Highway Kabuki Dance

Apr 15, 2012

On Wednesday, the House will vote on yet another 90-day extension of highway and transit policy. The legislation would also include some language on the Keystone XL Pipeline and be considered under a closed rule, meaning no amendments are permitted. This extension differs from the previous nine extensions in that its purpose is to be a vehicle to a conference committee with the Senate-passed bill (S.1813).

Conservatives are typically leery of conference committees and in December, House Transportation and Infrastructure Committee Chairman John Mica (R-FL) inadvertently revealed why: "Those are kabuki dances anyways."

The kabuki dance is more dramatic than usual this time because the House has no policy from which to negotiate, as it has not passed a bill. Instead of "allowing the House to work its will," House leaders are using a shell bill to bypass lawmakers - conservative and liberal alike. Even the now-draconian Senate considered more than 20 amendments before passing its bill, which was widely condemned by House Republicans.

Speaker John Boehner (R-OH) said the "pay-fors . . . are what I call gimmicks" and "[Senators] run down the Highway Trust Fund to virtually nothing." On the House floor, Subcommittee chairman Bill Shuster (R-PA) added, "And oh, by, the way, by the time we pass-if we pass-the Senate bill, it will be a 16-month bill. It's just another extension. It doesn't have reforms in it."

Even though the House could not formulate good policy through its own process, leaders now seem to be saying good policy can be derived from this kabuki dance. We can be certain good policy will not come, though. According to CQ (sub. req'd) there are no plans to bring up H.R.7, the Boehner-Mica bill:

"House negotiators will use HR 7 as the basis of negotiations and will work for those reforms," a House GOP leadership aide said, referring to proposals that would restructure highway assistance programs and streamline environmental approvals."

Transportation Weekly notes that strategy may be problematic though:

"...the key question then becomes the "scope" of the conference. Conference committees are not supposed to include matter that was not in either bill, nor should they exceed the scope of the disagreement between the two chambers."

Not only is the "scope" limited, but Senate Democrats have very little incentive to compromise with House Republicans. The Senate bill passed with unanimous Democrat support, along with half their Republican colleagues. Within the "scope" of the conference, House Republican negotiators have almost no starting point to negotiate, aside from the Keystone language. If they had passed their July proposal, it would be an entirely different dynamic.

Of the kabuki dance, one industry lobbyist observed, "OK, we have a strategy here." What will that strategy yield? Politico's Morning Transportation notes the likely outcome:

"The goal of that measure, which includes a second 90-day transport stop-gap, is to conference with the Senate - where Republicans in the lower body hope they can force senators to attach the Keystone language to their transportation bill, MAP-21. "

For anyone interested in good policy, that should be concerning.

First, the Keystone XL Pipeline language may end up being nothing more than symbolic. Although the language would require the Federal Energy Regulatory Commission (FERC) to make a decision on the pipeline within 30-days, the FERC has already warned that such a timeframe is insufficient. What's more, testimony from one FERC official reads like a blueprint for radical environmental groups determined to take any pipeline approval to court. A better approach would have been H.R.4000, the Energizing America through Employment Act, which would have essentially approved construction of the pipeline.

In addition to questionable Keystone language, the Senate bill has many additional flaws:

  • Levies $12 billion (over ten years) in permanent revenue raisers (taxes and fees) to offset 15 months in spending;
  • Changes in corporate accounting procedures will expose taxpayers to future bailouts of the Pension Benefit Guaranty Corporation;
  • Rewards states whose congressional delegations were successful in obtaining above-the-line-earmarks in SAFETEA-LU by locking in those higher funding levels;
  • Managers' Amendment includes $5 billion transfer from the general fund, i.e., a bailout;
  • Managers' Amendment also creates a new National Endowment for the Oceans, Coasts and Great Lakes and reauthorizes the Land and Water Conservation Fund for 7-years at $1.4 billion;
  • Ken Orski notes "another provision in the Managers' Amendment appears designed to deny state departments of transportation the full authority to decide which types of 'enhancements' are funded with federal dollars;" and,
  • As Senator McConnell explains, it "basically prevented the innovative effort by governors, like Mitch Daniels, to do outside-the-box funding mechanisms for their state highway systems."

The Senate bill represents more of the same, and runs contrary to a letter Chairman Mica sent to the Chamber of Commerce last July:

"The American people sent a clear message in electing a U.S. House to change the way business is conducted in Washington. Thanks to recent and coming elections, the priorities of the American Taxpayer have been and will be placed ahead of the unchecked desires of some in Washington to spend money that is borrowed to support our Treasury. This new reality has proven to be frustrating for some in Washington who even fail to consider positive alternatives for supporting transportation project and simply resort to deficit spending 'come hell or high water.'"

Chairman Mica when on to say that a "continuation of deficit spending and General Fund transfers will destroy the dedicated, user fee-based Trust Fund." It was a solid letter, which rightly noted the new reality while taking the Chamber to task for supporting an increase in the gas tax. But things change fast in Washington, and the Senate-passed bill rejects the new reality.

Lawmakers and their constituents should understand that a vote for the 90-day extension enables the Senate-passed bill to become law. Wednesday's vote is nothing more than a face-saving kabuki dance that ignores the "clear message" sent by the American people just 17 months ago.