The Reflecting Pool

Real ID Revelations

Federal officials usually are pretty circumspect when it comes to talking about proposed regulations making their way through the labyrinth otherwise known as the federal bureaucracy.  There actually is a law that tells them what they can say and when they can say it.  It was at least a little out of the ordinary, then, that a half dozen state legislators got an informal briefing on Tuesday on the regulations state officials need if they are going to comply with the Real ID act.  The conference call, led by Richard Barth, the Department of Homeland Security assistant secretary in charge of Real ID implementation, may have been unorthodox, but it is very understandable.  Real ID has become a public relations—more accurately, an intergovernmental relations—catastrophe for the department. The Real ID law itself, with its micromanagement of state driver’s licenses and its huge costs, has many state legislators and governors in rebellion; and, the department has compounded the problem by taking two-and-a-half years to produce the regulations. 

The likable Mr. Barth, whose background includes work at the National Security Council during the first Bush administration, began the call with NCSL President Donna Stone and the five other legislators by apologizing for the long delay in releasing the regulations.  He indicated they might be published sometime this month, but said it’s possible they won’t be out until the end of the year. 

What he really wanted to talk about, though, was how much the regulations have changed since March when the department released them for comment—and how responsive the department has been to the recommendations made by NCSL, the National Governors Association and the American Association of Motor Vehicle Administrators.  Because this was an extracurricular peek behind the curtain, there was nothing in writing.  But, Mr. Barth’s description of the rules left the legislators thinking that DHS really has listened.  Mr. Barth says they basically tore up the March draft and started over.  The biggest concessions would appear to be on the process for re-enrolling drivers.  The original proposal gave states only five years to move current drivers to the new cards—a time period guaranteed to cost states a lot of money and to cause long, long lines at motor vehicle stations.  The new version extends the re-enrollment period to ten years—the recommendation that NCSL, governors and motor vehicle administrators had made in the spring.  It will let states focus their initial re-enrollment efforts on drivers under 50, recognizing that older drivers are much less likely to hold fraudulent licenses.  It will encourage states not to try to re-enroll, early in the ten-year period, holders of Department of Defense and other federal IDs, thereby reducing the number of re-enrollments that have to be done in the first five years.  According to Mr. Barth, the department has made numerous other concessions, including loosening up on some of its rigid requirements concerning the card stock for Real ID licenses. These changes, again according to the Assistant Secretary, will result in drastically reduced official estimates of how much Real ID will cost the states.

If the final regulations are close to Mr. Barth’s description, they’ll present a policy position dilemma for NCSL’s leadership and members.  Our official statement, adopted at the 2006 NCSL annual meeting, is that the federal government should fix and fund Real ID by the end of this year.  If it doesn’t, then NCSL would move into a posture of favoring full repeal of the law.  That, not surprisingly, has DHS worried.  During Tuesday’s call, Mr. Barth was forthright in asserting his hope that, in response to the regulations, NCSL will not move into repeal mode on January 1.  That call ultimately will be made by NCSL’s membership.  State legislators will have to decide whether the regulations truly have fixed the law.  They’ll also have to determine what to do about the funding part of the “fix or fund” equation.

Following the call, NCSL’s leadership invited Secretary Barth to speak to the delegates to the Fall Forum in Phoenix at the end of this month.  He has accepted and will make his case on Friday morning, November 30. 

Transportation in Crisis?

The future of the country’s surface transportation system clearly is on the minds of state and federal officials.  In early October, state legislators and legislative staff had two separate opportunities to discuss state priorities for the coming year and beyond.  Transportation and transportation funding topped the lists both times.  The first came during an orientation and planning meeting conducted for the new officers of the NCSL standing committees.  The second was a priority-setting exercise done during the fall meeting of the organization’s Executive Committee.  In each case, legislators and staff voiced concerns about replacing existing infrastructure, building new roads and mass transit, mitigating congestion and figuring out how to pay for any of it.

Wednesday, NCSL’s new working group on transportation funding held its inaugural meeting in our nation’s capital.  The group, led by Oregon Senator Bruce Starr and Washington Senator Mary Margaret Haugen, is charged with preparing the organization for the next round of negotiations over the federal surface transportation law, currently dubbed SAFETY-LU, which is due to expire in 2009.  The group set the stage for its year-long deliberations by meeting with a panel of three national transportation experts—Susan Binder, executive director of a U.S. DOT commission; John Horsely, executive director of the American Association of State Transportation Officials; and Joanna Turner, transportation lobbyist for the National Governors Association.

According to the panel, there is no question the nation’s transportation system is in crisis.  The highway trust fund is on the brink of bankruptcy.  Gas taxes, once a relatively dependable revenue source, now may be obsolete.  Construction delays triple the costs of projects once they finally get underway.  Bridges are collapsing or are about to.  Congestion and driving patterns contribute to climate change.  Housing and land use policies exacerbate transportation problems.  The aging of the population and the desire of the new elderly to “age in place” presents new kinds of demands on the transportation system.  The exponential growth in congressional earmarks ignores state priorities and eats into the limited funds available to each state.  Donor states are frustrated that they don’t get their revenues back; donee states think they should get more, too.

Putting an optimistic face on all of this, Senator Haugen noted that it often “takes a crisis to promote real change.”  That belief is clearly driving the approach other organizations are taking in the relatively long run-up to the 2009 reauthorization of the current law.  Susan Binder argued this round needs to be treated as an “authorization,” not a “reauthorization,” meaning a new law must be more than business as usual.  John Horsely described a recent “visioning” exercise that his organization undertook, with the goal of coming up with a new approach to surface transportation.  Joanna Turner said that governors decided recently to scrap NGA’s long-standing policy statement on surface transportation and is starting over.

Not too far into Wednesday's discussion, Senator Haugen held up a copy of NCSL’s current transportation policy statement and said that she thought “we need to throw this out” and start over.  Her colleagues around the table agreed--no minor tweaks, no simple wordsmithing, rather a wholesale, fundamental reassessment of the approach state legislatures believe is right for the country’s transportation system.  It’s a very daunting challenge, but one of critical importance.  No doubt it will keep the working group out of trouble and off the streets—pun intended.