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)

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.