Travel these days can be especially hazardous to one’s health (if Kevin Nealon’s Mr. Subliminal were here he would whisper, “Jet Blue”). But it is true for every airline; on a recent trip out West, I had two United flights — one going to Denver, one returning from Orange County, Calif. — canceled the night before they departed, leading to a mad scramble to find alternatives. But I did get there and back, and in return for the hassles I learned something in each place. [IMGCAP(1)]
In Denver, I learned about the upheaval and uproar caused by an initiative overwhelmingly passed by Colorado voters in 2006 to tighten up government-related ethics. Amendment 41, among other things, banned gifts or meals of more than $50 to lawmakers, state employees and their families. But the vague wording of the initiative led the state attorney general to conclude that “gifts” include academic scholarships offered to children of state employees — or academic awards, such as Nobel Prizes, offered to state university professors.
The Denver Post, the Rocky Mountain News and other Colorado papers have had poignant stories about kids with sterling records wondering if they can go to college at all because their promised scholarships are now in limbo — and their parents, who are clerks or technicians in state agencies, can’t afford their tuition otherwise.
Obviously, the intent of the drafters of Amendment 41 was not to stick it to quality students or brilliant academics. It was to create a stronger ethical climate for politics and governance in an era where there really has been a culture of corruption. But poor drafting and ambiguous wording has created a bevy of awful unintended consequences — made even more awful by the fact that this is an initiative, adopted directly by voters.
The very nature of initiatives, a way for voters in a state to bypass the legislature and elected officials, makes it likely unconstitutional for the legislature to amend or change the result. Lawmakers of both parties are scrambling to do just that — pass a new law clarifying the initiative and push for an early resolution in the state Supreme Court. The alternative is to draw up another initiative to clean up the mess and give it to voters in 2008. But in the meantime, thousands of good kids could get screwed. No doubt other bad and unintended consequences will ensue.
In California, I saw a Los Angeles Times story about the Real ID Act. This was nothing new to me — I have seen many stories in many states about the law — but this was particularly vivid. The head of California’s Department of Motor Vehicles warned that the law will cost California alone $500 million to put the program into effect, and it simply cannot be done on the time frame built into the legislation. Virtually every state has raised bright red flags over a law they say imposes a staggering $11 billion unfunded mandate on them collectively — while allocating a paltry $100 million to defray the costs. There also are serious questions about privacy for drivers because of the law’s requirement that states share driver’s license information nationally by linking databases. All the requirements are on an expedited schedule.
The call for a national ID for national security purposes has been widespread and understandable. It was embraced by the 9/11 commission. Britain is pursuing a comparable course. But it also is highly controversial and touchy, and not just because of the cost and the difficulty of maintaining privacy for the encrypted information on the ID card. The issue crosses over into the immigration realm and also into the resistance to any photo ID requirement from many in minority communities, including African-Americans and American Indians. When the Commission on Federal Election Reform, co-chaired by former President Jimmy Carter and former Secretary of State James Baker, took the Real ID Act and piggybacked onto it a recommendation to use it as a voter ID, it triggered a firestorm of opposition.
The biggest problem here, though, is that Real ID was jammed through the House Judiciary Committee by then-Chairman Jim Sensenbrenner (R-Wis.) with few hearings and less deliberation, and then hurried through the rest of Congress in early 2005. The legitimate concerns raised at the time about unfunded mandates, high overall costs, the direct costs to people getting the IDs and the security of databases and of the information on the cards were dismissed out of hand by Sensenbrenner. Now many of the warnings raised, and ignored, at the time are proving true.
Amendment 41 and the Real ID Act show the perils of sloppy drafting that comes from a lack of deliberation and vetting. This problem is endemic with initiatives and referendums, which wholly lack an amendment process to correct errors or make adjustments along the way. The price for sloppiness can be considerable. The problem does not have to be endemic to Congress, which is built around a deliberative process, including subcommittee and committee hearings, markups, floor debate with amendments and votes, all doubled by the parallel processes in two chambers, and then a conference committee for one final bite of the apple.
But as we know, that deliberative process was tossed out the window repeatedly in the past few Congresses. The botched Real ID Act, the sloppy bankruptcy bill, the awful expedited House elections bill — all show what happens when input from Members and outside groups is brushed aside to get something done or to satisfy the imperial whims of an autocratic chairman and leader.
These examples should serve in particular as a cautionary tale for the Democrats who now have the reins of power in Congress. Bad process leads to bad policy. It is your turn to create good process and make better policy. We are waiting — and watching — to make sure that happens.
Norman Ornstein is a resident scholar at the American Enterprise Institute.