Four Times the Government Held Highway Funding Hostage

If Congress were to lose the Highway Trust Fund, it would also lose a powerful tool to keep states in line.

A section of historic Route 66 parallels Interstate 40 near Prewitt, New Mexico.
National Journal
Brian Resnick and Emma Roller
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Brian Resnick Emma Roller
July 16, 2014, 1 a.m.

The fed­er­al gov­ern­ment can’t force states to com­ply with all of its whims. But it cer­tainly has the means to put the pres­sure on.

Con­gress is de­bat­ing how to ex­tend fund­ing for the High­way Trust Fund, the money that has in the past ac­ted as the fed­er­al gov­ern­ment’s muscle in en­for­cing laws at the state level. The House voted to patch the fund on Tues­day, two weeks be­fore the trust ran out of money to main­tain the na­tion’s roads.

In the past, the gov­ern­ment has used fed­er­al high­way fund­ing as a way to lever­age states to com­ply with driv­ing-re­lated laws — es­tab­lish­ing a speed lim­it in Montana, for ex­ample — as well as more tan­gen­tially re­lated laws. Un­der the 10th Amend­ment, powers not ex­pli­citly giv­en to the fed­er­al gov­ern­ment are re­served for the states. But un­der its au­thor­ity to reg­u­late in­ter­state com­merce, Con­gress can threaten to with­hold es­sen­tial fed­er­al fund­ing for high­way in­fra­struc­ture if states do not com­ply.

The pre­ced­ent for the fed­er­al gov­ern­ment hold­ing its high­way fund­ing host­age goes back to a 1987 Su­preme Court case. The case, South Dakota v. Dole, dealt with the na­tion­al drink­ing age, and found one of the Con­sti­tu­tion’s art­icles but­ting up against one of its amend­ments. The Court found that, un­der the spend­ing clause of the Con­sti­tu­tion, the fed­er­al gov­ern­ment could with­hold high­way funds, thereby ex­ert­ing its con­trol over the states.

The High­way Trust Fund was es­tab­lished in 1956 along­side Pres­id­ent Eis­en­hower’s mo­nu­ment­al in­ter­state pro­ject, and has since been fun­ded largely by gas taxes. But due to a com­bin­a­tion of changed driv­ing habits and in­creased fuel ef­fi­ciency, that trust fund has been yield­ing smal­ler and smal­ler rev­en­ues in re­cent years. “If Con­gress fails to fund it, it runs out of money,” Pres­id­ent Obama said Tues­day. “That could put nearly 700,000 jobs at risk.”

Without the trust fund, Con­gress loses a power­ful means to keep states in com­pli­ance with na­tion­al stand­ards. Here’s a look at some of the is­sues that have hinged on the fate of the fund.

Drink­ing Age

Most fam­ously, the High­way Trust Fund was used in 1984 to get states to com­ply with the new na­tion­al drink­ing age of 21. States that did not com­ply with the Re­agan ad­min­is­tra­tion’s drink­ing-age law would see 10 per­cent of their fed­er­al high­way funds — in some states, sev­er­al mil­lion dol­lars — cut. All of the states even­tu­ally com­plied, and the U.S. con­tin­ues to have the highest drink­ing age in the world.

Speed Lim­its

In 1974, in the midst of the Ar­ab oil em­bargo, Pres­id­ent Nix­on and Con­gress set the na­tion­al speed lim­it at a saun­ter­ing 55 miles per hour, in or­der to ease the de­mand for gas­ol­ine, and tied states’ com­pli­ance to high­way fund­ing. Con­sequently, ac­cord­ing to a pa­per in the Amer­ic­an Journ­al of Pub­lic Health, “road fatal­it­ies de­clined 16.4%, from 54,052 in 1973 to 45,196 in 1974.”

In 1995, high­way fund­ing was used as lever­age again — only this time to states’ ad­vant­age. The Re­pub­lic­an Con­gress, cham­pi­on­ing states’ rights, au­thor­ized fund­ing for the na­tion’s high­ways, but only if speed lim­its could be de­cided by the states. Pres­id­ent Clin­ton signed the meas­ure re­peal­ing the na­tion­al speed lim­it, but cau­tioned: “I am deeply dis­turbed by the re­peal of both the na­tion­al max­im­um speed lim­it law and the law en­cour­aging states to en­act mo­tor­cycle hel­met use laws.”

Not wast­ing any time, Montana de­cided to drop num­bers from their speed-lim­it signs al­to­geth­er. On rur­al roads, the state gave the tan­tal­iz­ingly vague in­struc­tion that cars should travel at a “reas­on­able and prudent” speed dur­ing day­light hours, thus earn­ing the nick­name the “Montana­bahn.”

One blog post com­par­ing the Montana­bahn to the Ger­man Auto­bahn ex­plained the dif­fer­ence between the two su­per­high­ways like this: “While you have few­er people to worry about per mile in Montana, you have more an­im­als to worry about per mile, es­pe­cially at night.”

Con­sequently, traffic deaths in Montana spiked — 1997 was the most deadly year for Montana roads in a dec­ade. In Decem­ber 1998, the Montana Su­preme Court ruled the “reas­on­able and prudent” speed lim­it un­con­sti­tu­tion­al after a man suc­cess­fully chal­lenged a speed­ing tick­et up to the state’s top court, an­chor­ing his case on the vague­ness of the law.

After the speed lim­it was en­forced, well, more people were caught speed­ing. Ac­cord­ing to a 1999 As­so­ci­ated Press re­port the num­ber of speed­ing tick­ets over Fourth of Ju­ly week­end in 1999 more than doubled com­pared with pre­vi­ous years, “from 340 a year ago to 862.”

Mo­tor­cycle Hel­mets

In 1975, the gov­ern­ment lever­aged the High­way Trust Fund to man­date that mo­tor­cyc­lists wear hel­mets. Mo­tor­cyc­lists were not pleased.

“It should be clearly noted that the is­sue is not wheth­er hel­mets are good or bad, nor has it ever been,” Eu­gene Wir­wahn, a lob­by­ist for the Amer­ic­an Mo­tor­cyc­list As­so­ci­ation, said at the time. “The key point is wheth­er a gov­ern­ment­al bur­eau­cracy has the right to use fisc­al black­mail to force the man­dat­ory use of hel­mets.”

Con­gress flip-flopped on the hel­met law — strik­ing down the 1975 law, then re­in­stat­ing it in 1991. Fi­nally, Clin­ton signed a law in 1995 that both elim­in­ated the 55 mph speed lim­it and the hel­met rule. Today, three states — Illinois, Iowa, and New Hamp­shire — still have no re­quire­ments that mo­tor­cyc­lists wear hel­mets.

Tex­ting While Driv­ing

In 2009, Sen. Chuck Schu­mer sought to force states to out­law tex­ting while driv­ing by mak­ing the meas­ures a pre­requis­ite for high­way fund­ing. The meas­ure failed, but it would have re­duced states’ high­way budget by 25 per­cent if they did not com­ply.

With­hold­ing high­way fund­ing may not be the sex­i­est form of polit­ic­al ma­nip­u­la­tion. You prob­ably won’t see Frank Un­der­wood scream­ing about pave­ment sub­sidies in a House of Cards epis­ode any­time soon. But as a way for Con­gress to leg­ally cir­cum­nav­ig­ate the Con­sti­tu­tion to get its way, it’s as crafty as they come.

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