In Rinocracy.com, we generally avoid giddy optimism, but we may have gone slightly astray in our recent Special Bulletin titled “Surprise: Republicans May Know How to Govern After All.” On the positive side, the Senate did pass and send on to the House the Trade Promotion Authority as we had urged. On the other hand, the Senate has created yet another serio-comic drama over the NSA Metadata program. And it has again settled for kicking the can down the highway in funding the Highway Trust Fund.
In the Special Bulletin, we had pointed out that the Senate Majority Leader McConnell and other Senate Republicans were resisting Senate approval of the USA Freedom ACT (UFA) passed by the House. The UFA would reform the NSA by taking the data out of the hands of the agency and leaving it with the telecommunications companies. Supporters of the metadata program in its existing form have argued that the program is a valuable element of our intelligence capability and that the threat it posed to civil liberties had been wildly exaggerated (by Senator Rand Paul and others). We firmly agree on both counts, but we saw opposition to the UFA as impractical:
Senator McConnell and others in the Senate, including Marco Rubio, have expressed a preference for continuing the program in its present form, and that would also have been our preference. That option, however, was always difficult because of strong bipartisan support in the House for changing the law. And it became even more difficult in light of the decision by the Second Circuit. The ruling meant that to continue the program, Section 215 would not only have to be extended but strengthened, a prospect that, given the position of the House, seems out of the question. In short it appears that Senator McConnell and the Senate will have to approve the UFA as passed by the House.
Although we think that analysis was sound, and Senator McConnell doubtless heard similar views from others, he chose to ignore them and proceeded with the futile exercise of seeking a series of extensions to the existing statute. Such extensions however, were not only defeated in the Senate, but would likely have been rejected by the House. Moreover, even if extensions were approved by both houses, the program would have been left in a highly dubious legal position in light of the ruling of the Second Circuit. In any case, the Senate is now required to return on Sunday, May 31 in order to take some action before the authorizing statute expires on June 1 with no replacement having been enacted. While it is perilous ever to predict what the Senate will do, we continue to believe that at this point approval of the UFA is the only sensible course. If Senator Paul or others offer amendments to UFA that would further weaken or restrict access to metadata, we hope they will be decisively rejected.
While we have not agreed with Senator McConnell on every issue, we have found him to be a generally pragmatic and responsible legislative leader. Thus we are puzzled by his seemingly quixotic course in this instance. While we are reluctant to remove any tools from the intelligence toolbox, our disappointment and concern over the demise of the current metadata program are eased at least somewhat by the point (frequently emphasized by opponents of the program) that it has not been shown to be the decisive factor in blocking any particular terrorist plot. It is also true that the metadata program in question is only one of NSA’s means of gathering communications intelligence. Indeed, it may be argued that it is not the most significant element either in the usefulness of the data collected or in the threat to civil liberties.
Lawfare, a valuable blog on national security issues, recently quoted comments by Chris Soghoian of the ACLU that we found quite interesting:
So the 215 program that has been disclosed publicly, the 215 program that is being debated publicly, is about records to major carriers like AT&T and Verizon. We have not had a debate about surveillance requests, bulk orders to calling card companies, to Skype, to voice over Internet protocol companies. Now, if NSA isn’t collecting those records, they’re not doing their job. I actually think that that’s where the most useful data is. But why are we having this debate about these records that don’t contain a lot of calls to Somalia when we should be having a debate about the records that do contain calls to Somalia and do contain records of e-mails and instant messages and searches and people posting inflammatory videos to YouTube?
Certainly the government is collecting that data, but we don’t know how they’re doing it, we don’t know at what scale they’re doing it, and we don’t know with which authority they’re doing it. And I think it is a farce to say that we’re having a debate about the surveillance authority when really, we’re just debating this very narrow usage of the statute.
We are not eager for the debate urged by Mr. Soghoian, and we suspect that should it take place, we might be on opposite sides. Nevertheless, his observations provide some context for the debate over Section 215.
On a completely different front, Congress needs to deal responsibly with the more homespun, but still urgent and important, issue of funding the Highway Trust Fund (HTF). While we did not mention this issue in the Special Bulletin, it is also one that demands Republican leadership and bipartisan cooperation. Given that the need is widely acknowledged in both parties, common ground should somehow be within reach.
Authority for highway spending funding was on the verge of expiring when the Senate passed a two month extension that will allow the highway program to continue over the summer. That legislation, however, relies on moneys already in the fund and does nothing to provide the additional financing that is desperately needed. The HTF requires an estimated $11 billion to be sustained just through the end of 2015 and an estimated $175 billion over the next ten years. Finding money for the trust fund is a problem that Congress has wrestled with, and failed to solve, for several years. A major source of the problem is the refusal to increase the gas tax–which has always provided the bulk of the funding for the trust fund and which was last increased in 1993. A long-overdue increase in the gas tax seems an obvious response and it is one that we would be inclined to support. But support for an increase – by the public or in Congress – is hard to come by. In 2014, Republican Senator Bob Corker and Democratic Senator Chris Murphy co-sponsored a bill to raise the national gas tax by 12¢ over the next two years and then index it to inflation, but it was politically unpopular and received little support. The Senators renewed the proposal in January and it received a somewhat less hostile reception, but prospects for passage remain dubious. Moreover, it appears that even an increase in the gas tax would meet only a portion of the expanding demands on the highway system.
Another source of funding, and one supported by the Obama administration, would be to use the proceeds from corporate tax reform by closing corporate loopholes or repatriation of foreign income. Many Republicans, however, appear adamant that any such proceeds be applied primarily, if not entirely, to reduction of corporate rates. Finally, there is the possibility of raising revenue through savings elsewhere in the budget, but when every program has its own stubborn constituency, that is not an easy path either.
The Center for a Responsible Federal Budget has published a detailed plan, “Road to Sustainable Highway Spending,” that offers both a short term and long term solution. The Center is a respected, bipartisan organization managed by highly-experienced public servants. We are not certain how feasible the elements of the CRFB plan are, but we believe that their approach deserves serious consideration by Congress, the Administration and the public. The plan can be found here and its highlights are the following:
- Get the Trust Fund Up to Speed ($25 billion) by paying the “legacy costs” of pre-2015 obligations with savings elsewhere in the budget.
- Bridge the Financing Gap ($150 billion) with a default policy to raise the gas tax by 9 cents after a year and limit annual spending to income.
- Create a Fast Lane to Tax Reform to help Congress identify alternative financing before the gas tax increase and spending limits take effect.
Finally, funding for the HTF is complicated by controversy over the the nature of the projects for which it is used. Although it was created to finance the interstate highway system, Congress has approved other significant applications of the fund. The largest category of other uses is the Mass Transit Account which in 2014 represented approximately $8 billion. Some, including The Wall Street Journal, argue that financing of such projects (and perhaps even highways) should be left to state and local governments. The same argument would appear even stronger with respect to the Transportation Alternatives Program which amounted to $850 million in 2014 for such improvements as sidewalks, bike paths, scenic overlooks, vegetation management, and recreational trails. The non-highway projects supported by the HTF probably command too much political support to be eliminated entirely from HTF, but in any reform of the fund they certainly deserve scrutiny and debate.
While presidential candidates travel the country engaging in dueling platitudes, there is serious work to be done in Congress and we urge our leaders to get on with it.