Political football is the real game, when it comes to assessing transportation authorization

By Jeff Berman, Group News Editor · October 12, 2020

While the National Football League’s season is ostensibly on the brink of shuttering, due to the issues related to the ongoing COVID-19 pandemic, the game of political football inside the nation’s capital remain alive and well.

That was made more than clear in late September, at the end of the fiscal year, when the White House signed a one-year continuing resolution for the Fixing America’s Surface Transportation (FAST) Act, the five-year federal surface transportation authorization, which was set to expire on September 30.

This signing is a good thing, in theory, but, at the end of the day, it is not enough, and much more than kicking the political football, as was the case here, is going to change that.

What’s more, with the election only weeks away now, as hard as that may be to believe, whether President Trump holds office, or should the Democratic nominee Joe Biden take over, will need to be up to the moment and address this years-long challenge.

That was a key theme of a recent conversation I had with James Burnley, a partner at Washington, D.C.-based law firm Venable LLP and former Secretary of Transportation under the late President Ronald Reagan.

Burnley was direct, as he always is, in outlining the partisan impacts of the election on transportation infrastructure.

“There are issues that will be very succinctly influenced by the outcome of the election, such as the extent to which the Green New Deal approach is the basis for a bill, which is what I expect will happen if the Democrats win the Presidency and the Senate, he said. “If the Republicans hold the Senate and the Presidency and gain some House seats, if not the majority, then I think by that token, we would see the basis for a bill, at least on the highway part, that would look much more like the bill that the Senate EPW Committee issued earlier this year.”

As for the current state of bills proposed on each side of the aisle, the Senate Environment and Public Works Committee, in July 2019, unanimously passed a $287 billion, five-year surface transportation bill. But three other Republican-led Senate committees—Commerce, Science and Transportation, Banking, Housing and Urban Affairs, and Finance—have sat on it and failed to act. And the Democratic-led House passed a five-year, $494 billion bill on July 20 without any Republican support. Senate Republicans have shown no interest in compromise on that measure.

Regardless of these (alarmingly typical) impasses, the kicker of it all goes back to what Burnley described as the immutable fact hanging over the entire process, is, of course, how any future authorization is funded. No surprises there. Even if you can move the ball well, if you end up putting, it probably was not much of a drive, to begin with.

“Unfortunately that has been the case for a very long time because the Highway Trust Fund is now so far underwater that Congress will now need to promote a new [fundraising] scheme, whether it is for raising fuel taxes or a whole new approach, whether it is a vehicle miles travelled) VMT tax or a combination thereof to pay for programs going forward to surface transportation,” he explained.

And it is not a game that can likely go on forever, as Burnley noted how it is unlikely that committees in congress that are not involved in surface transportation, nor the appropriators, are going to continue to just acquiesce for ever-increasing transfers out of the general treasury fund to the HTF.

That has been going on for years, and it is clear it is not working.

When asked if the one-year extension of the FAST Act could be viewed as a positive, Burnley noted that it is, of course, better than not having it extended, as not doing it would lead to a crisis. But, as he has said myriad times, when it comes to a multi-year authorization bill, these short-term extensions, whether they are for a month or a year simply don’t get the job done.

“To put it another way, I think we have gotten to the point where the gap is just too big between revenues and outlays…given the revenue shortfall,” he said. “Whatever the next administration’s plan may be, that will have to be dealt with. I don’t think you can view the extension as anything other than Congress kicking the can down the road again. I don’t think it is particularly positive. It is spin as usual. It is not going to suffice. The new congress and Presidential outcome will have a lot a lot of pressure on key decision makers to come to grips with the huge gap now between revenues dedicated to the HTF and what is actually needed.”

When it comes to this issue, Burnley’s take is spot on. As always, there are more questions than answers, but it is fourth and long, and the punt team is coming out onto the field….again.

October 12, 2020