Congress "Paves the Way" for Pay-to-Play Regulation of Federal Highway Administration Procurement Practices
My apologies for the headline, but sometimes one must succumb to the siren song of the obvious.
In one of its last acts before its Members left Washington to fight for their jobs, the House passed the “State Ethics Protection Act of 2010” to avoid a growing concern that Federal Highway Administration (FHWA) procurement rules were in direct conflict with the ever-growing roster of state-mandated pay-to-play laws. Lost in the noise of the shuffle out of town is the potential signal that Congress is getting closer to expanded pay-to-play regulation of its own.
Recently, government transportation officials recognized they had a problem. FHWA provides over $40 billion each year to states to offset the costs of various highway projects. As a condition of receiving those funds, state procurement rules must remain consistent with FHWA competitive bidding policies. Unfortunately (or fortunately, depending on your perspective), neither Congress nor FHWA have seen fit to impose procurement restrictions on contractors associated with individuals who contribute money to candidates or parties - which puts FHWA policy in direct conflict with the many states that do. Theoretically, this conflict would preclude pay-to-play states from entitlement to FHWA funds. According to the House Committee on Transportation and Infrastructure summary accompanying the proposed legislation, FHWA has gone so far as to threaten to withhold such funds in light of the conflict.
Not wanting to appear to disincentivize state pay-to-play reform, the House passed the State Ethics Protection Act of 2010 by a simple voice vote - a House procedure reserved for bills considered to be “noncontroversial”. In its entirety, the bill provides:
‘‘(h) PAY TO PLAY REFORM.—A State transportation department shall not be considered to have violated a requirement of this section solely because the State in which that State transportation department is located, or a local government within that State, has in effect a law or an order that limits the amount of money an individual or entity that is doing business with a State or local agency with respect to a Federal-aid highway project may contribute to a political party, campaign, or elected official.’’
The lack of fanfare and procedural efficiency attached to this legislation belies its potential significance. With this legislation, Congress has moved a large step towards imposition of federal pay-to-play legislation in the government procurement arena.
