IN 2011, the state Transportation Commission voted to max out our highway bonding capacity for a decade on a $344 million bond package to build five projects. Only one of the projects scored well on the state’s objective criteria. One — a $105 million interchange to nowhere — hadn’t even been graded. It took a year before the commission finally bowed to public pressure and abandoned the package.
It’s an old story by now, one that hasn’t been repeated since, but the commission is still composed of entirely unaccountable political appointees who understand that their job is to bring the bacon home to their individual districts — not to consider the needs of the state as a whole.
Unless the Senate votes Tuesday to defy the wishes of Senate Finance Chairman Hugh Leatherman, that commission will regain full control of the agency come July 1. That means that instead of the governor replacing the transportation secretary who announced her retirement just last month — as governors have done since the agency was sort of reformed, a little bit, back in 2007 — the unaccountable, horse-trading commission will make that hire.
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The last director the commission appointed before it came under duress in late 2006 dreamed up the bonding program to build 27 years worth of highways in seven years. That program redirected maintenance and repair money to build big new highways that the unaccountable, horse-trading commissioners — and the legislators who appoint them — love so much. And it did a lot to help dig the hole we’re in on road maintenance.
That director also ran an agency that squandered tens of millions of dollars with sloppy or overly generous contracts, engaged in high-level favoritism, ignored the law and deceived the Legislature.
That’s what the Legislative Audit Commission found after one of its most exhaustive, and damning, audits ever. That’s what forced the Legislature to let the governor hire and fire the transportation director, and sort of but not really require the commission to make road-funding decisions based on objective criteria. But the bill included a sunset provision that stripped the governor of that limited power on July 1 of this year, if the Legislature didn’t repeal it first.
A failed fix
The House voted earlier this year to let the governor appoint the commissioners, rather than legislators, as part of its road-funding package. It’s unclear whether the Senate would have gone along with that, but when it became clear that the Senate was not going to pass a road plan this year, Senate Judiciary Chairman Larry Martin proposed adding language to the state budget bill to delay the sunset by a year; that’s the longest you can change state law in the budget bill. The Senate voted unanimously for that change. And when the budget went back over to the House, the House voted 57-45 for the change.
So we were all set to let the governor retain the power to hire and fire the director, while the Senate took another year to decide whether to do anything with road funding. Then last week, House and Senate negotiators threw up their hands and said there was no point in trying to work out an agreement on the budget until the Senate passes a budget-related bill and the House passes a different budget-related bill and the Senate passes that bill. Sen. Leatherman insists he’s going to get a budget enacted before July 1, but I don’t see any way that can happen.
Sen. Leatherman called together his committee on Wednesday to pass a continuing resolution that will keep the government operating at current funding levels past July 1, in case the 2015-16 budget isn’t enacted by then. When Senate Republican Leader Harvey Peeler asked whether senators could add a provision to that resolution that would retain the governor’s control over the transportation secretary, Mr. Leatherman said there must be absolutely no amendments to the resolution, which the House passed the previous week. Any amendment would send the bill back to the House, and he and Senate Democratic Leader Nikki Setzler were adamant that this would be reckless, because the House would dillydally and cause a government shut-down on July 1.
Sen. Peeler implied that the governor would lose power only temporarily, until the regular budget took effect. That’s how people I talked to before the meeting thought it would work, and I believe it was on the basis of that understanding that the committee voted unanimously to approve the continuing resolution without adding the language to delay the sunset provision.
There’s just one problem with that understanding: It’s wrong.
‘You can’t undo it’
“The minute that sunset kicks in on a minute past midnight on June 30 with no suspension of it in place, it’s over,” Sen. Martin told me on Friday. “Once that sunset is triggered, you can’t undo it by suspending it.”
Sen. Martin isn’t a lawyer, but his committee has jurisdiction over pretty much any legislation that involves complex legal questions, and his staff researched this question before we talked. I felt pretty stupid for not already realizing this, because it’s so obvious once you think it through. But just to be certain, I checked in with one of the state’s top experts on this sort of legal questions, and he said without hesitation that Mr. Martin’s analysis sounded right.
So when senators return to work today, they will have two options: Do nothing, and let the unaccountable, horse-trading commission take back complete control of the agency, and retain it unless or until the Legislature can revoke it — next year at the earliest. Or add a single sentence to the continuing resolution that mirrors the one that both bodies voted to add to the regular state budget: “The provisions of Section 6 of Act 114 of 2007 are suspended for the current fiscal year.”
As to the concerns that this will open up the resolution to a free-for-all, with every legislator trying to add his pet provision, Sen. Martin points out that, as far as he can tell, this is the only provision of the budget bill that will become moot if the budget is not enacted before July 1. And at this point, the only way to stop that from happening is to add that language to the continuing resolution.
Be afraid; be very afraid
Senators, and then representatives, absolutely must vote to do that.
And there’s a simple way for them to stop their colleagues from bogging down the legislation with other matters: Vote against any attempts to do so.
This is not merely a theoretical problem, like the silly notion of the House wanting to shut down the government.
Last month I was told that a former member of the unaccountable, horse-trading Transportation Commission was lobbying for the job as secretary, and I nearly laughed out loud. There’s no way the governor would appoint him, I said — obviously not understanding as well as he did the possibilities.
Last week, as a legislative insider was explaining to me why it would be terribly risky and irresponsible to amend the continuing resolution, I noted that I was extremely worried about the Transportation Commission regaining the authority to hire a secretary. He responded before I could finish the sentence: “And you should be.”
Ms. Scoppe can be reached at email@example.com or at (803) 771-8571. Follow her on Twitter @CindiScoppe.