Practitioner's Corner

The Highway Bill – Hallelujah Chorus or Broken Hallelujah?


By Becky Weber

If you decided to create the soundtrack for Congress’ long and tortured journey to fail to enact a long term surface transportation reauthorization bill over the last two and a half years to music, what songs would you pick? Here’s a brief review of how they got here and what may lie ahead on the “The Long and Winding Road” (The Beatles).

This has been a strange evolution of politics in Congress on the reauthorization bill over the last year.   It’s been difficult to conduct regular order in the Senate during most of the 112th Congress and bills sent from the House that remain stalled in the Senate could be stacked up end to end for miles.  However, the Senate actually managed to pass a bipartisan reauthorization bill, “Moving Ahead for Progress for the 21st Century” (MAP-21/S. 1813) after four and a half weeks on the floor.  Even with a brief interlude into birth control, the bill passed with a relatively strong vote of 74-22 on March 14th.  Though it was written and advertised as a two- year bill authorizing programs for FY 2012 and FY 2013, on June 30th, the bill’s length will be just 15 months, so it becomes less of a reauthorization bill and more of a glorified extension with each passing day. The bill keeps highway and transit funding at their current levels over that time by augmenting the troubled highway trust fund with a mish-mash of $13 billion in offsets from other random sources.  However, the bill does not attempt to address the long term financing issues with the program and the trust fund is projected to be bankrupt again at the end of its expiration date.   By Chairwoman Boxer’s own admission, it doesn’t make any huge changes to the core programs.  It’s most revolutionary provisions occur in the commercial motor vehicle safety title, where it imposes a high volume of significant new regulatory burdens on the sector.

On the House side, Speaker Boehner took a bold, or some have said partisan and controversial, approach in guiding its reauthorization effort.  His goal was to keep funding close to current levels while also solving the long-term financing issues plaguing the programs.  However, the controversial aspect of Speaker Boehner’s approach was the proposed solution to augment financing with fees from increased drilling for oil and gas on Federal lands and trying mightily to arrange a happy marriage between energy and infrastructure.  So far, the bride has not made it down the aisle for the vows; instead of “I Only Have Eyes for You” (The Flamingos) it’s been “50 Ways to Leave Your Lover” (Paul Simon).

House Transportation and Infrastructure Committee Chairman John Mica produced a revolutionary bill in February, aptly named the American Energy and Infrastructure Jobs Act (HR 7), which makes sweeping changes to highway and transit policy.  The raucous and partisan 18-hour record-setting Committee markup was only the beginning of significant trouble, which peaked the following week as the bill was being brought to the floor. CBO scoring for the increased drilling did not come back as robust as originally envisioned and funding had to be augmented to the tune of $40 billion in general fund revenues offset with pension benefit changes for federal employees.  In addition, the bill removed dedicated trust fund spending for public transit.  With Democrats objecting to the wedding with the passion of Taylor Swift’s “Speak Now,” House Leadership and Chairman Mica were left to find support for the bill on the Republican side alone.  Their moderate wing was upset at the treatment of transit, while some of the conservative wing refused to support a bill that exceeded funding levels the trust fund alone could support.  The ultra-conservative wing did not think there should be a federal program for surface transportation programs at all and individual Members were upset with new highway distribution formulas that resulted in less revenue flowing to their States than in previous years.  Alas, there were no earmarks this year that could be doled out to “tweak” the State by State chart and pacify Members, as they have been bountifully utilized in past years.  In a cruel insult to Valentine’s Day, that evening the votes to the magic 218 majority were not in hand and the next day, the preacher had to reluctantly announce that the wedding was not going to occur as planned and the bill was pulled from the floor.  Cue The Righteous Brothers “You’ve Lost That Lovin’ Feeling.”

In the ensuing six weeks, Leadership and Chairman Mica worked behind the scenes to make changes to the bill to increase support.  Promises to put dedicated funding back in for transit brought moderates back in line, but threatened to create more problems with conservatives.  Transportation interest groups were charged and deputized to go forth, conquer and make the case for the bill.   While the package has gained support, so far, the formula to ultimate victory has remained elusive.  Meanwhile, the chorus to simply cede to the Senate-passed bill and be done with it until next year grows louder by the day.

Like Dead or Alive’s “You Spin Me Round (Like a Record),” the 9th extension played out over the last week in March and included more drama and cannon fire than the “1812 Overture” (Tchaikovsky).  It was a nerve-rattling, high stakes game of hard-ball chicken.  House Leadership scheduled and withdrew planned floor votes on both a 90-day and a 60-day extension, while Democrats fumed and demanded, in vain, that the House should simply take up the Senate passed bill.  In the midst of the circus, Democrats alleged that they had been left out of crafting the House bill, and in contrast, the “other body’s” product looked darn good to them.  With the clock ticking down to the final deadline, House Leadership resorted to martial law to ram through a 90-day version on a partisan vote, dropping it on the front porch of the Senate in a take it or leave it dare as they headed for the hills for a two week recess in similar fashion to Stevie Wonder’s “Signed, Sealed, Delivered (I’m Yours).”  The Senate reluctantly complied, as neither chamber wanted to be blamed for shutting down the programs and facing angry construction workers in bulldozers hunting down Members of Congress at Easter Egg Hunts across America.    However, it was not without hysterics of their own, including multiple press conferences including one at the Capitol with a roll of duct tape on the back of a flatbed labeled “Emergency Bridge Repair Team.”  Senate Democrats produced some of their own political theater by successively attempting to amend the 90-day extension on the floor with the Senate-passed bill, only to be met with the expected series of objections.  In the land of a looming recess, airplanes to catch and no time for cloture, it only takes one – cue “Listen” by Beyonce.  When the Senate finally relented and passed the 90-day extension to continue programs until June 30th, transportation interests breathed a sigh of relief and felt a temporary surge of the “Hallelujah Chorus” (Handel) given the machinations of the week.  However, it was clear that passage of a 9th extension of the program wasn’t really a Hallelujah Chorus moment, but rather a “broken hallelujah” moment.  They trudged home to Leonard Cohen’s “Hallelujah” refrain: “Love is not a victory march, it’s a cold and it’s a broken Hallelujah.”

Both Chambers will return to Washington next week with seven work weeks standing between them and next looming deadline of June 30th.  All eyes are on what action the House will or will not take.  Options under consideration include: continuing attempts to tweak the five year reauthorization bill and twist enough arms to garner a majority of Republican votes; going back to the drawing board and rewriting the reauthorization bill without drilling provisions with Democrats involved;  passing a “shell” reauthorization bill with little substance and requesting a conference with the Senate; passing a “shell” bill with the energy provisions (which have already passed the House numerous times) and requesting a conference with the Senate; passing the House version of the Senate-passed bill (HR 14, deemed “twice as good as HR 7” by Ranking Member Nick Joe Rahall, currently has 121 Democrat cosponsors); or kicking the can down the road again with another extension to get past the next election.  All are possibilities.   Speaker Boehner and Chairman Mica face a big decision with potentially huge political consequences.

For reference, the last reauthorization bill was 23 months delayed and required 12 Congressional extensions to keep the programs going before a multi-year bill was finalized.  By June 30th, the current reauthorization will be 33 months delayed and will have required 9 Congressional extensions.  Visions of bulldozers on the Capitol lawn and invading 4th of July picnics come to mind.  But the stakes of this game are even higher than a potential lapse of the program.   At some point, Congress’ ongoing difficulties in ensuring stable, multi-year, long-term funding for these important infrastructure programs may risk the very existence of the programs themselves.  For a growing number of Members, States and stakeholders, seeking support from State and local governments and the private sector in place of the Federal government’s traditional role, may appear more and more attractive with fewer headaches.  Indeed for some, this has become a proactive agenda.  Just last week, Standard and Poor’s warned that another credit crisis could ensue with the continued Congressional delays.  The million dollar question remains whether Congress will address the long term issues of the programs that built America with a “Hallelujah Chorus” or another “broken hallelujah?”