To remove privatized highways from consideration in apportioning highway funding among States.

MOVING AHEAD FOR PROGRESS IN THE 21ST CENTURY ACT

The ACTING PRESIDENT pro tempore. Under the previous order, the
Senate will resume consideration of S. 1813, which the clerk will
report.

[[Page S1593]]

The bill clerk read as follows:

A bill (S. 1813) to reauthorize Federal-aid highway and
highway safety construction programs, and for other purposes.

Pending:

Roberts modified amendment No. 1826, of a perfecting
nature.
McCain modified amendment No. 1669, to enhance the natural
quiet and safety of airspace of the Grand Canyon National
Park.
Corker amendment No. 1785, to lower the fiscal year 2013
discretionary budget authority cap as set in the Balanced
Budget and Emergency Deficit Control Act of 1985 by
$20,000,000,000 in order to offset the general fund transfers
to the highway trust fund.
Corker amendment No. 1810, to ensure that the aggregate
amount made available for transportation projects for a
fiscal year does not exceed the estimated amount available
for those projects in the highway trust fund for the fiscal
year.
Portman/Coburn amendment No. 1736, to free States to spend
gas taxes on their transportation priorities.
Portman amendment No. 1742, to allow States to permit
nonhighway uses in rest areas along any highway.
Coats (for Alexander) amendment No. 1779, to make technical
corrections to certain provisions relating to overflights of
National Parks.
Coats (for DeMint) amendment No. 1589, to amend the
Internal Revenue Code of 1986 to terminate certain energy tax
subsidies and lower the corporate income tax rate.
Coats (for DeMint) amendment No. 1756, to return to the
individual States maximum discretionary authority and fiscal
responsibility for all elements of the national surface
transportation systems that are not within the direct purview
of the Federal Government.
Coats/Lugar amendment No. 1517, to modify the apportionment
formula to ensure that the percentage of apportioned funds
received by a State is the same as the percentage of total
gas taxes paid by the State.
Blunt/Casey amendment No. 1540, to modify the section
relating to off-system bridges.

Mrs. BOXER. Mr. President, I know Senator Bingaman is here, so I will
ask a quick unanimous consent that the time until noon be equally
divided between the two leaders or their designees, that there be 2
minutes equally divided prior to each vote, and all votes after the
first vote following the recess be 10-minute votes.
The ACTING PRESIDENT pro tempore. Without objection, it is so
ordered.
Mrs. BOXER. I yield the floor.

Amendment 1759

Mr. BINGAMAN. Mr. President, I believe the second amendment that we
will be voting on here right after lunch or right after noon is the
amendment that Senator Durbin and I are proposing related to privatized
toll roads. When a State privatizes an existing toll road, it shifts to
a private company all responsibility for operations and maintenance in
exchange for a cash payment, essentially. Under existing law,
privatized toll roads are still included in the calculation of how much
each State receives in Federal highway funds.
In my view, it does not make good sense for a State to be credited
with Federal highway funding needed to maintain that road once it has
been shifted out of the public sphere to a private entity and the
private entity has taken on the legal responsibility to operate and
maintain the road. The amendment would simply remove these privatized
toll roads from consideration when we allocate highway funds.
The amendment is very narrow. It applies only when a State sells off
an existing toll road. It does not apply at all to any new
construction. When I say it sells off an existing toll road, I mean
that it enters into a lease--in most cases a lease of 75 years or
more--with a private entity to operate a toll road and collect the
tolls and maintain the road.
The amendment has the support of the American Automobile Association
and the American Trucking Association. I think it is good legislation.
It also has the support of the Owner-Operators Independent Drivers
Association and American Highway Users Alliance. This is a modest
change in the law governing the allocation of Federal funds for
highways, but I think it is a commonsense proposal that should be
supported by the Members of the Senate.
I hope very much we can adopt this amendment when it comes to a vote.
As I say, it is not the first amendment that we are going to consider
for this bill; it is the second of the two votes prior to the recess
for the weekly caucuses.
Mr. President, I ask unanimous consent to call up the amendment I
have just been speaking about, amendment No. 1759, and ask that the
clerk report the amendment by number.
The ACTING PRESIDENT pro tempore. Without objection, it is so
ordered.
The clerk will report.
The bill clerk read as follows:

The Senator from New Mexico [Mr. Bingaman] proposes an
amendment numbered 1759.

Mr. BINGAMAN. Mr. President, I ask unanimous consent that further
reading of the amendment be dispensed with.
The ACTING PRESIDENT pro tempore. Without objection, it is so
ordered.
The amendment is as follows:

(Purpose: To remove privatized highways from consideration in
apportioning highway funding among States)

On page 51, between lines 16 and 17, insert the following:
``(C) Further adjustment for privatized highways.--
``(i) Definition of privatized highway.--In this
subparagraph:

``(I) In general.--The term `privatized highway' means a
highway that was formerly a publically operated toll road
that is subject to an agreement giving a private entity--

``(aa) control over the operation of the highway; and
``(bb) ownership over the toll revenues collected from the
operation of the highway.

``(II) Exclusion.--The term `privatized highway' does not
include any highway or toll road that was originally--

``(aa) financed and constructed using private funds; and
``(bb) operated by a private entity.
``(ii) Adjustment.--After making the adjustments to the
apportionment of a State under subparagraphs (A) and (B), the
Secretary shall further adjust the amount to be apportioned
to the State by reducing the apportionment by an amount equal
to the product obtained by multiplying--

``(I) the amount to be apportioned to the State, as so
adjusted under those subparagraphs; and
``(II) the percentage described in clause (iii).

``(iii) Percentage.--The percentage referred to in clause
(ii) is the percentage equal to the sum obtained by adding--

``(I) the product obtained by multiplying--

``(aa) \1/2\; and
``(bb) the proportion that--
``(AA) the total number of lane miles on privatized highway
lanes on National Highway System routes in a State; bears to
``(BB) the total number of all lane miles on National
Highway System routes in the State; and

``(II) the product obtained by multiplying--

``(aa) \1/2\; and
``(bb) the proportion that--
``(AA) the total number of vehicle miles traveled on
privatized highway lanes on National Highway System routes in
the State; bears to
``(BB) the total number of vehicle miles traveled on all
lanes on National Highway System routes in the State.
``(iv) Reapportionment.--An amount withheld from
apportionment to a State under clause (ii) shall be
reapportioned among all other States based on the proportions
calculated under subparagraph (A).

Mr. DURBIN. The Senate will vote today on the Bingaman-Durbin
amendment to the Transportation bill. This amendment will help protect
taxpayers when local governments sell or lease public roads and
bridges.
The Federal Government provides States and local governments billions
of dollars to build, maintain, and improve transportation projects
across the country. Federal funding has helped build and maintain roads
when local and State governments couldn't afford construction or upkeep
on their own. Federal taxpayers have picked up the tab for millions of
transportation projects across the country.
The Senate Transportation bill provides States with an average of $40
billion per year to help them upgrade their roads and bridges. These
Federal investments have created thousands of jobs and helped our
economy. But the temptation to cash in on these projects is great,
particularly as States and cities are looking under every rock to find
new sources of revenue. Some local governments and States are
interested in selling or leasing their highways.
Private hedge funds, banks and investment groups offer States and
local governments large, lump sum payments in exchange for the complete
control of critical transportation assets. Local governments receive
massive, upfront payments to help them fund other local priorities. The
private financiers get complete control of a highway for decades--
sometimes for as long as 99 years. Sometimes those private entities are
able to provide responsible upkeep of the asset over the

[[Page S1594]]

long run. But too often, the services are reduced, prices go up, and
maintenance isn't all it should be. The Federal taxpayer is left
holding the bag.
Privatization deals like this set up a turn-key operation where the
Federal taxpayer pays for critical infrastructure improvements, only to
have local governments turn around and sell or lease this
infrastructure for a one-time payment they keep themselves. All levels
of governments are facing serious budget shortfalls. The Federal
Government shouldn't incentivize local and State governments to make
rash, short-term decisions that lease transportation projects for
generations just to solve temporary budget shortfalls.
The Bingaman-Durbin amendment will ensure taxpayers are not paying
States twice for highways that are sold or leased to private operators.
Highway funding has historically been distributed through complex
formulas that include the number of lane miles of major roads in each
State and the amount of traffic on those roads.
The FHWA formulas are meant to help States pay for the maintenance
and upkeep of those roads. However, when States sell or lease their
highways, they are paid massive lump sums in exchange for transferring
responsibility for maintenance to the private operators. But the road
miles and traffic counts on the privatized highway still contribute to
each State's formula funding.
The current highway formulas do not take into account how many roads
are privatized in each State so the Federal Government continues to pay
States for maintaining roads they have handed off to private operators.
It doesn't make sense for States to be credited with and given Federal
highway funding for privatized toll roads, which it no longer operates
or maintains. The private operators of leased roads also get a generous
tax benefit from depreciating the road as an asset.
The CBO has found this depreciation reduces Federal revenues and has
a negative impact on our deficit. These deals set up a double whammy
for the taxpayer--the private operator gets generous tax benefits and
the State continues to receive Federal funding for roads they no longer
maintain. Taxpayers are literally paying for privatized roads twice by
subsidizing tax breaks for private operators who buy public roads and
continuing to pay the States for upkeep on roads they are no longer
responsible for.
The Bingaman-Durbin amendment will end this practice by removing
factors associated with privatized roads from the formulas used to
calculate a State's annual highway funding amount. Three States,
including Illinois, have privatized some of their highways in exchange
for a lump sum payment. In 2006, the city of Chicago leased the 7.8
mile Chicago Skyway for 99 years in exchange for a lump sum payment of
$1.8 billion.
The private operator has since raised the tolls on the Skyway and has
taken over sole responsibility for maintenance of the roadway. However,
those 7.8 miles are still included in the formula calculations that add
to a State's share of Federal highway funds. Illinois continues to
receive roughly $1.2 million each year because the Chicago Skyway is
still included in the Federal highway formulas. Motorists are also
paying more to use the road. Under public control, the tolls for the
skyway decreased by about 25 percent when adjusted for inflation
between 1989 and 2004. But Chicago Skyway tolls have risen 60 percent
since the road was privatized in 2005.
The Bingaman-Durbin amendment will stop paying States to maintain
roads they have been paid to no longer maintain. The amendment will
take those funds and distribute them to other States to help pay for
the maintenance of public roads and bridges across the country.
In 2006, I requested a GAO study of highway public-private
partnerships along with Senator Inhofe and Representative Peter
DeFazio. The GAO study found ``there is no `free' money in public-
private partnerships, and it is likely that tolls on a privately
operated highway will increase to a greater extent than they would on a
publicly operated toll road.'' The GAO called for Congress to require
more upfront analysis of these privatization deals to ensure they
protect the public interest.
I introduced legislation earlier this year that would provide for a
rigorous examination of privatization deals of all transportation
assets--highways, airports, bridges and mass transit systems. The
Protecting Taxpayers in Transportation Asset Transfers Act would ensure
the Federal taxpayer has a seat at the table when State and local
governments sell publicly owned transportation assets.
This amendment does not go far enough to protect the public interest
in transportation privatization deals, but it does take away an
unnecessary incentive for States and local governments to sell publicly
funded roads and highways. This amendment will not stop States from
privatizing roads, but it will stop the Federal taxpayer from paying
twice for privatized roads.
The amendment is supported by AAA, the American Trucking Association,
the American Highway Users Alliance, the American Federation of State,
County and Municipal Employees, UPS, and the U.S. Public Interest
Research Group. CBO has indicated the amendment does not score and will
not increase the deficit in anyway.
Mr. BINGAMAN. Mr. President, I suggest the absence of a quorum.
The ACTING PRESIDENT pro tempore. The clerk will call the roll.
The bill clerk proceeded to call the roll.
The ACTING PRESIDENT pro tempore. The Senator from South Carolina.
Mr. DeMINT. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The ACTING PRESIDENT pro tempore. Without objection, it is so
ordered.

Amendment 1756

Mr. DeMINT. Mr. President, thank you for the opportunity to talk
about the amendment that we call the Transportation Empowerment Act.
This is actually legislation that has been worked on for over 10 years.
Our ranking member, Senator Inhofe, helped to develop this legislation,
and it is essentially the same as when he introduced it 10 years ago.
He pointed out that he had long believed that the best decisions are
those made at the local level. Unfortunately, many of the
transportation choices made by cities and States are governed by
Federal rules and regulations.
This bill returns to the States the responsibility and resources to
make their own transportation decisions--those were Senator Inhofe's
words. I think we all know, as a Nation, that we are not going to solve
our spending and debt problems unless we are willing to begin to move
some public services from Washington back to the States where they can
be done more effectively and less expensively, and one of those public
services is transportation.
I would point out that the Transportation Department at the Federal
level was formed almost 60 years ago to build our Interstate Highway
System and this system is essentially complete. The States maintain
most of the interstate highways now with some Federal support. The
problem we have now is that 18 cents out of every gallon of gasoline
comes to Washington and a majority of States get back less than they
send.
We have what I think could be called an infrastructure crisis in
America. Roads and bridges are decaying everywhere and we are behind on
our maintenance in the building of new roads, so it is obvious that
what we are doing is not working. Instead of solving the problems with
real reforms, the underlying bill is adding to what we are spending
above the trust fund--above the 18 cents--without any real reforms to
make the system work better. So I think I can conclude that the current
Federal transportation finance system is broken.
Since 2007, rather than evaluate true infrastructure priorities and
attempt to live within our means by eliminating special interest
programs, Congress has bailed out the highway trust fund to the tune of
$35 billion. With the pending reauthorization, the trust fund will
require a bailout of another $13 billion.
At the end of this big-spending 2-year reauthorization, Congress will
be back at the drawing board scrambling for additional budgetary
gimmicks and offsets to keep this charade from imploding. If this were
a traditional 6-

[[Page S1595]]

year highway bill, at this rate of runaway spending it would require a
bailout of $39 billion from the general fund.
There is a better way. It is time to get the Washington bureaucracy
and costly regulations out of the way and empower States to be the
primary decisionmakers for their own local and State infrastructure. My
amendment allows for States to keep their gas taxes and set their own
priorities while avoiding an additional layer of Washington
bureaucracy.
We should devolve the Federal highway program from Washington to the
States. We can dramatically cut the Federal gas tax to a few pennies,
which would be enough to fund the limited number of highway programs
that serve a clear national purpose. In turn, States could adjust their
own gas taxes to make their own construction and repair decisions
without costly rules such as Davis-Bacon regulations and without having
to funnel the money through Washington's wasteful bureaucracy and some
self-serving politicians.
My amendment would free States from the wasteful and corrupt Davis-
Bacon Act, which needlessly focuses or forces the government to pay
labor union wages for construction projects. Davis-Bacon harms workers
who choose not to join unions, and it raised the costs to taxpayers
last year by nearly $11 billion.
Our Nation's fiscal situation is perilous, with a $15 trillion debt
set to double to $30 trillion in the next decade. Bipartisan
compromises on spending like this bill got us into this mess and we
will never get out of it if we don't embrace bold commonsense reforms.
I urge my colleagues to support my amendment and empower the States
by giving them the flexibility they need to maintain their
infrastructures.
If I could take a second to summarize, I know some Members have
stepped into this legislation that has been under development for many
years. It is one that has been talked about by the States, with over
half of our States what we consider donor States. If we were able to
not only remove the Federal bureaucracy but also the regulations that
force States to spend money in ways they don't like, the overwhelming
majority of States would have a lot more money to spend on roads and
bridges than they do now.
We are not talking about cutting spending on transportation. What we
are talking about is actually increasing it by moving this service back
to the States where it can be guided with a lot more on-the-ground
knowledge of what needs to be done, without all of the political
maneuvering in Washington to send money to one State versus another.
This is a way to maintain our Federal priority with a small part of the
gas tax and allow the States to basically keep the rest of the gas tax
to serve their own needs.
If we cannot do this, I don't see any way that we are going to be
able to deal with our national debt. If we can recognize there is an
obvious service here that can be done better and less expensively and
quicker at the State and local level and we can move that bureaucracy
out of Washington, we can make the highway trust fund solvent.
If we can't do something that makes this much common sense and saves
the taxpayers money and actually delivers a better service, it is
difficult for me to understand how we are ever going to deal with the
huge debt and spending problem we have now in Washington.
I reserve the remainder of my time.
The ACTING PRESIDENT pro tempore. The Senator's time has expired.
The Senator from California.
Mrs. BOXER. Mr. President, I have a parliamentary inquiry: Did
Senator DeMint use his 1 minute he had before the vote?
The ACTING PRESIDENT pro tempore. That is correct.
Mrs. BOXER. I ask to have an additional 15 seconds, since he went
over by that much.
The ACTING PRESIDENT pro tempore. Under the previous order, there
will be 1 minute of debate in opposition prior to a vote in relation to
amendment No. 1756 offered by the Senator from South Carolina.
Mrs. BOXER. I am asking for that. Fine.
I think this is so critical. The DeMint amendment is the end of the
Federal highway and transportation system. It is a system that has been
in place since Republican President Dwight Eisenhower told us how
critical it was. He said in the 1950s: The Transportation bill's impact
on the American economy--the jobs it would produce in manufacturing,
construction, the rural areas it would open--are beyond calculation.
Ronald Reagan said: It has enabled our commerce to thrive, our
country to grow, and our people to roam freely.
Senator DeMint is taking on two icons in the Republican Party,
President Eisenhower and President Reagan.
Today, the National Association of Manufacturers said they oppose
this amendment. They oppose it. It would reduce future revenues, they
said.
The U.S. Chamber of Commerce said they are against it, and without
this Transportation bill there is no guarantee that States would
prioritize transportation investments that support national interests.
The American Road and Transportation Builders Association said they
are against this amendment, and it would force your State to raise its
own taxes or force cuts elsewhere to offset massive cuts in Federal
highway and transit investments.
I respect my friend, but this is a disaster if it were to pass. I
urge a ``no'' vote.
The ACTING PRESIDENT pro tempore. The question is on agreeing to
amendment No. 1756.
Mrs. BOXER. I ask for the yeas and nays.
The ACTING PRESIDENT pro tempore. Is there a sufficient second? There
appears to be a sufficient second.
The clerk will call the roll.
The bill clerk called the roll.
Mr. DURBIN. I announce that the Senator from New Jersey (Mr.
Lautenberg) is necessarily absent.
Mr. KYL. The following Senators are necessarily absent: the Senator
from Illinois (Mr. Kirk) and the Senator from Utah (Mr. Hatch).
Further, if present and voting, the Senator from Utah (Mr. Hatch)
would have voted ``yea.''
The ACTING PRESIDENT pro tempore. Are there any other Senators in the
Chamber desiring to vote?
The result was announced--yeas 30, nays 67, as follows:

[Rollcall Vote No. 36 Leg.]

YEAS--30

Ayotte
Boozman
Burr
Chambliss
Coats
Coburn
Corker
Cornyn
Crapo
DeMint
Graham
Grassley
Hutchison
Inhofe
Isakson
Johnson (WI)
Kyl
Lee
Lugar
McCain
Moran
Paul
Portman
Risch
Roberts
Rubio
Sessions
Toomey
Vitter
Wicker

NAYS--67

Akaka
Alexander
Barrasso
Baucus
Begich
Bennet
Bingaman
Blumenthal
Blunt
Boxer
Brown (MA)
Brown (OH)
Cantwell
Cardin
Carper
Casey
Cochran
Collins
Conrad
Coons
Durbin
Enzi
Feinstein
Franken
Gillibrand
Hagan
Harkin
Heller
Hoeven
Inouye
Johanns
Johnson (SD)
Kerry
Klobuchar
Kohl
Landrieu
Leahy
Levin
Lieberman
Manchin
McCaskill
McConnell
Menendez
Merkley
Mikulski
Murkowski
Murray
Nelson (NE)
Nelson (FL)
Pryor
Reed
Reid
Rockefeller
Sanders
Schumer
Shaheen
Shelby
Snowe
Stabenow
Tester
Thune
Udall (CO)
Udall (NM)
Warner
Webb
Whitehouse
Wyden

NOT VOTING--3

Hatch
Kirk
Lautenberg
The amendment (No. 1756) was rejected.

Amendment No. 1759

The ACTING PRESIDENT pro tempore. Under the previous order, there
will now be 2 minutes of debate equally divided prior to a vote in
relation to amendment No. 1759 offered by the Senator from New Mexico,
Mr. Bingaman.
The Senator from New Mexico.
Mr. BINGAMAN. When any of our States privatize an existing toll road,
it, of course, shifts the responsibility to operate and maintain that
toll road to a private entity and gets a cash payment in return.
Under existing law, these privatized toll roads continue to be
included in the calculation for receipt of Federal highway funds. I do
not think that makes any sense. This is a commonsense amendment to
correct that. This amendment simply ensures that privatized toll roads
are removed from consideration when we allocate Federal highway funds.

[[Page S1596]]

As I say, I think it makes a lot of sense and should apply equally to
all States. I urge support for the Bingaman-Durbin amendment.
The ACTING PRESIDENT pro tempore. Who yields time in opposition?
The Senator from Oklahoma.
Mr. COBURN. Mr. President, what this amendment does is it ultimately
eliminates a State's right to leverage its assets over an amortization
schedule that would allow it to expand its highway system. What we are
doing is we are taking money we have taken from the States, sending it
up here, and saying: If you have an asset in your State--unless you are
building a brandnew road--you cannot use that asset to leverage your
capital to build more roads in your State. It is against the 10th
amendment. It is morally wrong to take away a State's right to enhance
its capital assets.
I urge a ``no'' vote.
The ACTING PRESIDENT pro tempore. The question is on agreeing to
amendment No. 1759.
Mr. COBURN. Mr. President, I ask for the yeas and nays.
The ACTING PRESIDENT pro tempore. Is there a sufficient second?
There appears to be a sufficient second.
The clerk will call the roll.
The legislative clerk called the roll.
Mr. DURBIN. I announce that the Senator from New Jersey (Mr.
Lautenberg) is necessarily absent.
Mr. KYL. The following Senators are necessarily absent: the Senator
from Utah (Mr. Hatch) and the Senator from Illinois (Mr. Kirk).
Further, if present and voting, the Senator from Utah (Mr. Hatch)
would have voted ``nay.''
The ACTING PRESIDENT pro tempore. Are there any other Senators in the
Chamber desiring to vote?
The result was announced--yeas 50, nays 47, as follows:

[Rollcall Vote No. 37 Leg.]

YEAS--50

Akaka
Begich
Bennet
Bingaman
Blumenthal
Brown (OH)
Cantwell
Cardin
Casey
Cochran
Conrad
Durbin
Franken
Gillibrand
Grassley
Hagan
Harkin
Heller
Hoeven
Hutchison
Inouye
Johnson (SD)
Klobuchar
Kohl
Landrieu
Leahy
Levin
Lieberman
Manchin
McCaskill
Menendez
Merkley
Mikulski
Murkowski
Murray
Nelson (NE)
Nelson (FL)
Pryor
Reed
Reid
Rockefeller
Sanders
Schumer
Shaheen
Stabenow
Tester
Udall (CO)
Udall (NM)
Whitehouse
Wyden

NAYS--47

Alexander
Ayotte
Barrasso
Baucus
Blunt
Boozman
Boxer
Brown (MA)
Burr
Carper
Chambliss
Coats
Coburn
Collins
Coons
Corker
Cornyn
Crapo
DeMint
Enzi
Feinstein
Graham
Inhofe
Isakson
Johanns
Johnson (WI)
Kerry
Kyl
Lee
Lugar
McCain
McConnell
Moran
Paul
Portman
Risch
Roberts
Rubio
Sessions
Shelby
Snowe
Thune
Toomey
Vitter
Warner
Webb
Wicker

NOT VOTING--3

Hatch
Kirk
Lautenberg
The amendment (No. 1759) was agreed to.

____________________