The Reflecting Pool
In This Article
- Real ID: Genuine Consultation or Going Through the Motions?
- Real ID: With Friends Like This
- Anger Over Real ID Unprecedented?
Related Items
An eye on the state-federal relationship.
By Carl Tubbesing
May 9, 2007
Real ID: Genuine Consultation or Going Through the Motions?
Yesterday was the deadline for filing formal comments with the Department of Homeland Security on its proposed regulations for implementing the Real ID Act. Department officials report that more than 12,000 associations and individuals submitted responses. Given that volume, not to mention the controversy the proposed regulations have provoked, it will take the department at least until late summer to produce final regulations.
From the time the department released the proposed regulations in early March until yesterday’s deadline, DHS officials, led by Assistant Secretary Richard Barth, conducted an active campaign to elicit questions and suggestions from state legislators, governors, motor vehicle officials and others.
The list of encounters with state legislators alone is pretty extensive. Barth fielded questions and comments at a plenary program at NCSL’s Spring Forum. His staff met with our Homeland Security Task Force. Massachusetts Senator Richard Moore represented NCSL at a DHS-sponsored stakeholders meeting in mid-April. Just last Friday, Barth and his colleagues conducted a “webinar” exclusively for state legislators and staff, who listened, e-mailed and called in their concerns.
Most federal rule-makings don’t involve this much formal and informal consultation. Then, again, most federal rule-makings aren’t as controversial as this one. The question for state legislators is whether any of it—the thousands of pages of comments or the consultations—will make any difference. There are many who doubt it. They fall back on the “you can’t make a silk purse out of a sow’s ear” adage, the sow’s ear being the Real ID law itself, which is so flawed, misguided, heavy-handed and (fill in your own adjective here) that they say not even the most responsive regulations can salvage it.
Nevertheless, NCSL, choosing to fight the Real ID battle on several fronts at once, filed formal comments yesterday in cooperation with the National Governors Association and the American Association of Motor Vehicle Administrators. Our comments focus largely on ways to reduce state costs. For example, they urge that states be allowed to re-enroll current drivers over a 10-year period, rather than five, and they argue that certain populations—say, people who have a military ID—should be exempted from the law’s requirements. They also insist that states not have to use federal electronic verification systems until they are actually available. The latter is only logical and reasonable, but this is, I regret to say, a federal agency with which we are dealing. So it’s best not to take any chances.
Real ID: With Friends Like This
The Pool will try not to do this too often, but sometimes an old saw (actually two in the case of this column) just seems to fit. Department of Homeland Security officials must have been wondering yesterday where their friends were when their very own privacy panel refused to endorse the Real ID regulations. The 18-member committee said the proposed rules do not adequately address privacy, information security and other related concerns. This news is real fodder for the American Civil Liberties Union and other groups who stridently oppose Real ID on privacy grounds.
Anger Over Real ID Unprecedented?
A New York Times reporter called yesterday. Writing on deadline, he needed a quote. His question: “Have state legislators ever been as angry as they are over Real ID?”
“Ever,” of course, is a long time and, being an NCSL employee who learned to hedge his bets many years ago, I said, “It’s without precedent in the past 20 years.”
No Child Left Behind probably comes in second. The difference between Real ID and NCLB is that NCLB really didn’t offer legislatures a choice. (When the Utah Legislature threatened to opt out of No Child Left Behind, the Department of Education told its leaders they risked losing all of their federal education funding, not just the state’s NCLB money.) States can choose not to make their driver’s licenses “Real ID compliant,” if they are willing to tell their drivers they can’t use them to get on airplanes or to enter federal buildings.
According the NCSL’s Matt Sundeen, who is tracking this activity for us, the Washington, Montana and Idaho legislatures have passed bills so far this session that will prohibit their states from complying. Seven others have adopted resolutions urging Congress to repeal the law. (Track the status of bills at our Real ID website.)
That’s enough for the lead editorial in the May 8 Wall Street Journal to call this “The Real ID Revolt” and to say that Wisconsin Congressman James Sensenbrenner, architect of the Real ID, should be invited to “explain the national revolt against his handiwork."
All of this—the state actions and the media attention—makes NCSL’s goal of “fixing and funding it” by the end of the year more achievable—not, of course, without a lot more work and pressure from state legislatures.