Accountability and Constitutional Federalism: Reconsidering Federal Conditional Spending Programs in Light of Democratic Political Theory

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INTRODUCTION: THE ELECTED,THE ELECTORATE, AND CONSTITUTIONAL FEDERALISM

"The powers not delegated to the United States by the Constitution are reserved to the Departmentf] of ... Treasury, except when the states are willing to forsake Federal financing."1 While originally written as a satire, this revision of the Tenth Amendment2 starts to seem disturbingly accurate when one learns that federal grants to the states comprise almost 30% of states' revenues.3 What drives the point home, though, is the nature of these grants: virtually all of them come with conditions requiring that the states change their policies to conform to federal mandates.4

In South Dakota v. Dole,5 the Court articulated a five-pronged test for determining the constitutionality of conditional spending programs.6 But over the years, this test has not presented a meaningful barrier to conditional spending.7 Worse yet, the Dole test, relying on the Court's conclusion that Congress's spending powers8 are quite broad,9 asks only a structural federalism question: Does Congress have the power to impose conditions on its grants of money to the states? Commentators likewise have discussed the Dole test only in terms of federalism.10 To this day, the test remains good law."

This Comment aims to shift the analytical model for studying conditional spending programs. It assumes, if only for purposes of argument, that Congress has broad powers under the Spending Clause and that conditional spending programs do not violate federalism.12 But this Comment poses a different (and, surprisingly, unanswered) question: When the states comply with the federal government's conditions and change their policies, what effect does this compliance have on state officials' accountability to their electorates? And if, as I argue, such compliance undermines accountability, does the underlying spending condition violate any constitutional limitation on Congress's legislative power? This Comment will show that the Court's current standard of review for conditional spending cases does not, but should, address accountability concerns and will propose an alternative that does.

Meaningful accountability13 received some attention from the Court in New York v. United States.14 While this Comment is not about the Court's decision in New York per se, the decision does provide a useful illustration of accountability run amok. On one hand, the Court sought to protect "the accountability of both state and federal officials" to their electorate.15 Employing this rationale, the Court held unconstitutional a federal statute that commanded the states either to remove radioactive nuclear waste or to take title to it.16 If Congress's scheme were permitted, state and federal officials could engage in a kind of political shell game where each level of government might disclaim responsibility by pointing fingers at the other.17 There was a danger, then, that accountability would wither.

On the other hand, accountability concerns did not bother the New York Court when it considered a different provision of the Act. The Act, in a separate section, conditioned federal funds to the states on their compliance with Congress's implementation schedule for waste removal programs.18 Under the Dole test, the Court in New York easily upheld the conditional funding provision.19

One might, and should, wonder why the accountability logic should not apply when Congress conditions federal funds on a state's implementation of a congressionally mandated waste removal schedule. If a state institutes waste removal programs to comply with Congress's schedule, the decision may displease some voters. When pressed by these voters at the next elections to explain the decision to comply, state officials may shift the blame to Congress for imposing conditions on federal funds. But, because federal officials may in turn point fingers at their state counterparts and explain to the upset voters that the state officials always had the option of foregoing federal funding and refusing to comply, the buck would not stop with Congress either. …