Showdown, then Breakdown, on Transportation Lawmaking in Congress


Heading out the door for their 5-week vacation this August, Congress wrapped up a major piece of transportation business in an all-too-familiar and depressing fashion. They passed a bill applying set of band-aids to the highway trust fund, allowing it to limp forward until May of next year.

The trust fund is the main funding source for the nation’s ~$40-billion-per-year national transportation program, and it relies in turn on gasoline tax receipts to replenish it. The federal gas tax level hasn’t budged since 1993, although revenues have increased thanks to higher vehicle miles of travel. This hasn’t kept up with inflation, though, and now the program faces chronic shortfalls. So on the eve of the deadline set by U.S. Transportation Secretary Foxx for implementing new “cash management procedures” clamping down on federal outlays to states (see letter to state transportation secretaries here), Congress came up with, um, some alternative means of keeping the trust fund afloat. Specifically, they passed “pension smoothing” which basically siphons money from retirement accounts, siphoned other money from custom fees, and also from the Leaking Underground Storage Tank (LUST, a favorite acronym among policy wonks) program.

Both extensions of the transportation law and such budget gimmickry are sadly now longstanding practice in the Capitol. 1998’s Transportation Equity Act for the 21st Century (TEA-21) was enacted after nearly a year of extensions of previous law. 2005’s Safe, Affordable, Flexible, Efficient Transportation Equity Act – A Legacy for Users (SAFETEA-LU) consumed about two years of the legislative calendar. 2012’s Moving Ahead for Progress in the 21st Century (MAP-21) ate up three years…and it’s a two-year law.

There were a few last-minute fireworks last week. Senator Toomey of Pennsylvania decided to grandstand on the issue of environmental reviews, a favorite whipping boy for some in Congress. Specifically, his bill would have waived reviews and protections under a slew of laws (e.g., the Clean Water Act, the Wild and Scenic Rivers Act and the National Environmental Policy Act) when rebuilding after a natural disaster, in spite of the fact that current law offers flexibility in the case of disasters while allowing for some oversight of construction practices when spending our taxpayer dollars. Appropriately, his bill fell short of passage (47-50).

And the big surprise was a bill offered by Senators Boxer, Carper and Corker, which would have done away with some of the “pension smoothing” chicanery and caused the law to expire in December of this year. This would have been more fiscally responsible, and it would have given Congress a chance to work on a longer-term reauthorization of law during the “lame-duck” session this fall when policymakers may be more willing to show courage given how far away the next election is and with some of them headed to retirement regardless. I think even the sponsors of the bill were shocked when it passed easily by garnering 66 votes in favor (31 against).

And now Congress moved into Wednesday on their last workweek before recess. And then the wheels came off. It turns out there was a drafting error which left the Senate bill as amended about $2 billion short of funding. And the House sent its own original bill extending the program to May right back to the Senate. On Thursday night, the Senate yielded and passed the House bill with a total of 81 votes.

As is often the case, Tanya Snyder of Streetsblog turned in the best reporting on the state-of-play during the final showdown and about some of the implications moving forward including a great summary quote about the anemic policy debate from Joshua Schank of the Eno Center for Transportation (who has some good prescriptions for the program here): “It’s like, ‘Are we going to shoot ourselves in the foot or are we going to shoot ourselves in the head?’”

Joshua (along with Emil Frankel, with whom he ran the Bipartisan Policy Center’s transportation program) deserves special credit for his relentless, hedgehog-like focus on the need to overhaul the national program so it is “performance-driven.” And that’s where he wants the focus to be now as well – how is the program performing? What investments are needed to improve performance? How do we ensure the greatest possible performance return on our investments?

Of course this begs a key question – what is “performance”? Pursuant to MAP-21, for the first time U.S. DOT is in the midst of a series of rulemakings (pdf of schedule is here) to define several of the categories of metrics for assessing performance. States and MPOs relying on federal dollars must then follow suit. This means that, in terms of making this program as cost-effective as possible, the exciting and productive work is happening at the other end of Pennsylvania Avenue.

So, to sum up: Congress has once more addressed a long-term program facing chronic funding shortfalls with a short-term patch with no associated policy innovation. Meanwhile, technical staff in the implementing agency hammer away at policy advances that could improve use of taxpayers dollars and efficacy of a federal program.

It’s Groundhog Day in the transportation world.