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Getting to Know the Finer Details of the Senate Highway Bill

Posted by Ken Orski on Monday, April 23rd, 2012

Innovation NewsBriefs
Vol. 23, No. 15

“I have not been a student of the Senate bill because the Senate bill has been academic to me. But now that it’s becoming a potential reality and I’m a potential negotiator, I will become conversant with the Senate bill line by line and then I’ll have an opinion,” Rep. Peter DeFazio (D-OR), answering a reporter’s query about details of a provision in the Senate bill. (Quoted in POLITICO’s Morning Transportation, April 19.)


As Rep. DeFazio observed, getting to know the finer details of the Senate highway bill (MAP-21, S. 1813) has taken on new significance now that a House-Senate conference negotiation on the reauthorization measure has become a reality. Understanding the Senate bill is important  because the Senate measure is likely to become the basis of any final bill.  The House bill (H.R. 4348)  is little more than a 90-day extension of the current program (through September 2012) with the Keystone XL pipeline amendment attached to it.  It is silent on nearly everything addressed by the Senate bill. And, equally, it is silent on nearly every issue germane to the transportation reauthorization.
It is in this spirit that we provide below a detailed analysis of  one aspect of the Senate highway bill —its finance and revenue provisions. We owe this analysis to Gary Hoitsma, editor of the Washington Letter on Transportation (published by the Carmen Group, ), who alone among the Washington reporters had the initiative and curiosity to go behind the rhetoric of “bipartisanship” and document the convoluted financing,  bordering on gimmickry, of the Senate bill.  
But other aspects of the bill also deserve a critical scrutiny— some are changes that were inserted into the bill late in the process and adopted by unanimous consent without debate; others are provisions that are not even remotely germane to the core purpose of the bill; still others are provisions that many stakeholders object to because they discourage  states to partner with the private sector (the so-called Sen. Bingaman amendment)
The non-transportation provisions include the creation of a new National Endowment for the Oceans, Coasts and Great Lakes to be housed in the Department of Commerce (Sec. 1603(4) of MAP-21), and a seven-year reauthorization for the Land and Water Conservation Fund which is a National Park Service program within the U.S. Department of the Interior (Sec. 1701 of MAP-21). Indeed, the Senate bill includes over $6.8 billion in new non-Highway Trust Fund spending that has nothing to do with the core purpose of the bill (see below).
The Senate measure also includes changes that were quietly slipped into the bill and were approved on the Senate floor by unanimous consent without debate on March 13, one day before the final passage of the bill.  They include, notably, a provision transfering $5 billion in general funds (“out of money in the Treasury not otherwise appropriated…”) without offering any immediate offset (Sec. 40313 of MAP-21; for other transfers see Sec. 40301-03, 40306); and an amendment affecting the treatment of transportation “enhancements” (Sec. 1113 of MAP-21).
The latter amendment shifts the flexibility to decide how to spend the enhancements set-aside money  from the state DOTs to local government agencies, thus substantially modifying an earlier agreement  reached by the leaders of the Environment and Public Works (EPW) Committee. As the Committee’s chairman, Sen. Barbara Boxer (D-CA) and its ranking member Sen. James Inhofe (R-OK) agreed at the November markup of the bill, it was only a compromise on that contentious issue that allowed the parties to move forward on the entire bill.  
All in all, the final Senate bill includes some quite significant changes from what was agreed to at the mark up a month earlier. As Hoitsma observed, “It is doubtful that many senators or other outside observers were fully aware of these changes or their significance.”
It should be noted that the provisions cited above (and discussed in more detail in the Washington Letter on Transportation of  March 19, March 26, April 2, April 9 and April 16 ) may be merely the tip of the iceberg. We simply do not know what, if any, other questionable items might have been slipped into this massive 1,600-plus page bill. It is now incumbent upon the House negotiators (hopefully with the help of the press and the concerned transportation policy community) to examine the Senate bill  line-by-line as Rep DeFazio has promised to do, and to shine light on any other questionable provisions.
To fail to do so would be to accept former Speaker Nancy Pelosi’s notorious advice that we must let Congress pass the bill so that we would know what’s in it. 

C. Kenneth Orski is a public policy consultant and former principal of the Urban Mobility Corporation. He has worked professionally in the field of transportation for over 30 years, in both the public and private sector. He is editor and publisher of Innovation NewsBriefs, now in its 22nd year of publication.

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