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

INTRODUCTION: THE ELECTED,THE ELECTORATE, AND CONSTITUTIONAL FEDERALISM powers not delegated to United States by Constitution are reserved to Departmentf] of ... Treasury, except when states are willing to forsake Federal financing.1 While originally written as a satire, this revision of Tenth Amendment2 starts to seem disturbingly accurate when one learns that federal grants to states comprise almost 30% of states' revenues.3 What drives point home, though, is nature of these grants: virtually all of them come with conditions requiring that states change their policies to conform to federal mandates.4 In South Dakota v. Dole,5 Court articulated a five-pronged test for determining constitutionality of conditional spending programs.6 But over years, this test has not presented a meaningful barrier to conditional spending.7 Worse yet, Dole test, relying on Court's conclusion that Congress's spending powers8 are quite broad,9 asks only a structural federalism question: Does Congress have power to impose conditions on its grants of money to states? Commentators likewise have discussed Dole test only in terms of federalism.10 To this day, test remains good law. This Comment aims to shift analytical model for studying conditional spending programs. It assumes, if only for purposes of argument, that Congress has broad powers under Spending Clause and that conditional spending programs do not violate federalism.12 But this Comment poses a different (and, surprisingly, unanswered) question: When states comply with 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 underlying spending condition violate any constitutional limitation on Congress's legislative power? This Comment will show that 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 Court in New York v. United States.14 While this Comment is not about Court's decision in New York per se, decision does provide a useful illustration of accountability run amok. On one hand, Court sought to protect the accountability of both state and federal to their electorate.15 Employing this rationale, Court held unconstitutional a federal statute that commanded 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 other.17 There was a danger, then, that accountability would wither. On other hand, accountability concerns did not bother New York Court when it considered a different provision of Act. The Act, in a separate section, conditioned federal funds to states on their compliance with Congress's implementation schedule for waste removal programs.18 Under Dole test, Court in New York easily upheld conditional funding provision.19 One might, and should, wonder why 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, decision may displease some voters. When pressed by these voters at next elections to explain decision to comply, state officials may shift 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 upset voters that state officials always had option of foregoing federal funding and refusing to comply, buck would not stop with Congress either. …