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Rule or Ruse?: Transportation Bill Rule Can't Be Allowed To Disguise What's Actually Going On

David Goldston

Posted February 15, 2012 in U.S. Law and Policy

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The House today will begin debating Speaker Boehner’s transportation package.  There are many ways to describe this legislation – a gallimaufry of bad ideas; a collection of the most extreme versions of proposals on the right wing’s wish list; an over-stuffed omnibus careening off the edge of a cliff.  As my colleague Deron Lovaas has pointed out, the one thing it can’t be described as is a serious effort to formulate transportation policy.  For that, one has to look to the Senate, where against all odds, a bipartisan transportation bill that actually focuses on transportation is making its way to the floor.

But the content of the House bill is taking a back seat momentarily to the rule that will govern how the measure is debated.  (Before taking up a bill, the House passes a rule setting time limits on debate and providing how it can be amended.)  Faced with the strong possibility that the overall package would go down to defeat, the House Republican leadership decided on a clever gambit:  the package will now be voted on in three separate parts, which will then be automatically recombined after passage. 

This is a divide-and-conquer strategy – split up the votes against the package into three separate pots, so each portion has enough to pass.  You might say this is dividing gall into three parts.  One part of the package would vastly expand the areas of the country open to oil drilling, one would alter the federal pension system, and one contains the actual transportation provisions.  But as of now, that transportation piece, in particular, still may not have the votes to pass. 

The House leadership tried to put on a brave face in announcing this procedure, describing it as an effort to keep their promise to have more open floor procedures.  But that’s not exactly what’s going on here, to put it mildly.  The procedural stratagem is a “Hail Mary” pass to try to salvage the bill while playing for time and trying to make conservative Democrats cast uncomfortable votes.   It’s not an effort to improve the process, and it’s certainly not an effort to improve the bill.

The official explanation borders on the farcical.  Here’s why.  For starters, part of what determines whether a procedure is open is how much time is allotted for debate and how many amendments are permitted.  Dividing the bill into three doesn’t change any of that; the Rules Committee could have allowed just as many, or as few, amendments and the same time for debate if the whole bill were being kept together.  It’s like claiming you’re going to be more successful at getting the stain out of a dirty shirt by ripping it into three pieces before washing it. 

Worse, under the rule, the three pieces will be automatically reassembled at the end without a further vote.  It’s like sewing that shirt back together and making you wear it without giving you a chance to see if it’s still stained. 

The procedural spectacle shouldn’t be allowed to mask what’s actually going on here.  If the bills pass, the House will still be sending to the Senate a single transportation package that has no chance of becoming law – a “bill to nowhere,” some have called it – when the Senate is showing that Congress could produce a measure that would produce tangible transportation improvements and the attendant additional jobs.  The House has opted instead for point scoring and ideological catharsis. 

The rule also affords opportunities for Republican Members to look like they’re trying to kill bad provisions while avoiding the toughest votes that would actually be required to derail the package.  A Republican opposed to requiring offshore drilling in the Northeast, for example, could (and should) vote against the portion of the package that deals with oil drilling.  But if that portion passed anyway, then the only way to truly kill the provision would be to vote against the transportation portion of the package (H.R. 7) – it’s that vote that will actually determine whether the package will be sent on to the Senate.

Will Members vote against H.R. 7 to make the votes they cast on early portions have real effect?  Leadership is betting the answer is “no.”  That’s why it’s a divide-and-conquer strategy – and another reason that it’s absurd to describe the procedure as an effort at openness.  It will allow Members to disguise the real impact of their votes, and is an attempt by House leaders to pass a package the House doesn’t actually support.

At the same time, this division of the bill into three pieces will require Democrats to cast votes on the separate oil drilling and federal pension portions of the package – an attempt, no doubt, to put some in an uncomfortable position.  But what are these pieces doing as part of a transportation package anyway?  One of the fundamental flaws in the bill – one that has enraged some conservative groups as well as drawing opposition from progressives – is that it moves further away from the practice of relying on transportation users to fund transportation projects.  House leaders could schedule votes on oil drilling or pension changes any time they wanted; those matters are part of this debate only because they suddenly would be used to fund highways.  Splitting out the drilling and pension portions under this rule is a way to draw attention away from a fundamental issue – should revenues and cost savings from these activities be used to fund transportation?  And it’s an effort to make it harder for supporters of, say, drilling to vote down the oil legislation even when they oppose the “drill and drive” idea.     

In the end, the rule for the transportation package, just as much as the package itself, is a model of how not to govern.  Everyone knows that combining disparate elements into one package is an old strategy for trying to force unpopular measures through Congress.  It turns out that splitting packages up (temporarily) can be just as clever a ruse for trying to make Members approve  proposals that they don’t actually support  – and is just as deserving of disdain.

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