition is underway and key leadership positions are often unfilled. As a result, it is harder for an agency to make decisions, especially when those decisions involve major policy issues or new program directives.

However, it is important to remember that the business of governance does not stop during a transition year—the government continues to function. Following are some key tips for engaging with federal agencies during an election year: 1. Know your intergovernmental affairs liaisons. Each federal agency has an intergovernmental affairs office that serves as the agency’s principal point of contact for communications with state and local officials. These offices interact with governors, mayors, county officials and state legislators on a daily basis to facilitate effective communications between governmental offices, share information with states and localities, and solicit feedback on key initiatives and policy matters.

Jeff Stockdale

MAR/APR 2016 | CAPITOL IDEAS

is a senior policy adviser at The Council of State Governments’ Washington, D.C., office.

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“How you approach an agency may seem straightforward, but it can be the most important aspect for states doing business with the federal government.”

These liaison offices are essential in promoting constructive dialogue and partnerships across governments. Since they play a key role in the policy process and ensure issues are coordinated with the appropriate personnel with authority over the matter, it is important for state officials to foster relationships with them. Regular communication with an agency’s intergovernmental affairs office forms the cornerstone of an effective federal-state relationship.

2. Understand the structure of the agency and the nature of the issue you are facing.

In a time of transition, it is even more important to understand the structure of a federal agency and the nature of the issue at hand. Knowing which organizational body to approach and understanding whether the issue involves the development of a new and still unfunded policy or an existing, funded program is key.

Always think twice about approaching senior decision makers before exhausting options at a field or district office. Because appointees at executive departments generally spend on average three years in a single post, the civil servants at different agencies can be an invaluable ally during a political transition when leadership is in flux. Understanding the responsibilities of these civil servants and the roles they play in advancing a program and developing a policy is crucial to achieving desired results.

3. Know how to approach an agency. How you approach an agency may seem straightforward, but it can be the most important aspect for states doing business with the federal government. It is essential to understand the laws, regulations and internal policies that may guide or constrain an agency in dealing with a particular issue. One of the most common mistakes involves misunderstanding the constraints of established rules and procedures an agency must follow. Failing to understand laws, regulations and decision-making authority can lead to unproductive results and waste huge amounts of time.

Always approach the agency in a constructive way. Remember a federal agency’s purpose is to serve the public. Do not approach an agency as the enemy; threatening congressional intervention or litigation often halts meaningful interactions. Rather, a mutually beneficial outcome is usually the result of full and open discussions and a meaningful exchange of ideas.

While there is never a guarantee that by engaging federal agencies state officials will be able to achieve their desired outcomes to shape federal policies, programs or regulations, that is even more so the case during an election year. But by engaging federal agencies consistently and by pursuing intergovernmental discussions strategically and constructively, state officials are much more likely to have an effective impact on the federal policymaking process. These tips will give you a leg up in interacting with federal agencies this year and in future transition years.

in the know

Navigating the Federal Government Maze:

WHO YOU GONNA CALL?

The federal government can often feel labyrinthine to outsiders. Knowing who to call to address an issue or to voice an opinion at any time can be daunting, but an election or transition year can compound this even more. To help states navigate the federal maze, CSG has created the following list of intergovernmental affairs liaisons for a variety of federal agencies.

For more information, please contact the CSG Washington, D.C., Office at (202) 624-5460.

U.S. DEPARTMENT OF VETERANS AFFAIRS CHRISTOPHER O’CONNOR Acting Assistant Secretary for Congressional and Legislative Affairs (202) 461-6490

U.S. DEPARTMENT OF COMMERCE MARGARET CUMMISKY Assistant Secretary for Legislative and Intergovernmental Affairs (202) 482-3663

U.S. ARMY CORPS OF ENGINEERS JENNIFER GREER Congressional Affairs Officer (202) 761-4113

U.S. ENVIRONMENTAL PROTECTION AGENCY LAURA VAUGHT Associate Administrator for Congressional and Intergovernmental Relations (202) 564-5200

U.S. DEPARTMENT OF JUSTICE PETER J. KADZIK Assistant Attorney General (202) 514-3465

U.S. DEPARTMENT OF EDUCATION JONATHAN SCHORR Acting Assistant Secretary for Communications and Outreach (202) 401-6359

FEDERAL EMERGENCY MANAGEMENT ASSOCIATION NICOLE MLADE Director, Intergovernmental Affairs Division (202) 646-3444

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U.S. DEPARTMENT OF ENERGY BRAD CROWELL Assistant Secretary for Congressional and Intergovernmental Affairs (202) 586-5450

THE COUNCIL OF STATE GOVERNMENTS D.C. OFFICE HALL OF THE STATES (202) 624-5460

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the federal agenda and the states © Roy Scott / Ikon Images / Corbis

© Paulo Buchinho / ImageZoo / Corbis

MAR/APR 2016 | CAPITOL IDEAS

THE FEDERAL AGENDA & THE STATES

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Federalism. It is among the most fundamental principles upon which our country’s system of governance is built and a foundation for American democracy. Established by the 10th Amendment to the U.S. Constitution, its delicate balance in delineating those powers held by the federal government and those of the states is, perhaps, one of the most important factors that has allowed our union to withstand the many tests of time.

But like most relationships, it is one that is constantly evolving.

From health care and public lands to environmental protection and social issues, the ideal state-federal relationship continues to be debated and shaped in statehouses across the country, on Capitol Hill and before the U.S. Supreme Court. While state leaders may not always see eye-to-eye with their counterparts in Washington, D.C., when it comes to federal regulations and unfunded mandates, the important partnership between our central government and the states through which funding for critical programs is provided can’t be overlooked. CSG, which continues to facilitate dialogue between states and the federal government, explores this important relationship throughout this issue of Capitol Ideas.

IN THIS SECTION 13 – The Performance Push 16 – Transitioning Education 18 – Following the Rules 22 – Using Data to Reduce Fraud 24 – 10 Questions with Delaware Gov. Jack Markell 26 – States Reinvent Workforce Programs 30 – Federal Spending in the States 34 – Distrusting Government 36 – Seeing the Road Ahead 38 – Federalism and the Courts 42 – Partnership on Public Lands

federalism and performance looking ahead measurement to 2016

How The Federal Government Has Encouraged Measurement In The States

by Katherine Barrett and Richard Greene

MAR/APR 2016 | CAPITOL IDEAS

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W

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hen we’ve set out in search of sectors of state government that tend to have the most robust set of performance measures, we often run across transportation as a good example. The reason is a simple one. Even if a state wanted to save money by forgoing evaluation of its roads and bridges, it is required to do this kind of work by regulations set forth by the Federal Highway Administration.

As far as we can see, the states have been better off as a result. For example, the federal government has been able to help states utilize carefully constructed cross-state fatality data to identify road-safety programs that work—such as seat-belt laws—and look at reasons behind greater numbers of fatalities in one state compared to others.

Federal and state governments often share the same directional goals—reduce poverty, increase jobs, decrease unemployment, decrease the number of high school dropouts, reduce teenage pregnancy and so on. Federally initiated efforts at goal setting, the development of data and the measurement of performance have been intended to improve outcomes in these and other initiatives.

Over the last couple of years, the federal government has awarded nearly $1 billion in state grants to create innovative health care efforts, including new approaches to payments

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and service delivery. Some years ago, it may have rolled out this kind of grant money with little consideration to how well the programs have performed after they’ve begun. But now, according to individual state reports put together by the Centers for Medicare and Medicaid Services, “continued funding will be subject to state performance, compliance with the terms and conditions of award, and demonstrated progress towards the goals and objectives of the State Innovation Models.”

Shelley Metzenbaum, a well-known expert in performance measurement who served as associate director for performance and personnel management at the Office of Management and Budget between 2009 and 2013, says the federal government has been influential over the years in building state capacity to collect and analyze data.

“It (the federal government) strongly influences what gets measured, how it gets measured and how it gets used,” said Metzenbaum.

A Complex Process

But before we give the federal government a gold medal for promulgating performance

measurements in the states, we feel obliged to point out that this process is often complex and difficult for states—even when it comes to some issues that would appear to be very simple. With the American Recovery and Reinvestment Act of 2009, the federal government faced multiple issues with standardizing the performance reporting that was required as a part of the program, which provided funding to states and local governments to save and create jobs during the Great Recession.

It was difficult for the states and localities to even come up with a standardized definition of what qualified as a job for performance measurement and reporting purposes.

More recently, when the U.S. Veterans Administration and the U.S. Department of Housing and Urban Development set out to reduce veterans’ homelessness, they had the challenge of figuring out how to define what “homelessness” meant.

What’s more, the states aren’t always thrilled to see the federal government step into their backyards with prescriptions for measurement. Historically, efforts by the federal government to require specific data or performance measures have often sparked

HOMELESS VETERANS COLORADO SPRINGS, Colo.—Alvertis Richardson, 78, sits in a hotel room rented for him by Rocky Mountain Human Services, on March 24, 2015, after spending much of the winter on the streets. Rocky Mountain Human Services received a $3 million grant to provide housing for homeless veterans. Recent efforts by the U.S. Veterans Administration and the U.S. Department of Housing and Urban Development sought to reduce veterans’ homelessness, but first had to define what “homelessness” meant in order to measure program effectiveness. © AP Photo / The Gazette, Christian Murdock

federalism and performance measurement

opposition, particularly when performance measurement requirements are mostly related to compliance and do not appear to contribute to a joint federal-state effort to improve programs. As Metzenbaum said, “states can see performance measurement requirements in grants as a drain on the resources that would contribute to getting the job done.”

Partially as a result, while there has been steady pressure from the federal government to show the impact of funding, there’s also a recognition that states need to have some discretion in what and how they measure.

“Most agency leaders would like to see guidance within reasonable parameters of flexibility,” said Tracy Wareing, executive director of the American Public Human Services Association.

According to Wareing, the state agency commissioners with whom she talks look for clear and simple instructions, but want to be given flexibility to target the particular needs they have.

There’s a kind of Catch-22 situation here.

On the one hand, there’s general agreement that one of the benefits of federal intervention in state performance measurement is standardization of approach and terms, which allows the capacity for states to benchmark upon one another. Still, while standardization is an estimable goal, Jonathan Breul, an adjunct professor at Georgetown University and a high-level management official at the Office of Management and Budget in the 1990s and early 2000s, points out that it’s not more common, largely because of state push-back. “You can just push so far,” he said, “and then it’s no longer productive.”

Collaboration is Key

Effective Performance Measures

According to experts in the field, successful federal input into the performance measurement process achieves the following:

• It does not require specific means for achieving goals.

• It rewards good performance rather than penalizing poorer performance.

• It uses incentives very carefully, being watchful that any rewards for good performance do not have unintentional negative consequences, such as tempting agencies to manipulate their client bases in order to look more successful.

• It focuses less on using data to gauge compliance and more on using it to learn how programs and policies can be improved.

Successful federal involvement in performance measurement evolves over time.

Wareing cited the child safety review process in which the federal government steps in to examine child safety data and performance at the state level. It is currently in its third iteration.

A popular objective when the program started was to reach better outcomes on child safety—a goal that states supported. But the high performance standards that were set were hard for states to achieve. “And states were failing left and right,” said Wareing.

With state input, the standards were refined and the process shifted from a more punitive approach to one where there was a greater emphasis on what was being learned. “We’re in a third iteration in its early stages,” said Wareing, “and the states are pretty happy that the feds have given them a good sense of where they should be investing resources, time and energy, and what’s being accomplished.”

About Barrett and Greene CSG Senior Fellows Katherine Barrett and Richard Greene are experts on state government who work with Governing magazine, the Pew Charitable Trusts, the Volcker Alliance, the National Academy of Public Administration and others. As CSG senior fellows, Barrett and Greene serve as advisers on state government policy and programming and assist in identifying emerging trends affecting states.

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As a result, many of the successful federal measurement efforts have recognized the need for strong state and local buy-in and involvement. For example, a case study about child support enforcement from the IBM Center for the Business of Government looked at the development of data and measurement information for the states’ child support systems, which were targeted for pilots in the Government Performance and Results Act of 1994.

The focus in creating the measurement system was on collaboration and consensus, with state child support enforcement directors actively engaged in the development of the system and in the incentive funding attached

to it. The five key measures that were chosen for the program led to a management focus that dramatically improved the identification of paternity and the collection of child support over time. For example, California improved the percentage of money it collected for families receiving benefits from 42 percent of the total owed in 2002 to 65 percent in 2014.

Assuming that this kind of collaboration can be achieved, there’s another significant reason why state and local governments are now appearing to be less resistant to federal requirements and requests for performance information than in the past, according to John Kamensky, senior fellow at the IBM Center for the Business of Government. He said this may be because newer technology—and the states own recognition of the need to develop useful data—has made the reporting seem less burdensome. Collecting data is much easier now and there is less manual input. “This is a different world than 20 years ago in terms of the availability of data,” he said.

In fact, more data/performance collection requirements are attached to projects for which the purpose of the data is clearer. “There’s an acceptance of collecting performance-related information, but at the customized level,” said Kamensky. It’s not being collected “just for the sake of collection. It’s being collected to use.”

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the federal agenda and the states

by Elizabeth Whitehouse

MAR/APR 2016 | CAPITOL IDEAS

S

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tate officials are closely watching as the U.S. Department of Education releases more information on what the new act changes in accountability system requirements and funding mechanisms. The Every Student Succeeds Act, or ESSA, which reauthorizes the Elementary and Secondary Education Act, or ESEA, and replaces the No Child Left Behind Act, or NCLB, is the product of bipartisan efforts in Congress to give states greater control of accountability and academic standards. “Congress provided within the new law time and authority for the U.S. Department of Education to work with state and local partners to ensure a smooth and orderly transition from the No Child Left Behind and Elementary and Secondary Education Act flexibility agreements,� said Adam Honeysett, managing director of state and local outreach at the U.S. Department of Education.

ESSA empowers state and local decision makers to develop their own systems for school improvement based on evidence, rather than imposing the cookie-cutter federal solutions set forth in the NCLB act. The greater power given to states and districts is a positive change from the prescriptive federal requirements of the past several years. It had been 13 years since Congress approved the reauthorization of ESEA in 2002. The bill originally passed in 1965, designed by President Lyndon Johnson to address student achievement gaps and fund elementary and secondary education.

States have been given the opportunity to apply to the U.S. Department of Education for waivers to utilize their own systems for school improvement since 2011. Forty-three states, the District of Columbia and Puerto Rico successfully requested waivers from certain requirements of federal law by showing a commitment to rigorous state-developed

every student succeeds

» Adam Honeysett, managing director of state and local outreach, U.S. Department of Education

plans for improving educational achievement for all students. The ESSA now provides all states with the ability to develop their own accountability systems and provides the opportunity for state-level funding decisions.

So What Happens Next?

States will not be expected to transition to new requirements all at once.

“States are not required to have new accountability plans in place and fully implemented until the 2017-18 school year,” said Honeysett.

The transition from NCLB to the newly reauthorized Elementary and Secondary Education Act doesn’t mean immediate changes for states. The U.S. Department of Education has communicated to states that there will be a transition period over the next year and a half, rather than an abrupt end to NCLB. States will still have to report their progress and maintain accountability under the new law. The ESSA requires that any action taken to support school improvement is driven by student outcomes. This act also replaces

more than 50 of the grant programs under NCLB with a block grant, the Local Academic Flexible Grant, to provide states and school districts the funding flexibility to support initiatives based on their local needs. It is also of note that this act consolidates programs under one area of the bill while maintaining separate funding streams. These programs are currently located in different parts of Title I and in Titles III, VI, and VII of the ESEA and include the Migrant Education, Neglected and Delinquent, English Language Acquisition, Rural Education, and Indian Education programs.

Looking forward, the ESSA’s flexibility in the funding decisions for states will provide opportunities for innovation in the classroom and at the state and district level. States should look toward the successes of their peers and find opportunities to work together to best meet the needs of their students.

President Obama highlighted the successful work of New Mexico and Tennessee in his ESSA Progress Report in December 2015.

New Mexico has shown great progress in identifying struggling students and providing

© Dave Ellis / The Free Lance-Star via AP

them targeted supports needed for school success. Tennessee’s First to the Top legislation created conditions for improvement in the state’s public schools, setting clear education priorities and improving the state’s teacher evaluation system. This focus helped Tennessee become one of the fastest improving states in the National Assessment of Educational Progress test. Learning from the successes and missteps of others is an opportunity provided by the states that were granted waivers under NCLB and creatively developed their own policy solutions.

The Department of Education is listening to state and local partners. They held two public hearings in January 2016 to provide advice and recommendations on issues related to the ESSA. The department also accepted written comments through Jan. 21. The department will now decide whether to proceed with negotiated rulemaking after considering the feedback.

State education leaders can expect open lines of communication and offers of assistance from the department during this time.

“There will be regular communication from the department on the transition timeline, and we will be providing guidance and technical assistance to support all states, school districts, and schools during this period,” said Honeysett.

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EVERY STUDENT SUCCEEDS ACT FREDERICKSBURG, Va.—Parent Gloria Berrios spoke with U.S. Sen. Tim Kaine on Dec. 15, 2015, about the positive impact that the Head Start program at Walker-Grant has had on her family as Kaine toured the school to discuss the passage of the Every Student Succeeds Act, or ESSA. Once fully implemented, the ESSA, which replaces No Child Left Behind, will give state and local districts more control in developing school improvement systems.

On April 12, The Council of State Governments will host a free eCademy webcast on what the ESSA means for states, focused on accountability and assessment systems. For more information and to register, visit csg.org/eCademy.

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the federal agenda and the states

Following the Rules A Guide to the Federal Regulatory Process

by Andy Karellas

MAR/APR 2016 | CAPITOL IDEAS

D

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id you read today’s issue of the Federal Register? Odds are that it’s not high on your reading list, but for federal policy, it’s an important resource to track the status of federal regulations and to better understand the potential impact for your state and district.

According to a 2015 report by the White House Office of Management and Budget, unfunded mandates and federal regulations cost states, cities and the general public between $57 billion and $85 billion each year. While state leaders are working to maintain a balanced budget in their respective states, they often can’t factor in the potential economic costs imposed by federal regulations.

The federal regulation—or rulemaking—process can be daunting and complicated for many state leaders. Who has the authority to write regulations? How can state leaders provide input? When does a rule go into effect? Who has oversight of regulations?

These are questions that have been raised throughout the course of our nation’s history. Over the years, Congress and presidents have

taken steps to improve the process by enacting policies focused on transparency, mandatory reporting and increased oversight.

Spurred by the New Deal legislation in the 1930s, Congress passed the Federal Register Act in 1935 that established a uniform system for handling and communicating regulations issued by agencies to the public. This is the origin of the current Federal Register, which is published daily and available online.

One of the most significant policies enacted to shape the regulatory process was the Administrative Procedure Act of 1946, or the APA, which established the framework for the rulemaking process largely used today.

It required agencies to publish a notice of the proposed rulemaking, also known as NPRM, to collect comments from the public and provide at least a 30-day waiting period before the rule can become effective.

For state and local governments, one of the most significant policies enacted was the Unfunded Mandates Reform Act of 1995, or UMRA. The law was designed to limit the imposition of unfunded federal mandates on state, local and tribal governments by requiring regulatory agencies to

regulations 101

“State and local governments are a key partner in implementing many rules and offer a unique voice in the regulatory process; we encourage agencies to bring this voice into the policy process as early as possible.” » Howard Shelanski, administrator of the Office of Information and Regulatory Affairs, Office of Management and Budget

assess the expenditures that may result from a proposed rule. In addition, UMRA requires federal agencies to provide specific analysis and increased consultations with states, local and tribal governments for rules estimated to cost more than $100 million per year, defined as major rules. It’s worth noting, however, that federal agencies regularly avoid those requirements and issue rules without providing a full impact analysis.

The Office of Information and Regulatory Affairs, or OIRA, within the White House Office of Management and Budget is the central authority responsible for reviewing and monitoring regulations issued by federal agencies to ensure they are in full compliance with the law.

“The Office of Information and Regulatory Affairs works with agencies to ensure that the regulations issued by the Obama administration protect the health and safety of the American people without imposing undue burdens,” said Administrator Howard Shelanski, who leads the office and is appointed by the president. “State and local governments are a key partner in implementing many rules and offer a unique voice in the regulatory process; we encourage agencies to bring this voice into the policy process as early as possible.”

Naturally, not all federal agencies process regulations in the same way—they each have unique personnel and statutory authority, which can further complicate the process.

Following is a general outline of the steps in the federal rulemaking process.

Navigating the Rulemaking Process Federal agencies get their authority to issue regulations from laws enacted by Congress or delegated from an insisting presidential authority. Congress may pass laws that specifically direct an agency to solve a particular issue or accomplish an initiative.

There are occurrences when an agency may take preliminary steps and issue an “Advance Notice of Proposed Rulemaking” to receive more input from the public to shape the proposed rule and to analyze its potential impact. Agencies may convene outreach events with the public and provide opportunities to comment on the preliminary rules.

In addition, for rules that are assessed to cost more than $100 million, the agency is required to further analyze the impact on state, local and tribal governments, while also reviewing the potential affects to small businesses, as mandated by the Regulatory Flexibility Act.

Notice of Proposed Rule and Comment Period The proposed rule, or Notice of Proposed Rulemaking—or NPRM—is the official document that outlines an agency’s proposed rule to address a particular problem or achieve a specific goal. The proposed rule is published in the Federal Register and online at www.regulations. gov and includes a summary, background, compliance statements and instructions on how to submit comments.

Federal agencies typically establish a comment period ranging from 30 to 180 days, depending on the scope of the proposed rule. It is not uncommon for federal agencies to extend the comment period, however, if they require more time to adequately assess the concerns from the public and members of Congress.

During the comment period, many agencies hold public hearings, roundtable meetings, conference calls, webinars and other outreach events to gather input. The federal agency then reviews the comments, which are public, to assess any changes. If there are major changes, the agency may publish a supplemental proposed rule to implement the changes. Federal agencies also may consult with other agencies that share oversight responsibilities for the issue.

Finally, before issuing a final rule, especially for major rules, OIRA will conduct a final review and assessment of the proposed rule to ensure they are in compliance with the required statutes.

Issuing the Final Rule and Oversight Similar to the proposed rule, the final rule will include a full summary, explanation of the rule, regulatory goals and the date on which the rule goes into effect. Generally, rules go into effect no less than 30 days following publication in the Federal Register, and major rules are required to have a 60-day waiting period.

During the waiting period, agencies may provide further guidance to assist the public in complying with the new regulation. This is also the opportunity for compliance officials, Congress and the public to review the final rule. Congress has the authority to void a rule if they pass a resolution of disapproval and the president signs it, however, this has only happened once since 1996.

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How Rules are Proposed

To help the public understand when an agency plans to issue proposed rules, each agency is required to publish a regulatory plan, often referred to as the “Unified Agenda.” These plans are published on the Federal Register and the Federal Digital system, www.FDsys.gov.

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the federal agenda and the states

Navigating the Rulemaking Process Sometimes referred to as administrative law, federal rules or regulations provide the technical, operational or legal details required to implement a federal law. These mandatory requirements may apply to individuals, businesses, nonprofit organizations, or state or local governments.

Congress enacts a law that specifically directs an agency to solve an issue or accomplish an initiative.

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Step 1

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Issuing the Final Rule and Oversight

Step 3

Agency publishes a regulatory plan, or “Unified Agenda,” in the Federal Register and the Federal Digital system, www.FDsys.gov.

For rules that are assessed to cost more than $100 million, an assessment of a rule’s impact on state, local and tribal governments is conducted.

Public comment period begins, lasting 30–180 days. Agencies may hold public hearings, roundtable meetings, conference calls, webinars and other outreach events to gather input, and public comments also may be submitted online.

Step 3

The Notice of Proposed Rulemaking—or NPRM—is published in the Federal Register (and www.regulations.gov).

Step 2

Step 1

Notice of Proposed Rule and Comment Period

Step 2

How a Rule is Proposed

Step 1

Knowing how the federal regulations are created is the first step in understanding how to participate in the process. Here is a general framework of the federal rulemaking process … and how to navigate it effectively.

Office of Information and Regulatory Affairs conducts a final review and assessment of the proposed rule to ensure compliance with the required statutes.

Publication and promulgation of the final rule in the Federal Register. Generally, a rule goes into effect no less than 30 days after it is published in the Federal Register, and major rules are required to have a 60-day waiting period.

regulations 101 graphic

Best Practices for Participating in the Rulemaking Process Monitor and read the Federal Register.

You can set alerts to get notified of proposed rules that might affect your state and local constituents.

Submit comments on proposed rules.

Introduce yourself to the federal agency’s intergovernmental affairs, or IGA, office.

Within each federal agency, an intergovernmental affairs office serves as the liaison for state, local and tribal governments. IGA staff within an agency can be a key resource to help you navigate the particular federal agency.

Communicating your viewpoints remains the key way to ensure your concerns are heard by federal agencies. Public comments can be submitted and are made public on regulations.gov.

Communicate with your local members of Congress.

Request a meeting with the Office of Information and Regulatory Affairs and the federal agency.

Congress plays an important role in monitoring and overseeing federal regulations. It’s important that state policymakers communicate concerns to congressional leaders in an effort to identify opportunities to coordinate efforts related to federal regulation between state and federal governments.

There is no harm in requesting a meeting directly with OIRA and the key federal agency to discuss the proposed rule. Interested parties can request a meeting with the administrator of OIRA by emailing OIRA_submission@omb.eop.gov or calling (202)395-6880.

Join an agency’s federal advisory committee.

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There are approximately 1,000 advisory committees with more than 60,000 members who advise the president and federal agencies on policy initiatives, including federal regulations. Joining an agency’s federal advisory committee is a great way to stay connected and informed on the latest policy initiatives being developed at the federal level.

As part of our ongoing efforts to advance the role of states in our federal system, The Council of State Governments’ Washington, D.C. office works to identify opportunities to improve the federal regulatory process. The CSG federal affairs team works closely with Congress and executive branch leaders to ensure the federal government fully analyzes and considers the costs of regulations on state and local governments before issuing a final rule, and to identify real and concrete ways to improve the state-federal regulatory process.

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the federal agenda and the states

States Use Data Analytics to Reduce Medicaid Fraud

by Debra Miller

T

MAR/APR 2016 | CAPITOL IDEAS

he June 16, 2015, Boston Globe headline that the state Medicaid program—called MassHealth— needlessly spent half a billion dollars was alarming to both supporters and critics of the $10.8 billion program.

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State Auditor Suzanne Bump, first elected to office in 2010, concluded in the audit report that $233 million was spent unnecessarily when MassHealth paid providers directly for services that should have been paid by managed care organizations that receive a set amount to cover health care costs for their members.

Another $288 million could have been saved if the MassHealth contracts with the managed care organizations were clearer about what services should have been covered.

“MassHealth has failed to fully realize the cost savings potential of managed care organizations,” said Bump in a press release at the time of the audit. “To avoid paying for health services twice, MassHealth must know exactly what it should and should not pay for. … I am pleased that MassHealth has pledged to use this audit to strengthen its operations.”

Bump is proud of the savings the auditor’s office has realized through substantial recoupments and criminal prosecutions, but more important to her are systemic improvements made in state program administration.

“Certainly, audits of providers punish wrongdoing, serve as deterrents to others and lead to recoupments, but the greatest fiscal impact comes about when the MassHealth program is able to improve its operations, for then the benefits are realized over the long term,” she said.

“Data is king in today’s world,” Bump said.

“The more data that is accessible, the more effective auditors can be in making government work better.”

Major public benefits programs such as Medicaid are jointly funded and administered by the states and the federal government, but

the states have the responsibility to identify instances of fraud and recover misspent funds.

Recovered funds are returned to the federal government in proportion to their share of program funding. Administrative changes at the state level to prevent fraud and abuse in the first place save money for both the states and the federal government.

Bump described how her office uses data analytics to identify billing trends and anomalies that indicate potential billing fraud. Her staff has access to all operational and claims data in real time. Audit staffs don’t rely solely on claims data; they perform site visits to ask follow-up questions, review member files and request supporting documentation.

California has built one of the most comprehensive anti-fraud efforts for Medicaid of any state in the nation. According to Karen Johnson, chief deputy director of the Department for Health Care Services, the administrative agency for Medicaid, her agency will continue to work aggressively to develop new techniques to prevent and identify provider and beneficiary fraud. “(California Medicaid) has adopted a ‘zero tolerance for fraud’ philosophy,” Johnson said.

partners against crime

“Data analytics are what credit card companies use. If you purchase several big ticket items on the same day with your credit card, or make a purchase out of state, you are likely to get a call, or maybe even have your card frozen.

It shouldn’t be any different with state government services.” » John Dougall, Utah state auditor

DHCS is expanding its use of data analytics. Johnson pointed out that under the old model of chase-and-pay when you tried to recover the money paid incorrectly, there was a chance that the criminal had already spent it before the state could get it back.

Front-end, anti-fraud measures are consistent with new program integrity requirements of the Affordable Care Act. These efforts in California include pre-enrollment investigations as well as provider outreach and education. One of the key elements of the pre-enrollment and re-enrollment efforts is a background check and onsite review of providers prior to enrollment to ensure the legitimacy of providers before they are admitted to the California Medicaid program.

California regularly conducts error studies to protect against billing mistakes by fee-forservice providers and minimize the risk of overpayment. The studies are used to monitor emerging fraud trends, make informed

decisions on the allocation of fraud control resources and identify program areas most at risk of provider payment errors.

Data analytics “can help us concentrate our efforts so that we may readily identify issues and suspend payments, which in turn means the system can make sure more of its resources pay for the care that people need,” Johnson said.

Johnson also said that good work in this area isn’t cheap. She said DHCS is constantly striving to maintain an adequate staff with sufficient training and skills to keep abreast of the latest fraud trends and utilize the latest technologies and techniques to detect and eliminate fraud, waste and abuse.

John Dougall, state auditor in Utah, stressed his role as a steward of taxpayer funds, whether they are state or federal funds.

“We have the responsibility to ensure that welfare program benefits are going to the right people for the right purposes,” he

© Richard Babich / Times West Virginian via AP

MAR/APR 2016 | CAPITOL IDEAS

HEALTH CARE FRAUD FAIRMONT, W. Va.—U.S. Attorney for the Northern District of West Virginia William J. Ihlenfeld II, announced a multi-agency effort that will use data analysis to detect potential Medicaid fraud at the Robert H. Mollohan Research Center on Nov. 15, 2015. States such as California, Massachusetts and Utah increasingly are turning to data analytics as a tool to identify fraud and recover misspent funds for federal programs.

said. “It is important that only those eligible receive benefits.”

Dougall said his office is currently working on a performance audit of Medicaid. Like Massachusetts, the state of Utah is moving away from a fee-for-service model.

“The old incentive was to treat more people and bill for more services. Utah has gone with ACOs (accountable care organizations) to establish a new incentive for more accountable care,” Dougall said. “But people will figure out how to abuse that system as well. We hope to balance that with our audit efforts.”

Accountable care organizations, or ACOs, are voluntary networks of doctors and hospitals that provide coordinated care to patients. The ACO is paid a set fee and the ACO members share in the financial risk of providing unnecessary care and reap rewards from preventive and coordinated care that saves money.

Techniques used to abuse programs are getting more sophisticated, Dougall said, but data analytics can help states stay ahead of abuse patterns and trends.

His office recently completed a performance audit of the food stamp program—known as SNAP—that used data analytics to proactively identify and investigate potential misuse of SNAP funds. The audit concluded that the Utah Department of Workforce Services, the administrator of the SNAP program, could —and should—use data analytics to identify SNAP recipients who make the majority of their purchases out of state, request excessive replacement electronic benefit transfer— or EBT—cards, and make frequent or large even-dollar transactions.

“Data analytics are what credit card companies use,” Dougall said. “If you purchase several big ticket items on the same day with your credit card, or make a purchase out of state, you are likely to get a call, or maybe even have your card frozen.”

“It shouldn’t be any different with state government services.”

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the federal agenda and the states

‘Good policy requires a strong working relationship’ between states, federal government

by Carrie Abner

Why is the state-federal relationship so important?

“Many national policies, from health care reform to protecting the environment, only work effectively when implemented well by states, and state initiatives work best when complemented by federal resources. That doesn’t mean that we should require each other’s support to move forward on a given policy, but it does mean that good policy requires a strong working relationship between state and federal officials.”

How has the state-federal relationship changed since you took office in 2009 as the governor of Delaware?

“In recent years, we have experienced a couple of new challenges that are only starting to be resolved. First were the across-theboard budget cuts imposed by sequestration, which reduced the support we received without regard to the importance of a given program, without reducing the demand for public services.

Recent budget agreements in Congress have helped address those issues. In addition, the threat of federal shutdowns and use of short-term continuing resolutions to fund the government have created uncertainty for states and made it difficult to plan, such as in construction on our roads and bridges, where projects can take years and require financial support over an extended period of time. I’m hopeful that we will see fewer crises moving forward.”

MAR/APR 2016 | CAPITOL IDEAS

Photo by Elisa Morris

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Delaware Gov. Jack Markell, a 2003 CSG Henry Toll Fellow, serves as the 2016 national president of The Council of State Governments. With a focus on strengthening the economy in his state, Markell has led efforts to ensure workers are adequately prepared for the jobs of today. He believes that an effective partnership with the federal government—using a combination of federal resources to complement state innovation—can help achieve just that.

Read the full interview with Gov. Markell at capitolideas.csg.org.

States often have been called the laboratories of democracy. Does the current state of federalism affect states’ abilities to create innovative policy strategies to address the needs of constituents?

“The ability of states to serve as laboratories of democracy remains as clear as ever. The federal government is at its best when it incentivizes states to find innovative solutions, and I believe this is leading to progress in some key areas. Delaware was among the states to receive grants through the Early Learning Challenge, which awarded money to improve educational opportunities for our youngest children. That complemented an innovative state initiative to drive improvements across the state. Today, thousands more low-income children have access to high-quality early childhood education programs.”

Are there ways in which states are paving the way in a particular policy area? What might the federal government learn from states in this area?

“We are seeing good progress across a number of states in reforming our criminal justice system, recognizing that the lock ‘em up and throw away the key mentality that led to harsher sentences for a wide range of crimes isn’t working. It hasn’t made us safer and it’s hugely expensive. In Delaware and elsewhere

10 questions

we are focusing on the need to ensure ex-offenders are more likely to get a job and contribute to the community rather than get back into trouble after their release. We’re also reducing the number of pre-trial detainees and taking a hard look at minimum mandatory sentences. Bipartisan support for action exists in this area and I hope Congress will follow suit.”

What might improve the state of federalism from your perspective?

“From the state perspective, the best way for the federal government to support our relationship is to set goals for states to meet and provide flexibility for states to reach those goals, whether it’s reducing dirty air emissions, reducing health care costs, or many other policy objectives. States must hold up our end of the bargain too, however. We should advocate loudly for policies we want, but also not overstep our bounds by taking responsi­ bility for issues that are in the federal domain or avoiding implementation of federal laws.”

What challenges exist to making these improvements?

“The challenges are mainly political. Sometimes, it is politically beneficial for state or federal leaders to have an adversarial relationship with each other when they are from opposing parties, or even from different elements of the same party. We need to put good policy first and leaders in the Democratic and Republican parties need to support members of their party who work across the aisle.”

In what ways are states like Delaware forging partnerships with the federal government to benefit constituents?

“A great example is the Pathways to Prosperity program underway in a number of other states. In Delaware, we have used Career and Technical Education funding to support thousands of high school students enrolled in pathways ranging from computer science to health care to engineering to culinary arts. Students take hundreds of hours of courses that teach them relevant skills and receive workplace experience and college credit, which means they graduate more prepared for college or career. Importantly, the federal resources are flexible enough to allow us to provide grants to school districts to support these pathways.”

“First of all, we must give credit for job growth to those who really deserve it: the entrepreneurs and business leaders who are taking smart risks, finding new markets and delivering great value to their customers. The most important way to support a strong economy in today’s world is to ensure we have a skilled workforce that can meet the needs of employers in growing industries. We’re focused on bringing together schools, institutions of higher education and the business community to align what students are learning with relevant workplace skills and to create retraining opportunities for

Gov. Jack Markell, Delaware

workers looking to switch to new careers such as computer coding. Having a strong business climate means pushing for fewer and clearer regulations, so we modified or eliminated 140 state rules. And it means ensuring a high quality of life to attract businesses and workers to live in Delaware, which is why we’ve invested so much in initiatives like expanding walking and biking trails, upgrading libraries, and preserving our natural resources.”

What emerging challenges or opportunities do you see for Delaware and its relationship with the federal government in the next 5–10 years? For states in general?

“I’ve talked a great deal about our relationship with the federal government, but a strong relationship must be a means to an end. That end is effective governance. The most important responsibility of government leaders today is to have an understanding of how the world is changing and a plan to address those changes. Our biggest challenges are related to a new economy in which businesses have more choices of where to locate around the world and new technology has replaced tasks previously done by workers. We must change how we prepare our people for successful careers, while engaging with the world to support investment by foreign companies and improve our businesses’ ability to export to new markets around the world.”

How can CSG assist the states in navigating the highest priority federalism concerns in 2016?

“CSG’s most important role is as a convener of state leaders to share ideas, advocate for shared priorities and provide a forum for better understanding of the impact of national policy changes. The role of states as laboratories of democracy does not only involve informing the federal government, but also helping each other identify the most effective solutions to our challenges and I look forward to building on CSG’s phenomenal work in strengthening the lines of communication among leaders across the country.”

MAR/APR 2016 | CAPITOL IDEAS

During your tenure, you have focused a great deal on education and workforce development, leading your state from being among the lowest-ranking states to one of the highest-ranking states in terms of job creation. How have you accomplished that?

“The role of states as laboratories of democracy does not only involve informing the federal government, but also helping each other identify the most effective solutions to our challenges.”

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the federal agenda and the states

by Lisa McKinney

States Reinvent Workforce Programs with Innovation Grant

MAR/APR 2016 | CAPITOL IDEAS

S

26

tates that received a portion of the $35 million in federal funds awarded last fall through the Workforce Innovation Fund, or WIF, are starting to put their proposed program innovations into action to modernize the way they get people the training and assistance they need to obtain family-supporting jobs and develop a strong workforce for local businesses. In September 2015, the U.S. Department of Labor awarded WIF grants to five states—Connecticut, Minnesota, Kansas, Ohio and Pennsylvania—and one inter-tribal council to integrate their workforce systems through approaches consistent with the Workforce Innovation and Opportunity Act of 2014, or WIOA. Three of those states— Kansas, Ohio and Pennsylvania—shared how they are working to develop systems to support job seekers in a holistic manner and connect them with employers through interdepartmental and industry partnerships.

These awards are the third round of WIF grants since their inception and the first round of grants since the passage of WIOA in 2014. The act aims to coordinate and share resources and ideas for workforce development between federal, state and local agencies.

The problems facing job seekers are multi-faceted and take coordination between multiple agencies—and often the private sector—to address. The unemployed may need help keeping food on the table while they search for work, training in in-demand fields, and efficient and accessible ways to connect with employers. States hope to tackle this complex problem by integrating services in a way that addresses needs more holistically through comprehensive interagency cooperation, private sector partnerships and utilizing technology in inventive ways.

The grant solicitation required partnerships across programs both within and outside of WIOA and collaboration between at least two core programs under WIOA, such as Wagner-Peyser employment services, adult education and literacy programs, and vocational rehabilitation state grant programs that assist individuals with disabilities in obtaining employment. Additionally, at least one non-core program, such as Temporary Assistance for Needy Families, or TANF; the Supplemental Nutrition Assistance Program, or SNAP; Employment and Training program, or E&T; and state Jobs for Veterans programs, needed to be included in proposals.

The project period for the grant began on Oct. 1, 2015, and provides for one year of planning, two years for implementation and a final year for independent evaluation. These evaluations are expected to produce new evidence and best practices to stimulate innovation throughout the broader workforce system, according to a statement from the U.S. Department of Labor.

The WIF grant application provided states with a framework to build out programs that make sense for their particular workforce population and business landscape. For example, states with large populations of unemployed young people clustered in cities need different solutions than states with more experienced workforces spread out in rural areas.

Through the WIF grant, each state is able to approach their workforce development programs a little differently, based on their unique needs.

wioa in the states “Workforce development is based on the concept that a better educated and skilled workforce can contribute to employers’ success. Successful employers bring economic growth, innovative ideas and strategies, and improved infrastructure to their communities, and that’s good not only for their communities, but for the state as a whole.” » Benjamin Johnson, director of communications for the Ohio Department of Job and Family Services

Ohio Builds Their Future Workforce

by Focusing on Youth

STRONGSVILLE, Ohio—Jonah Devorak checked a high-pressure valve at his job at Swagelok Co. on Sept. 9, 2014. Devorak was stuck in a “dead-end job” washing dishes at a suburban Cleveland restaurant until he completed a program at Cuyahoga Community College that trains students for manufacturing jobs, which helped him get a full-time job at the Cleveland-area maker of high-pressure valves and fittings. Ohio is one of five states that have received federal Workforce Innovation Fund grants, through which it provides training and support services to prepare young, low-skill workers for high-demand industries. © AP Photo / Tony Dejak

MAR/APR 2016 | CAPITOL IDEAS

PREPARING YOUNG WORKERS

Ohio chose to focus on young workers and directs one-third of its WIF grant to TANF and WIOA youth programs. Their grant funds will be used to implement a new Comprehensive Case Management and Employment Program, or CCMEP, on July 1, which will integrate both of those programs into one, focusing on 16 to 24-year-olds who are out of school.

The implementation of CCMEP will run concurrently with the state’s Wage Pathway Model, which focuses on skills rather than credentials to place low-income, low-skill youth and young adults into job vacancies in high-demand industries. Running these two programs side-by-side provides an opportunity for third-party insight and rigorous review of the program as it relates to the Wage Pathway Model, said Benjamin Johnson, director of communications for the Ohio Department of Job and Family Services.

Ohio will use tools such as individualized assessments and individual opportunity plans to identify participants in two pilot areas—Ohio’s Summit/Medina and Cuyahoga counties. The grant funding will support activities such as case management, on-the-job training, apprenticeships and support services.

“Ohio is especially innovative in workforce development program design,” said Johnson. “CCMEP is an all-encompassing approach to assisting a vulnerable and vital demographic. If successful, it could change the dynamics of generational poverty.”

The grant also will fund technology identifying wage pathway data and models on OhioMeansJobs.com, the state’s online career and employment center with Monster Government Solutions, that can be used statewide. The Wage Pathway Model will use data-mapping technology from OhioMeansJobs.com to compare real-time data for in-demand jobs with the skill assessment scores of program participants to place them in jobs and help them build careers in in-demand occupations, said Johnson.

“Workforce development is an essential component of community economic development in any economic climate,” he said. “Through multiple programs designed to meet the needs of both job seekers and employers, it can bridge the gap between individuals’ skills and employers’ needs. Workforce development is based on the concept that a better educated and skilled workforce can contribute to employers’ success.

Successful employers bring economic growth, innovative ideas and strategies, and improved infrastructure to their communities, and that’s good not only for their communities, but for the state as a whole.”

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the federal agenda and the states

OVERCOMING BARRIERS TO EMPLOYMENT

OAKDALE, Pa.—President Barack Obama tours a classroom with Paul Blackford, instructor of the Mechatronics Program, at Community College of Allegheny County West Hills Center on April 16, 2014, before speaking about the importance of jobs-driven skills training. Through its Workforce Innovation Fund grant, Pennsylvania will help out-of-school youth and low-skill adults overcome barriers to employment through training and micro-credentials. © AP Photo / Carolyn Kaster

MAR/APR 2016 | CAPITOL IDEAS

Pennsylvania Reinvents Workforce Training

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Pennsylvania chose to target out-of-school youth, as well as adults with low-skills and significant barriers to education and employment through its WIF grant. The state took a cooperative and integrative approach, partnering the Pennsylvania Department of Labor & Industry with seven community colleges, seven local workforce development boards, the Office of Vocational Rehabilitation, the Department of Education Division of Adult Education and the Department of Human Services, which administers the federal SNAP, employment and training, and TANF programs, to develop micro-credentials that demonstrate measurable skill gains and are part of a clearly defined career pathway for individuals with barriers to employment, said Stephanie Larkin, director of the Pennsylvania Workforce Investment Board.

“Given the Workforce Innovation and Opportunity Act’s increased focus on ensuring the success of persons with barriers to employment, micro-credentials are an emerging concept that provides measurable skill gains in shorter segments and allow an individual to show specific skills, knowledge or experience to potential employers in order to more quickly enter the job market,” said Larkin.

The seven local partnerships, which each consist of one local workforce board and one community college, are given the flexibility to determine which participants they will target. The populations they will serve include ex-offenders, individuals with

disabilities, out-of-school youth, displaced workers, low-income individuals, single parents, adults with low basic skills, and the unemployed and underemployed.

The goals of the project are to improve the educational and employment outcomes of students with barriers and to make micro-credentials an integral part of career pathways for individuals.

Specifically, the grantees aim to increase student retention, credential obtainment and job placement. They plan to do this by establishing several career pathway models that include multiple industry-recognized micro-credentials. Additionally, the project will catalog interventions and supportive services available to assist students at risk of not completing their micro-credentials, whether it is due to education issues or other factors. Various assessment tools will be considered in evaluating what interventions might be necessary for program participants, said Larkin.

Partnership with business is also an essential component of the program. Partnering employers will agree to consider program participants for employment.

“Employers are an integral partner in establishing career pathways models and the micro-credentials to be made available along the career pathway,” said Larkin. “This direct alignment to employer soft skill, job readiness and occupational skill needs will ensure meaningful micro-credentials that improve employability of credential earners.”

wioa oaths in the of states office

PUTTING TECHNOLOGY TO WORK

CHANUTE, Kan.—Gary Scott and Portia Murphy use the free city-run high-speed wifi at the Chanute Library on May 21, 2014. Scott, a program manager for Pyxis, a company that helps clients of the Kansas Department of Children and Families find employment, is training Murphy who recently rejoined the company after a 10-year absence. Kansas will use a portion of its Workforce Innovation Fund grant to fund technological solutions to help expand access to services for the state’s rural population. © AP Photo / The Wichita Eagle, Dion Lefler

Kansas Seeks to Bridge the Rural-Urban Divide portal, START HERE, which provides a single entry point for any individual seeking services in Kansas, said Weidenbach. Users will be able to enter basic identification and demographic information and answer general questions about their needs and interests.

Based on this information, the user will be directed to information about available services tailored to their specific needs. For example, if someone indicates an interest in working as a welder, the customer will have access to information about all welding certification programs available throughout the state as well as a score card of each training program describing the graduation rates, employment placement rates, entry-level wage averages and other indicators of success.

“Currently, a customer would have to visit more than a dozen websites separately to view similar information about welding certification programs in Kansas,” said Weidenbach. “START HERE provides all of the information in one place.”

START HERE will also serve as a repository of users’ data so that when someone seeks services from a WIF partner, the partner staff can integrate the customer’s information into their own data system, providing a single point of entry for multiple services and preventing the customer from having to provide the same information multiple times, added Weidenbach.

“Both through this grant and the Workforce Data Quality Initiative, it is hoped Kansas will be able to crack the code for data sharing across multiple programs,” said Weidenbach. “It would be most helpful for FERPA (Family Educational Rights and Privacy Act) and HIPAA (Health Insurance Portability and Accountability Act) reform to allow all state departments serving common customers to have access to all data regarding those common customers.”

MAR/APR 2016 | CAPITOL IDEAS

In Kansas, a state with a low population density and with population centers concentrated in the eastern third of the state, program administrators often find it difficult to reach Kansans in rural areas, according to Susan R. Weidenbach, manager of workforce development and special projects in the Kansas Department of Commerce. The state is also home to businesses ranging from large international firms to local businesses with fewer than 50 employees, and wages and unemployment rates vary widely across the state.

These wide variations in needs and access across the state complicated the designing of a statewide project to meet the requirements of participants, systems, industry and performance, said Weidenbach. The state addressed this by focusing on local and digital solutions to create customized and integrated services for all their residents.

The state will partner with local workforce development boards to provide postsecondary scholarships, on-the-job training and other work-based training and supportive services to job seekers with multiple barriers to employment, such as a disability or lack of high-demand skills and access to services. Cross-program and interagency staff training will be developed by and provided to state and local staff members who deliver programs serving job seekers most in need of skill development, employment preparation and other supportive services such as adult education, vocational rehabilitation, TANF and SNAP. The state plans to utilize technology to simplify interagency communication and make the process of accessing services and information easier for Kansas residents. The greatest portion of WIF funding will support the development of an electronic participant

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by the book

Federal Spending in the States

by Jennifer Burnett

Federal spending plays a significant role in state budgets and economies. In recent years, the percentage of state revenues coming from Washington, D.C., to the states has fluctuated, largely due to the end of American Recovery and Reinvestment Act—or stimulus—dollars and the implementation of the Affordable Care Act.

YEAR-OVER-YEAR GROWTH IN FEDERAL SPENDING TO STATES According to the National Association of State Budget Officers, federal funds to states grew slightly in fiscal year 2011, fell in fiscal years 2012 and 2013, and then grew again in fiscal year 2014. For fiscal year 2015, it is estimated that federal spending will jump by 12.2 percent over 2014 levels—almost exclusively due to increased spending on Medicaid (fiscal 2015 was the first full year of the optional Medicaid expansion under the Affordable Care Act).

2011

2012

2013

2014

2015

1.0%

-9.8%

-2.6%

4.7%

12.2%

0%

Data Source: The National Association of State Budget Officers, State Expenditure Report, Nov. 19, 2015.

PERCENT OF STATE REVENUES FROM FEDERAL DOLLARS, FY 2000 – FY 2013 Federal dollars made up just under one-third of state revenues—30 percent—in fiscal year 2013, which is the most recent year for which data are available. That figure is down significantly from fiscal year 2010, at the height of the stimulus activity, when that percentage hit 35.5 percent.

40

35.5% 29.9%

30

26.3%

30.9%

31.3%

30.0%

27.5%

34.7%

31.8% 28.6%

28.1%

27.8%

2006

2007

2008

31.6%

30.0%

MAR/APR 2016 | CAPITOL IDEAS

20

30

10

0

2000

2001

2002

2003

2004

2005

Data Source: The U.S. Census Bureau, State Government Finances Summary.

2009

2010

2011

2012

2013

federal spending in the states

FEDERAL PER CAPITA SPENDING On a per capita basis, federal spending in the states varied significantly in fiscal year 2013—from a low of $7,108 in Utah and $8,174 in Minnesota to a high of $16,710 in Virginia and $15,684 in Maryland.

NONRETIREMENT RETIREMENT BENEFITS BENEFITS

GRANTS

SALARIES & WAGES

CONTRACTS

$ TOTAL FEDERAL FUNDS TO STATE $11,743 $10,157 $9,635 $8,967 $9,237 $9,773 $9,760 $8,860

$14,375

$11,527

$13,752

$9,390

$8,188 $8,446 $8,375 $8,377

$9,664

$8,174

$9,501

$10,927 $12,104

$11,469 $10,829 $9,996

$8,368 $8,308 $9,380 $9,279

$7,108

$9,940 $9,536 $9,407 $8,778 $9,830 $8,324 $10,568 $10,984 $10,217 $9,499 $9,930 $8,865

$5,000

$13,213

$11,036

$8,312 $8,885 0

$15,684

$11,300

$16,710

$10,462 $11,496 © 2014 The Pew Charitable Trusts

$10,000

$15,000

$17,500

MAR/APR 2016 | CAPITOL IDEAS

Alabama Alaska Arizona Arkansas California Colorado Connecticut Delaware Florida Georgia Hawaii Idaho Illinois Indiana Iowa Kansas Kentucky Louisiana Maine Maryland Massachusetts Michigan Minnesota Mississippi Missouri Montana Nebraska Nevada New Hampshire New Jersey New Mexico New York North Carolina North Dakota Ohio Oklahoma Oregon Pennsylvania Rhode Island South Carolina South Dakota Tennessee Texas Utah Vermont Virginia Washington West Virginia Wisconsin Wyoming

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January 19th, 2016

d e t a st y l f e bri The school bell rings at the McCoy household. Sen. McCoy and his wife, Shauna, have four children—with two more on the way. All of the McCoy children are homeschooled. “The McCoy school has the best students in the world, along with the best teacher. Love them to pieces!”

Pre-dawn exercise moving snow. “Got to love Nebraska in January!” said Sen. McCoy. According to McCoy, “Winston was no help at all.”

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Sen. McCoy and his wife, Shauna, are expecting a baby girl due in April and also are adopting a child from China. The two had an important meeting at the U.S. Department of Homeland Security to have their fingerprints taken as a part of the adoption process. “We are thrilled our family is expanding, but it was a little strange being excited to have our fingerprints taken. #McCoyClanPartyof8” Despite his best efforts, the snow kept McCoy from making it back to the Nebraska Capitol in time for the morning floor debate.

Lunch break? There is no lunch break. “The lunch hour is when I catch up on paperwork from the morning. My staff is great at refilling the inbox every afternoon.”

McCoy listens to testimony during a Telecommunications and Transportation Committee hearing. “I love that every bill introduced in the Nebraska Unicameral receives a public hearing, and our citizens show up to testify, sharing their thoughts and concerns. Nebraskans truly are the second house in our state government.”

McCoy attends an evening event with former Nebraska Gov. Dave Heineman and emerging state leaders. “Gov. Dave Heineman is a good friend and respected leader. He has encouraged me during my years of public service, and I enjoy passing along his wisdom to our future leaders.”

Sen. McCoy, the oldest of five children as a fourth-generation cattle ranch kid, was raised in an original sod ranch house, where he was homeschooled all but one year of his K–12 education.

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January 19th, 2016

d e t a st y l f e bri The school bell rings at the McCoy household. Sen. McCoy and his wife, Shauna, have four children—with two more on the way. All of the McCoy children are homeschooled. “The McCoy school has the best students in the world, along with the best teacher. Love them to pieces!”

Pre-dawn exercise moving snow. “Got to love Nebraska in January!” said Sen. McCoy. According to McCoy, “Winston was no help at all.”

32

Sen. McCoy and his wife, Shauna, are expecting a baby girl due in April and also are adopting a child from China. The two had an important meeting at the U.S. Department of Homeland Security to have their fingerprints taken as a part of the adoption process. “We are thrilled our family is expanding, but it was a little strange being excited to have our fingerprints taken. #McCoyClanPartyof8” Despite his best efforts, the snow kept McCoy from making it back to the Nebraska Capitol in time for the morning floor debate.

Lunch break? There is no lunch break. “The lunch hour is when I catch up on paperwork from the morning. My staff is great at refilling the inbox every afternoon.”

McCoy listens to testimony during a Telecommunications and Transportation Committee hearing. “I love that every bill introduced in the Nebraska Unicameral receives a public hearing, and our citizens show up to testify, sharing their thoughts and concerns. Nebraskans truly are the second house in our state government.”

McCoy attends an evening event with former Nebraska Gov. Dave Heineman and emerging state leaders. “Gov. Dave Heineman is a good friend and respected leader. He has encouraged me during my years of public service, and I enjoy passing along his wisdom to our future leaders.”

Sen. McCoy, the oldest of five children as a fourth-generation cattle ranch kid, was raised in an original sod ranch house, where he was homeschooled all but one year of his K–12 education.

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the federal agenda and the states

It’s Complicated: Americans’ Relationship with the Federal Government Goes Beyond Distrust

by Carroll Doherty

MAR/APR 2016 | CAPITOL IDEAS

A

34

sk some Americans about the federal government and they bluntly describe its flaws and failings. Ask them about what the government should do—and how it actually performs—and they tell a very different story.

A national survey by Pew Research Center, based on more than 6,000 interviews conducted last fall, found that the public has a complicated relationship with its government. At a general level, trust in government is low, frustration is high, and there is broad sense that the government is in dire need of reform.

Just 19 percent said they could trust the federal government always or most of the time, among the lowest figures in surveys dating back more than half a century. An equally low share, just 20 percent, said the

federal government does a good job of running its programs.

At the same time, Americans see a need for government in many realms—from defending the country against terrorism and responding to natural disasters to maintaining the nation’s infrastructure. The size and role of government remains politically divisive; most Republicans prefer a smaller government with fewer services, while most Democrats favor larger government with more generous services.

But majorities in both parties said the federal government should have a major role in most of the 13 issues asked about on the survey.

Moreover, despite the harsh criticisms of the federal government at a general level, most Americans said it does well in

public distrust of government

By the Numbers

19

19 percent of surveyed participants said the government is run for the benefit of all—the same share that trusts the government at least most of the time.

65

64 percent of those surveyed by Pew said their side more often lost than won.

76

76 percent of surveyed participants said government “is run by a few big interests looking out for themselves.”

About the Author Carroll Doherty is director of political research at Pew Research Center. He plays a leading role in developing the center’s research agenda and overseeing editorial content about long-term trends in political values, U.S. views on policy issues and priorities, and political knowledge and news interest.

MAR/APR 2016 | CAPITOL IDEAS

addressing many of those same areas. Of 13 government functional areas tested, the balance of opinion about government performance is more positive than negative in 10.

So what are federal and state government officials to make of these seemingly contradictory sentiments?

Several themes emerge in the data.

Plummeting public trust in the federal government has been accompanied by a growing skepticism that government is run for the benefit of all Americans. Since the 1960s, as public trust in government has fallen, so too has the belief that the government is “run for the benefit of all the people.” In fact, these two attitudes have followed nearly identical trajectories over the past 50-plus years. In the survey, just 19 percent said the government is run for the benefit of all—the same share that trusts the government at least most of the time—while 76 percent said government “is run by a few big interests looking out for themselves.”

The public’s deep frustration with politics is a factor in its generally negative opinions of government. To be sure, negative opinions about politics and politicians are hardly new— for years, majorities have had low regard for elected officials. But in the current environment, distaste for politics has taken on an especially sharp edge.

In politics today, just 25 percent of the public said “their side” has been winning more often than it has been losing. More than twice as many—64 percent—said their side more often lost than won. Perhaps not surprisingly, those who feel like their side is losing in politics have more critical views of government than those who do not.

Finally, while it may seem obvious, performance matters. While the federal government receives positive marks in many areas, it gets its lowest ratings for its handling of highly visible issues such as poverty and immigration. Just 36 percent said the federal government has done a good job helping people get out of poverty, and even fewer—just 28 percent—think it has done well in managing the immigration system.

Opinions about government performance— positive or negative—are associated with people’s overall views of government. But high-profile government scandals and crises may have greater impact on these attitudes than the perception that government is doing well in less publicized day-to-day functions.

A comprehensive report on the survey findings, “Beyond Distrust: How American’s View Their Government,” is available on Pew Research Center’s website, pewresearch.org.

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the federal agenda and the states

Federal transportation Transportation Bill allows bill Allows states States to see the road ahead

by Sean Slone

MAR/APR 2016 | CAPITOL IDEAS

A

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fter 10 years of uncertainty and 36 shortterm extensions, it’s wonderful to start the year with a fiveyear transportation bill,” U.S. Secretary of Transportation Anthony Foxx said to applause at the Transportation Research Board annual meeting in Washington, D.C., on Jan. 13.

Signed into law by President Obama on Dec. 4, 2015, the Fixing America’s Surface Transportation, or FAST, Act authorizes federal highway, highway safety, transit and rail programs through fiscal year 2020 and provides $305 billion in funding from the Highway Trust Fund and the General Fund. The legislation is the first long-term surface transportation bill passed by Congress since 2005.

None were happier to see the bill pass than state transportation officials.

“It is great as a department commissioner … to have some long-term funding prospects,” said John Schroer of the Tennessee Department of Transportation at the 2015 CSG National Conference in Nashville, Tenn., on Dec. 11.

For Tennessee, a state that relies on the federal government for 55 percent of its transportation budget, the FAST Act will have a significant impact.

“My federal budget is about $950 million a year,” said Schroer, who served as the 2015 vice chair of the CSG Transportation and Infrastructure Public Policy Committee. “The FAST Act will give us about $300 million more (over the five years). That’s nothing to sneeze at. That’s about $60 million more in additional funding (annually). … So for us, that’s a goodsized project.”

Perhaps more importantly, the federal legislation will help alleviate some of the uncertainty that prompted Tennessee—a non-debt state—to postpone transportation projects in recent years. Knowing what the next five years will bring from Washington also lets states know how much they have to come up with on their own to meet their transportation needs.

Tennessee is among a number of states this year looking at ways to increase state transportation revenues. Schroer and Gov. Bill Haslam toured the state last year to try to build

states pave way forward

“The FAST Act will give us about $300 million more (over the five years).

That’s nothing to sneeze at.” » John Schroer, Tennessee Department of Transportation

While the FAST Act will create greater certainty for states and bring modest increases in highway and transit funding over the course of the bill—5 percent and 8 percent in the first year, 15 percent and 18 percent in 2020, respectively—some believe it was a missed opportunity to provide more sustainable funding for the Highway Trust Fund by raising the federal gas tax.

Instead, Congress maintained its philosophy of recent years of relying on general fund dollars to supplement gas tax revenues coming into the trust fund. While the 18.4 cents-a-gallon gas tax is expected to bring in $40 billion in revenues for the foreseeable future, the current $51 billion in spending commitments will rise to $59 billion a year under the FAST Act. “At the end of 2021 … we’re going to have anywhere from $17 billion to $20 billion in annual shortfalls,” said Alex Herrgott, deputy

staff director for the U.S. Senate Environment and Public Works Committee. “So if you’re going to do another six-year bill, you’re going to need about $120 billion, which is the equivalent of about a 20 cent gas tax increase. … We couldn’t even get 5 cents through.”

That’s why Herrgott and others believe the FAST Act may be the last bill of its kind. The good news for now, Herrgott said, is that the FAST Act has established a “new normal” for the federal program.

“Nobody five years from now in my mind is going to have an easy time cutting back into the meat of what we were able to establish,” he said. “We now have this unanimous bill that folks ordinarily would have voted against for spending purposes (but who) voted for it, press-released it and are campaigning on it right now.”

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support for a revenue measure. The state last raised its gas tax in 1989. Since then, Schroer noted, the cost of paving a road has gone from $30,000 a mile to more than $100,000 a mile.

But the FAST Act also will be important for states that do have debt capacity and that already have addressed their own state transportation funding needs. Iowa, for example, was one of eight states that raised gas taxes in 2015.

“The stability and assurance are probably the biggest benefits (of the FAST Act) for states and certainly for Iowa,” said Stuart Anderson, director of the Planning, Programming and Modal Division at the Iowa Department of Transportation. “In Iowa, we have for the last four or five years fully programmed our expected federal funding. Some states for various reasons haven’t been able to do that. …

The FAST Act doesn’t allow us to program more federal funding, but what it does do is it takes the risk out of the equation.”

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the federal agenda and the states

Federalism and the U.S. Supreme Court: Past, Present and Future

by Lisa Soronen

I

f you are interested in federalism, much of the action has been at the U.S. Supreme Court in the last few years. This is true of the court’s current term and will likely be true of the next few terms.

The tricky thing about understanding how the Supreme Court views federalism is it is impossible to know—particularly in the big cases—what is really motivating the justices. When the majority of the court reaches an outcome favoring states’ rights over federal supremacy, is it out of respect for states’ rights or because the justices wanted a particular outcome based on ideology? For example, in the same-sex marriage cases last term, does the vote of the majority justices illustrate their lack of enthusiasm for states as laboratories of democracy or their belief that the majority of Americans were ready to accept same-sex marriage … or both or neither?

While justices’ opinions offer a view into their reasoning, particular points may be overemphasized or left unsaid.

With that caveat, this article examines how federalism has fared recently in the Supreme Court, the important federalism cases currently on the court’s docket, and what federalism cases the court might take up in the next few years.

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© Roy Scott / Ikon Images / Corbis

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federalism in the courts

Federalism in the (Recent) Past

NFIB v. Sebelius Argued March 28, 2012 Oct. 2011

Oct. 2012

Shelby County v. Holder Argued Feb. 27, 2013 Oct. 2013

Obergefell v. Hodges Argued April 28, 2015 Oct. 2014

Arizona v. United States Argued April 25, 2012

United States v. Windsor, Argued March 27, 2013

SAME-SEX MARRIAGE NEW YORK, N.Y.—Edith Windsor pictured during an interview at the offices of the New York Civil Liberties Union on Oct. 18, 2012. At stake in the 2013 U.S. Supreme Court case, United States v.

Windsor, was the constitutionality of the Defense of Marriage Act, or DOMA, definition of marriage—for federal purposes—as being between a man and a woman. The Supreme Court eventually struck down DOMA, which was a victory for states that permitted same-sex marriage. © AP Photo / Richard Drew, File

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The Roberts Court is currently in its 10th year. The early years of the Roberts Court were not dominated by particularly significant federalism cases, but that all changed in the early part of this decade.

In the court’s October 2011 term, federalism was at issue in the two big cases. In the 2012 NFIB v. Sebelius case, the court was asked to decide whether the Affordable Care Act individual mandate and Medicaid expansion provisions were constitutional. Arizona v.

United States involved a challenge to four provisions of Arizona law designed to crack down on illegal immigration.

The big cases in the court’s October 2012 term involved federalism, too. In the 2013 case United States v. Windsor, the court was asked to decide the constitutionality of the Defense of Marriage Act, or DOMA, requirement that marriage for federal purposes be defined as between a man and a woman. In Shelby County v. Holder the same year, the fate of Section 4 (and, practically speaking, Section 5) of the Voting Rights Act, requiring “covered” states to obtain federal permission before making any changes to voting laws, was in the court’s hands.

The court took a break from federalism in its big decisions in the October 2013 term but returned to federalism last term. In Obergefell v. Hodges in 2014, the court agreed to decide whether state laws prohibiting same-sex marriage were unconstitutional.

Federalism fared well in all of the cases except Obergefell v. Hodges. Notably, in NFIB v. Sebelius, while the Affordable Care Act remained mostly intact, the individual mandate was deemed to violate the Commerce Clause on the ground that Congress lacks the power to compel a person to engage in commerce.

And for the first time ever, the court concluded that a federal law exceeded Spending Clause authority because it was coercive. In Arizona v. United States, while the court held that three provisions of Arizona immigration law were preempted, it concluded the most controversial provision (“show me your papers”) wasn’t clearly preempted. And following Shelby County, Section 5 of the Voting Rights Act is currently inoperable.

United States v. Windsor, striking down DOMA, was a victory for states that permitted same-sex marriage, while Obergefell v. Hodges was a loss for states that only recognized marriage as between a man and a woman.

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the federal agenda and the states

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Federalism at Present

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Five of the six significant cases on the court’s docket this term have federalism implications.

The U.S. Constitution Equal Protection Clause “one-person, one-vote” principle requires voting districts to have roughly the same population so that votes in each district count equally. In Evenwel v. Abbott, the court will decide what population is relevant—the total population, including non-citizens, or the voting population—and who gets to decide—the states or the U.S. Supreme Court.

Texas, like all other states, reapportioned its state senate districts following the 2010 census based on total population alone. Challengers claim that their votes are worth less than other voters because they live in districts that substantially deviate from the “ideal” in terms of number of voters or potential voters, which violates “one-person, one-vote.”

The district court ruled in favor of Texas, reasoning that the Supreme Court has never held any particular metric chosen by a state legislature to be unconstitutional.

In Friedrichs v. California Teachers Association, the court may strike down more than 20 state “fair share” laws.

In the 1977 case Abood v. Detroit Board of Education, the court held that the First Amendment does not prevent “agency shop” arrangements where public employees who do not join the union are still required to pay their “fair share” of union dues for collective bargaining, contract administration and grievance adjustment. The rationale for an agency fee is that the union may not discriminate between members and nonmembers in performing these functions.

Public-sector employees who don’t join the union may opt out of paying “nonchargeable” union expenditures—including expenditures for political or ideological purposes. The court agreed to decide, assuming it doesn’t overrule Abood, whether requiring non-members to opt out of nonchargeable expenditures—rather than opt in—violates the First Amendment.

The issue in Whole Women’s Health v. Cole is whether Texas’ admitting privileges and ambulatory surgical center requirements create an undue burden on women seeking abortions and are reasonably related to advancing women’s health. Two dozen states have adopted similar laws.

Texas claims, and the Fifth Circuit agreed, that women’s health is advanced if doctors performing abortions have admitting privileges at a nearby hospital and if abortion clinics must comply with standards set for ambulatory surgical centers. Whole Women’s Health argues that the Fifth Circuit erred in refusing

Evenwel v. Abbott Argued Dec. 8, 2015

United States v. Texas Petition Granted Jan. 19, 2016

Oct. 2015

April 2016

Friedrichs v. California Teachers Association Argued Jan. 11, 2016

Whole Women’s Health v. Cole Argument Scheduled for March 2, 2016

Fisher v. University of Texas at Austin, Argued Dec. 9, 2015

AFFIRMATIVE ACTION WASHINGTON, D.C.—Abigail Fisher, with attorney Edward Blum, spoke with members of the media at the U.S. Supreme Court on Dec. 9, 2015, following oral arguments in the case before the Supreme Court that calls into question the use of race in college admissions. © AP Photo / J. Scott Applewhite

to consider “whether and to what extent” Texas law actually serves its purported interest in achieving safer abortions.

Whole Women’s Health also argues that these requirements create an undue burden on those seeking abortions. Fewer than 10 of Texas’ more than 40 abortion clinics will remain open, those that do will be inaccessible to many and may be unable to keep up with demand for abortions.

The Fifth Circuit found no undue burden even though 17 percent of women of reproductive age would face travel distances of 150 miles or more to receive abortions.

For the second time, the court has agreed to decide whether the University of Texas at Austin’s race-conscious admissions policy

is unconstitutional in Fisher v. University of Texas at Austin.

Per Texas’s Top Ten Percent Plan, the top 10 percent of Texas high school graduates are automatically admitted to UT Austin, which fills about 80 percent of the class. Unless an applicant has an “exceptionally high Academic Index,” he or she will be evaluated through a holistic review where race is one of a number of factors.

The court has held that the use of race in college admissions is constitutional if it is used to further the compelling government interest of diversity and is narrowly tailored.

In the first hearing of the case, the court held that the Fifth Circuit, which upheld UT

federalism in the courts

participants is a particular harm states will face, which provides the basis for standing.

The court’s ruling on standing in this case could affect states’ ability to challenge other federal laws that impact them.

What Does the Future Hold?

Constitutionality of Solitary Confinement

Federalism in the Future

SOLITARY CONFINEMENT NEW YORK, N.Y.—Candi Hailey, center, spoke during a rally organized by the Campaign for Alternatives to Isolated Confinement on July 23, 2015. During the rally, protesters like Hailey called for the end of solitary confinement. In the last Supreme Court term, Justice Anthony Kennedy expressed interest in hearing a case challenging the constitutionality of solitary confinement. © AP Photo / Bebeto Matthews

In United States v. Texas the court has agreed to decide whether President Obama’s deferred action immigration program violates federal law or is unconstitutional. While this isn’t a federalism case per se, the United States argues that the states lack “standing” to challenge the Deferred Action for Parents of American, or DAPA, program.

The Fifth Circuit concluded that the cost of issuing drivers licenses to DAPA program

Conclusion

Three things may be said definitively about the Roberts Court. It is not afraid of taking on significant, controversial issues, and many of those issues have implications for federalism. But only the justices know how much considerations of federalism really make a difference in their decisions.

About the Author Lisa Soronen is the executive director of the State and Local Legal Center. Prior to joining the SLLC, she worked for the National School Boards Association, the Wisconsin Association of School Boards and clerked for the Wisconsin Court of Appeals.

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Austin’s admissions policy, should not defer to UT Austin’s argument that its use of race is narrowly tailored.

When the Fifth Circuit reviewed UT Austin’s admissions policy, it again concluded that it is narrowly tailored; the court determined that the Top Ten Percent Plan works well at increasing minority student enrollment because Texas schools are so segregated.

But a number of well-qualified students are excluded—specifically minority students who performed well at majority-white schools but aren’t in the top 10 percent of their class. If race wasn’t considered during holistic review almost every student admitted would be white because of the test score gap between white and minority students.

And as a result of holistic review, a much higher percentage of white students are admitted, but generally between 25 and 30 percent of the overall number of black and Hispanic students are admitted through holistic review.

It is impossible to know what cases the Supreme Court will take in the future involving federalism—or any other topic. But it is probably fair to predict that a few of the following issues will find their way onto the court’s docket sooner rather than later.

This term the court refused to review a case holding that a city could ban assault weapons and large capacity magazines. It is just a matter of time until the court rules again on gun control. It may first want to decide whether the right to possess a gun extends outside the home before deciding which types of guns are protected by the Second Amendment.

Last term, in two separate concurring opinions, Justice Kennedy expressed interest in hearing a case challenging the constitutionality of solitary confinement and a case reexamining Quill Corp. v. North Dakota from 1992, holding that states cannot require retailers with no in-state physical presence to collect use tax.

Working their way through the federal courts are cases challenging the use of race in admissions at Harvard and the University of North Carolina at Chapel Hill. Challengers are arguing that it is unconstitutional to use race in college admissions at all.

Finally, at some point in the near future the Supreme Court is likely to agree to hear a challenge to a state voter ID law.

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the federal agenda and the states

Partnership on Public Lands Lessons Learned From Conservation Efforts in the West

MAR/APR 2016 | CAPITOL IDEAS

by Liz Edmondson

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I

n September 2015, the U.S. Fish and Wildlife Service determined that threats to the greater sage-grouse had been sufficiently reduced to avoid listing the bird as a protected species under the Endangered Species Act. The decision hinged on a major conservation effort involving cooperation between the federal government, state agencies, private landowners and other key stakeholders across the bird’s 11 state, 173-million acre range. According to Jerimiah Rieman, natural resources policy director to Wyoming Gov. Matthew Mead, this effort was “the single largest species conservation effort undertaken in the world at any point in time.”

The greater sage-grouse is a captivating rangeland bird found in the iconic sagebrush ecosystem of the western United States. Three hundred and fifty other species, some of which are found nowhere else in the world, also inhabit the sagebrush landscape.

In 2010, due to concerns about habitat loss and lack of adequate regulatory mechanisms to address them, the U.S. Fish and Wildlife Service determined that the bird was warranted for protection under the Endangered Species Act. However, at the time the service needed to address higher priority listing actions and agreed to resolve the sage-grouse’s designation

by Sept. 30, 2015.

A decision to list the greater sage-grouse under the Endangered Species Act could have had profound impacts on the economy. According to Rieman, a listing of the species based on its historic range would have eliminated 80 percent of natural gas production, over 60 percent of oil production and 87 percent of coal production in the state. As a result, states and other stakeholders began to coordinate to develop plans to conserve the species. Rieman noted that while states felt they were in the best position to manage the species, ultimately the looming threat of a listing determination brought stakeholders to the table with the resources necessary to address the problem.

Several factors presented challenges to this effort. Rieman said the factors contributing to

public lands

States, federal agencies partnered for success in “the single largest species conservation effort undertaken in the world at any point in time.” » Jerimiah Rieman, natural resources policy director to Wyoming Gov. Matthew Mead

“Idaho wanted to be in control of how the land was managed,” said Miller. “We worked closely with local federal partners at the U.S. Bureau of Land Management, the Fish and Wildlife Service and the Forest Service.”

However, Miller noted that Idaho has experienced challenges in moving forward with its plan. Idaho worked closely with the U.S. Bureau of Land Management and other federal agencies to develop a plan that met agency guidelines, but that was specific to Idaho. Despite working closely with federal agencies, the U.S. Bureau of Land Management added more restrictions to Idaho’s plan late in the process that Miller said were neither scientifically based nor necessary.

“As other states moved forward with their planning efforts, the (U.S. Department of the Interior) became concerned about inconsistencies and DOI’s solution was to take a top-down approach initiated by D.C., instead of working more with state and Idaho federal agencies,” said Miller.

Idaho continued to work with federal agencies to preserve the integrity of the local planning effort, but none of Idaho’s suggestions were accepted in the final plan. “The big problem was that significant changes were made behind closed doors at the 11th hour

STATE-FEDERAL CONSERVATION EFFORT

COMMERCE CITY, Colo.—Rancher Duane Coombs shows off a pin depicting the sage-grouse at a gathering at Rocky Mountain Arsenal National Wildlife Refuge, Sept. 22, 2015. The U.S. Department of the Interior announced its decision to deny protections for the greater sage-grouse under the Endangered Species Act following a major conservation effort by federal and state agencies, private landowners and other stakeholders. © AP Photo / Brennan Linsley

by the federal government and Idaho was not brought in as a full partner,” said Miller.

Idaho has filed a lawsuit challenging the September 2015 record of decision that finalized the 98 total land use plans that were developed through this process.

In the meantime, according to Miller, “Idaho wants to keep moving forward.”

“This is an unprecedented planning effort,” Miller said. But, “the governor’s plan is a solid plan. We need to be given the benefit of the doubt to implement state specific strategies developed by the state with state stakeholders and with buy-in and approval of the state Bureau of Land Management, Fish and Wildlife Service and Forestry Service.”

Rieman and Miller agree that the sagegrouse conservation effort was unprecedented in the scope, cooperation and amount of habitat protected. Reiman praised the “good, honest dialogue” and the ability to work with those high up in the chain of command in the federal government as keys in creating a workable plan for Wyoming. On the other hand, Miller warned that for future efforts to be successful, the federal government must make transparency a priority. “We need to understand where the goals and objectives are up front or it will be hard to do this in Idaho again.”

Overall, the partnership between the states and federal government and other stakeholders resulted in a higher level of protection for the sage-grouse, while preserving many of the economic development activities on which states and their citizens depend. In a Sept. 22, 2015 press release, U.S Secretary of Agriculture Tom Vilsack celebrated the historic effort.

“Together we have shown that voluntary efforts joining the resources of private landowners, federal and state agencies, and partner organizations can help drive landscape-level conservation that is good for sage-grouse, ranching operations and rural communities,” said Vilsack.

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the habitat loss of the greater sage-grouse were very different across the bird’s range.

These included habitat fragmentation, conversion of sagebrush habitat to agriculture, human population increases, fires, energy development and invasive species such as cheatgrass. In addition, Rieman noted that another challenge was ensuring that all states engaged. Had the species been been listed, the Endangered Species Act would have had to consider the entire range of the bird, so if some states did not engage and create conservation plans, there would be no opportunity for individual states to develop solutions unique to their individual circumstances.

In other words, it was an all-or-nothing situation.

Despite these challenges, Wyoming chose to address the issue early on. Wyoming brought a team of stakeholders together in 2007, which included industry, the U.S. Fish and Wildlife Service, the Wyoming Game and Fish Department, the Wyoming Bureau of Land Management, wildlife groups, and others. This diverse group of federal, state and private stakeholders came together with a goal of “working together to find out how to address threats in Wyoming,” said Rieman.

This ultimately led to the issuance of an executive order in 2008 by former Wyoming Gov. Dave Freudenthal that incorporated recommendations from the stakeholder group. Current Wyoming Gov. Matthew Mead entered his own executive order in June 2011 that conserves habitat across 15 million acres, called “core areas,” while maintaining economic opportunity in the state. Under Wyoming’s plan, the vast majority of energy production in the state can continue, while more habitat is conserved.

Dustin Miller, administrator of Idaho’s Office of Species Conservation, said Idaho took a lot of cues from Wyoming in developing its plan. Similarly to Wyoming, Idaho Gov. C.L. “Butch” Otter put together a diverse task force in 2011.

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leadership corner

Gov. Terry Branstad | January 12

2016 The more frequently a term appeared in the address, the larger it appears in the state’s word cloud.

MAR/APR 2016 | CAPITOL IDEAS

Gov. John Hickenlooper | January 14

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leadership corner

Gov. Tom Wolf | February 9

To view our complete interactive map of State-of-the-State address word clouds

visit www.csg.org/wordcloud

Gov. Mary Fallin | February 1

MAR/APR 2016 | CAPITOL IDEAS

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stated briefly

d e t a st y l f e bri

//CSG Transportation Director Addresses Maine Legislature

Sean Slone, director of transportation and infrastructure policy at The Council of State Governments, addressed the Maine Legislature’s Joint Standing Committee on Transportation in February at the Maine State House, where he gave a presentation on transportation funding efforts across the country.

Eight states approved gas tax increases in 2015—Georgia, Idaho, Iowa, Michigan, Nebraska, South Dakota, Utah and Washington.

Slone spoke about the states that could consider transportation funding measures in 2016 and the potential impact a new federal transportation bill, Fixing America’s Surface Transportation—or FAST—Act, will have on states. The FAST Act was approved by Congress late last year.

“As Congress struggled to pass a mostly status quo transportation bill in 2015 and avoided a federal gas tax increase in the process, eight states decided it was time to raise their own gas taxes and address their funding needs,” Slone said.

SEAN SLONE CSG Director of Transportation and Infrastructure Policy

Maine was one of several states last year to address some of its transportation funding needs in a different way. The state’s voters in November approved an $85 million bond that will be used to fund mostly road and bridge projects.

//CSG and The Griffith Insurance Education Foundation Provide Ridesharing Education

to Iowa Legislators

The Iowa Senate Transportation Committee hosted an informational presentation Feb. 8 on the insurance and regulatory issues involved with rideshare companies such as Uber and Lyft. The session, held at the Iowa State Capitol, was part of an ongoing collaboration between CSG and The Griffith Insurance Education Foundation to provide policymakers with non-advocacy, nonpartisan, educational programming on the topic.

The two organizations also collaborated on sessions in Columbus, Ohio, and Boston, Mass., in 2015. The CSG-Griffith collaboration continues with additional on-site sessions planned as states consider rideshare legislation this year.

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“Our two organizations are excited about this opportunity to work together in order to better educate public policymakers on these emerging issues,” said Frank Paul Tomasello, program director at The Griffith Foundation.

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© Bigapplestock / Dreamstime.com

stated briefly

//CSG Executive Director Discusses

//CSG Justice Center to Host

State Policy Priorities at Governing Conference

National Stepping Up Summit

David Adkins, executive director and CEO of The Council of State Governments, spoke at Outlook 2016, a state and local government market forecast event held Feb. 2–3 at the National Press Club in Washington, D.C. Adkins participated alongside Scott Pattison, executive director of the National Governors Association, and William Pound, executive director of the National Conference of State Legislatures, on a panel titled “State and Local Matters Now: Leadership from Top Government,” to discuss the state and local issues driving the nation’s policy agenda.

Zach Patton, executive editor at Governing, moderated the session.

In partnership with the American Psychiatric Association Foundation—or APA Foundation—and the National Association of Counties, The Council of State Governments Justice Center will host the first-ever National Stepping Up Summit April 17–19 in Washington, D.C. The event aims to help county, regional, tribal or unified state teams develop and advance system-level plans to reduce the number of adults with mental illnesses and co-occurring substance use disorders in jails. Funding for the summit, including participants’ travel, is being provided by the APA Foundation.

DAVID ADKINS CSG Executive Director and CEO

//CSG West Welcomes New Staff to Sacramento Office

New CSG West staff members (left to right) Not pictured: ERICA MILLER

ADRIAN ALVARADO

JEFF NICOLE FAITH KIMBERLY MILLER FRANCL JAMES CLARK

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CSG West is pleased to welcome several new staff members to its office in Sacramento, Calif. Adrian Alvarado joined in November as database and administrative meetings coordinator following five years of service as senior program coordinator at the Federal Judicial Center in Washington, D.C. Erica Miller began in June 2015 as meetings and programs associate and Jeff Miller, who also started in June, serves as policy analyst and coordinates communications for the regional office. Kimberly Clark joined the office as logistics and meetings coordinator and Nicole Francl came on board in July 2015 as development assistant, providing staff support to CSG West Executive Director Edgar Ruiz. Faith James is the most recent addition to CSG West, joining as international programs coordinator in January 2016.

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shout out

BOBBY MOAK

Mississippi State Representative (1984–2016) 1986 CSG Toll Fellow Looking back on his 32 years in the Mississippi Legislature, former state Rep. Bobby Moak recalled Hurricane Katrina recovery efforts, car tag cost reductions and a long, active history with The Council of State Governments. In 1986, Moak participated in the first class of the CSG Henry Toll Fellowship Program, one of the nation’s premier leadership development programs for state government officials. Moak said the program was beneficial because he met, and learned from, other policymakers from across the states. “The people I met in that group are still people that I hear from occasionally, even after 30 years. So I think it’s just one of the best programs that CSG has.” Moak remained involved with CSG as a member of several committees, including the Suggested State Legislation—now Shared State Legislation—Committee, of which he was chairman for nine years. The SSL Committee reviews innovative legislation from one state that may be useful in other states. “I can’t think of a time when I didn’t rip a page or two out of my booklet and carry it back to Mississippi,” he said. “I think that’s what the SSL Committee is about. It’s about bringing your ideas and having somebody else take it.” Many of Moak’s successes in the Mississippi Legislature will be felt by the state for years to come, including his efforts after Hurricane Katrina devastated the Gulf Coast. Moak was chairman of the Gaming Committee in the Mississippi House when Hurricane Katrina destroyed almost every casino in the state. Moak led the efforts to ensure the casinos could MAR/APR 2016 | CAPITOL IDEAS

rebuild and re-establish thousands of jobs. He helped change a law that required casinos to locate in or on water. “We

48

allowed them to move on land … that made their reconstruction prices a lot cheaper and there were about 23,000 direct jobs involved with those casinos.” He also helped establish a credit that reduced the price of expensive car tags in the state. Moak, a personal injury lawyer with an office in downtown Bogue Chitto, Miss., said it was “always appealing to be a part of the public policymaking process.” He said his time in the legislature was enjoyable, particularly because he had a voice in interesting issues and could give back to the community.

Do you know someone in state government who deserves a shout out? Email Carrie Abner at cabner@csg.org.

For more on Bobby Moak, visit capitolideas.csg.org.

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