Interstate Compacts: Governance and Administration
|Friday, October 7, 2011 at 02:36 PM
While interstate compacts are essentially contracts whose provisions are limited primarily by the imaginations of their drafters, their development has, in practice, evolved along best practices. Compacts are legally binding agreements between state governments. Because these dynamic institutions change with gubernatorial administrations and legislative representation, creating an agreement that adequately manages an ongoing and complex interstate relationship is critical, and delineating the governance apparatus is one way to ensure the smooth, continued operation of the compact.
The basic form of the compact will dictate the appropriate structure for governance. Most interstate compacts fall into three categories:
- Boundary compacts, which create or move the boundaries of a state;
- Advisory compacts, which create study commissions to provide insights and reports on a particular issue; and
- Administrative compacts, which create agencies that oversee policy and have rulemaking authority.
These forms of compacts are listed in order of sophistication. The more complicated the compact, the more intricate its governing apparatus should be.
Boundary compacts, typically the most straightforward of the three common forms of compacts, require less elaborate bureaucratic structures for governance and administration. These compacts often are self-executing after enactment because the boundaries they cover are static.
For example, the Arizona-California Boundary Compact plots 34 geographical points to create the boundary between Arizona and California. It requires little administration after becoming active. This task of identifying 200 geographical subpoints was left to a neutral third party, the United States Coast and Geodic Survey. Both the Boundary Commission of Arizona and the Boundary Commission of California were granted authority through the compact to certify that the points identified by the survey were satisfactory to their respective states. The certification authority of the boundary commission is another example of the collaborative yet sovereign strengths of the compact mechanism. Following this ratification, the compact required no further responsibilities of the commissions.1
Other compacts, like the Missouri-Nebraska Boundary Compact, account for a potentially changing boundary. In Article VIII, Readjustment of Boundary by Negotiation, the compact includes specific direction about how the states should handle a boundary that shifts if the course of the river changes:
“If at any time after the effective date of the compact the Missouri River shall move or be moved by natural means or otherwise so that so that the flow thereof at any point along the course forming the boundary between the states occurs entirely within one of the states, each state at the request of the other, agrees to enter into and conduct negotiations in good faith for the purpose of readjusting the boundary at the place or places where such movement occurred consistent with the intent, policy and purpose hereof that the boundary will be placed within the Missouri River.”2
Beyond the potential and undefined ad hoc administrative negotiation, this compact, like many boundary compacts, requires little governing resources.
Advisory compacts typically feature an added layer of governance through an interstate agency or commission that explores a particular interstate problem or topic. Interstate commissions often are established with representatives tasked by their respective states with delivering reports and/or other analyses to advise appropriate state authorities on a particular issue. For example, Delaware and Maryland formed The Delmarva Advisory Council Agreement, a compact that created an interstate commission to advise state leaders regarding the Delmarva Peninsula.
As the agreement states:
“The duties and responsibilities shall include but are not limited to:
- Assist in the identification of perceived regional problems and issues;
- Assist in effective solutions for such problems and issues;
- Assist in resolution of such problems and issues in order to promote a balanced development to improve the economic conditions, quality of life, and environmental concerns of the people of the Delmarva Peninsula;
- Advise the Governors, Secretaries, Legislatures and other local and state agencies on options to solve regional and interstate problems and issues as pertaining to the Delmarva Peninsula;
- Prepare and submit quarterly reports and furnish such reports as well as any requested studies by the Governors; and
- Serve in an advisory capacity only.”3
The Delmarva Advisory Council Agreement also takes advantage of both the paradoxical rigidity and flexibility of the compact mechanism in outlining the governance to pursue its goals. Because compacts are enduring, legally binding agreements and member states must pass the same piece of legislation, compacts contain a level of rigidity not found, for example, in a memorandum of understanding or uniform state laws—common alternative interstate agreements to compacts. The binding language of a compact, however, can and often does build in a level of flexibility, as in the case of the Delmarva Advisory Council Agreement.
This flexibility takes the form of rules or bylaws, which can be changed by the council. This incorporation of an interstate agency that can create rules and bylaws allow the compact to change certain policies without having to amend the compact, which would require each member state to pass new laws that agreed to the amended compact.
The compact illustrates this rigidity by dictating membership of five appointees by the governors of Delaware and Maryland, but also the flexibility by allowing members of the council to set bylaws that would allow other individuals to serve as they deem necessary. Specifically, the compact states:
"The membership of the Council shall consist of:
- Five members appointed by the Governor of Delaware, five members appointed by the Governor or Maryland, and five members appointed by the Governor of Virginia; and
- Such other members from county and municipal governments, and from the private sector as may be established from time to time in the bylaws of the Council."4
Administrative compacts are often the most intricate and specify the most extensive administrative apparatus. Administrative compacts typically require the creation of an interstate agency to oversee an ongoing area of interstate policy, and they also have the ability to set policy. The Interstate Compact on Educational Opportunity for Military Children, for example, requires each member state to designate a commissioner who will have one vote on bylaws and rules that include interstate policies as part of the Interstate Commission on Educational Opportunity for Military Children. The compact, however, outlines additional bureaucratic functions beyond the national level and to the state level. This advisory compact deals with state education policy and, perhaps in an effort to ensure a more direct coordination with local policymakers, requires states to set up state councils consisting of specific representatives.
As noted in the compact:
(a) Each member state shall, through the creation of a State Council or use of an existing body or board, provide for the coordination among its agencies of government, local education agencies, and military installations concerning the state’s participation in, and compliance with, this compact and Interstate Commission activities. While each state may determine the membership of its own State Council, its membership must include at least
- The state superintendent of education;
- The superintendent of a school district with a high concentration of military children;
- A representative from a military installation;
- One representative each from the legislative and executive branches of government; and
- A representative from other offi ces and stakeholder groups that the State Council considers appropriate.”5
The compact also calls for the creation of an additional administrative position to better connect the policy to the people affected.
"c) The State Council of each member state shall appoint or designate a military family education liaison to assist military families and the state in facilitating the implementation of this compact.6
This additional bureaucratic structure helped the compact be successfully implemented nationally. It coordinated a myriad of state education policies in 39 states. The additional layers of governance were important given the national scope and complexity of the policy area involved."
Ad hoc commissions, advisory interstate agencies and policymaking commissions with state-level bureaucracies are common models of governance for interstate compacts and typically correlate to the complexity of the compact. Proper models of governance are key to ensuring the long-term success of these binding interstate agreements. Interstate governance may come from existing state officials, newly created agencies or even be driven by associations.
For more information, see The Evolving Use and the Changing Role of Interstate Compacts: A Practitioner’s Guide by Caroline N. Broun, Michael L. Buenger, Michael H. McCabe, & Richard L. Masters.
Additional information is also available at www.csg.org/compacts and the CSG Knowledge Center at www.csg.org/knowledgecenter/interstatecompacts.
1 Arizona-California Boundary Compact, art. II (1963)
2 Missouri-Nebraska Boundary Compact, art. VIII (1990)
3 Delmarva Advisory Council Agreement, Virginia § 2.1-339.7 (1964)
4 Delmarva Advisory Council Agreement, Virginia § 2.1-339.5 (1964)
5 Interstate Compact on Educational Opportunity for Military Children, art. VIII (a) (2008)
6 Interstate Compact on Educational Opportunity for Military Children, art. VIII (c) (2008)