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Sequestration and the Failure of the Fourth Estate

Air traffic control tower at Chicago's Midway International Airport

SOURCE: AP/M. Spencer Green

This March 12, 2013, photo shows the air traffic control tower at Chicago's Midway International Airport.

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This column was originally posted on The Huffington Post.

In recent weeks, several highly regarded journalists have embarrassed themselves on the subject of sequestration. Brian Williams on the “NBC Nightly News” suggested that in implementing its budget cuts the White House may be “picking its targets, looking to make its point in a big showy way.” The network’s senior investigative correspondent, Lisa Myers, elaborated on Williams’s thesis, offering several examples of misplaced priorities in the choices being made by the White House in implementing the sequester. Myers observed, “The Federal Aviation Administration says it may need to furlough air traffic controllers and close towers, creating delays — yet it’s spending $20 million giving away money to tiny airports … that might get one private plane landing a week.”

CNN’s Candy Crowley made much the same point two weeks earlier in an interview with Transportation Secretary Ray LaHood. “As far as we can figure out, the FAA budget … is about $15 billion give or take. They’re going to have to cut $600 million, about 4 percent. Why is that enough to cause planes to be delayed for an hour and a half? There surely must be things inside the FAA budget where can you get rid of 4 percent.”

Both Myers and Crowley are correct in saying that it would be possible to cut the Federal Aviation Administration budget in a far less disruptive way than the sequestration plan outlined by the agency’s administrator, Michael Huerta, on February 22. Cutting grants to airports would in my judgment be an excellent place to start. It is true as Myers suggests that some of the funding goes to airports that have a very low volume of passengers. Further, these grants won’t even be awarded until later in the current fiscal years, and they will fund improvement projects that generally take a good while to start and a long time to complete. As a result, cutting them will have a fraction of the impact on the economy that laying off air traffic controllers will have. A less than 20 percent whack at this $3.5 billion pot of money would mean that nothing else in the FAA would have to be touched.

So why did the FAA administrator along with Transportation Secretary Ray LaHood and the White House make the decision to cut the controllers instead? Was it about grandstanding and budget hype? All I can say to the producers, editors, and reporters at these two networks and the numerous other journalists who have made similar mistakes in recent weeks is that it is time you read the legislation Congress passed more than 19 months ago.

The Budget Control Act, which raised the debt limit, averted national default, and in return required the president to issue a sequester order if the so-called super committee failed to reach agreement, also directed the president in how he was to prepare that sequester order. Those instructions are codified in Chapter 20 of Title 2 of the U.S. Code, which is entitled “Emergency Powers to Eliminate Budget Deficits.” Among the thousands of words of instructions that the president must comply with is Section 905, entitled “Exempt Programs and Activities.” This section goes through numerous categories of programs that will not be subject to sequestration excluding more than 150 from the process. The final subparagraph of this section essentially exempts the seven programs under the spending jurisdiction of the House Transportation and Infrastructure Committee and its Senate counterpart, the Committee on Environment and Public Works. These are the only discretionary programs that are controlled by committees other than the House and Senate appropriations committees and their masters had the clout to make them exempt. Among those seven programs are Federal Aid Highways and Ms. Myers’s Grants-In-Aid for Airports.

As a result the president can order no cut in airport grants and as a result must make somewhat larger cuts in all other nondefense discretionary programs.

Even if Congress had not exempted the airport grants from sequestration, the strategy for averting flight delays and averting tower closures suggested by both Myers and Crowley—take the bulk of the money out of lower priority programs—would not be permitted by the sequester legislation.

Granting the president the authority to unilaterally decide where and how to cut appropriated funds represents a major transfer of power from the legislative branch to the executive. It goes to the very heart of the issue of separation of powers and the system of checks and balances. Congress’s ability to control and define the resources made available to the executive is the foundation of that system.

Since the process of sequestration was started in 1985, all sequestrations as well as all legislation periodically attached to appropriation bills mandating across-the-board cuts has required that cuts be applied equally not simply across all programs but among each project within each program and each activity within each project.

The reason for this degree of specificity is the result of practical and immediate concerns by members of Congress as well as ones that are high minded and constitutional. Broad discretion in slashing billions of dollars from the federal budget would give any White House interested in the opportunity a once-in-a-lifetime chance to settle old scores with uncooperative members of Congress. Applying the same percentage cut to each activity, within each project and program, also protects earmarks and other activities on which the legislative and executive branches are in disagreement.

Several weeks ago, Dylan Mathews of The Washington Post posted a story on the paper’s blog (it is important to note that the editors did not see it having sufficient gravity to include in the print edition) that would have kept a lot of egg off the face of a lot of reporters if they had ventured to read it. Mathews delved into the definition of the term used in the original Gramm-Rudman-Hollings legislation to insure that the cuts were truly across the board, “program, project and activity.” He interviewed Barry Anderson, a retired civil servant who had a long career at the Office of Management and Budget and served as director of that organization’s Budget Review Division during the 1991 sequestration under President George H.W. Bush. Part of Anderson’s job was to be the government wide interpreter of “program, project and activity” so that agencies implemented the order in a consistent manner. Anderson told them to go as low as possible. He told Mathews:

Within the Commerce Department, there’s a program for nautical navigation, and then within that there’s a project to approve specific buoys, and then you finally get to the activity, which is this buoy. And Congress said you couldn’t remove them. I got a call from somebody at Commerce saying, “I have to go as low as I can go, and the lowest I can go is this buoy, so how do I cut 5 percent?” I asked, “Do you do anything with the buoys?” And they said, “Twice a year we send somebody to scrape off the bird poop.” So I said, “Scrape five percent less poop.”

Returning to the Myers example at the FAA, it should be noted that the agency budget contains four broad categories of programs. The biggest is Operations, which accounts for about two thirds of the agency budget. Others include Facilities and Equipment, Research, Engineering and Development, and finally Grants-in Aid for Airports—the area of the agency budget that is exempt from the sequestration.

But within the Operations grouping, there are seven separate program areas. These include Air Traffic Organization, which is what we normally think of as air traffic control, but also things like Aviation Safety, which examines and certifies airplanes and flight equipment. Another major program area within Operations is development of the Next Gen air traffic control system that will eventually convert much of management of air traffic from a system that is radar based to one that relies primarily on satellite-based positioning systems.

The Operations program area Air Traffic Organization, or ATO, accounts for about $7.5 billion or roughly half of the FAA’s total annual budget. There are 11 subprogram areas within ATO, three of which account for 80 percent of the total ATO budget. These are “En Route and Oceanic” flight control operations, $1.9 billion a year; terminal flight control operations, $2.2 billion; and technical operations, which pays for the purchase and maintenance of all of the radars, runway lights, display terminals, and other equipment necessary to operate the system and accounts for another $2 billion in spending.

Within each of these subprogram areas are dozens if not hundreds of projects and activities. How far down into the details of agency activities does the administration have to go in applying across-the-board cuts? It strikes me that Barry Anderson’s standard is extreme. But even if a much more flexible standard is applied, one might well conclude that the administration, based on the information that they have disclosed to date, has assumed much more flexibility in applying the cuts than the law actually allows. Has En Route and Oceanic flight control been cut by the same amount as terminal flight control? That is hard to determine based on the information provided thus far. But with another area of spending within the FAA, the answer is quite clear.

There are 264 airports in the United States in which the control tower is staffed by federally employed air traffic controllers. There are another 248 airports that have control towers, but those towers are staffed by the local airport authority with a majority of the cost of that staffing being paid by the FAA under a contract with the local authority. That arrangement is referred to in the FAA Budget Justifications submitted to Congress as the “Contract Towers” program, but it has been singled out for much deeper cuts than the rest of terminal flight control. The list of tower closures submitted by the FAA on February 22 include 195 or more than 75 percent of the contract towers, but only 43 or less than 20 percent of noncontract towers.

There is little question in my mind that what the FAA is doing is the right thing in terms of policy. Every dollar saved by closing these small towers reduces the chance that a larger tower with significant passenger and cargo traffic will need to be closed. In the analysis I did last summer of the FAA’s options in dealing with the sequester, I speculated that they might have to close as many as one hundred of the larger noncontract towers. That could affect airports handling as many as 600,000 passengers a year with a huge economic ripple effect. One reason that is not happening is that the FAA has decided that they have the authority to close a raft of little airports.

But the question that must be answered is whether the contract tower “program” is or is not a “program, project and activity”? That may well be for the courts to decide as one of the many untold horrors of the sequestration policy is the almost unlimited opportunity for litigation. Section 922 of the U.S. Code’s chapter on “Emergency Powers to Eliminate Budget Deficits” states that in addition to the normal rights of citizens and business to challenge the sequestration order, “any Member of Congress may bring an action, in the United States District Court for the District of Columbia, for declaratory and injunctive relief on the ground that the terms of an order issued under section 904 of this title do not comply with the requirements of this title” and further provides that such action, “shall be heard and determined by a three-judge court in accordance with section 2284 of title 28.”

Contrary to a drum beat of misinformation from far-right think tanks and Tea Party sympathizers, misinformation that all too often finds its way into the mainstream media, the mischief that this legislation can inflict is difficult to exaggerate. Program managers are forced to do remarkably stupid and destructive things that affect the services necessary to millions of ordinary citizens and numerous sectors of the economy such as airlines, tourism, meat and poultry production, energy exploration, pharmaceuticals, and many others.

Reporting that says that the blame for this hare-brained exercise is to be shared is probably not wrong. But among those who should be at the forefront of sharing that blame are the nation’s newspapers and broadcasters.

For years there has been speculation as to what the demise of our newspapers would mean to our democracy and the general wellbeing of our society. What happens when most of the nation’s veteran reporters are forced to take early retirement or simply get pink slips? What happens when the corporations that now control our broadcast networks demand such high margins on their news programing that only a fraction of the money they collect in advertising fees is reinvested in investigative reporting or solid journalism?

I don’t think anybody knows at this point how sequestration will finally turn out, but it may well provide us with the answer to those questions—an answer that none of us will enjoy.

Scott Lilly is a Senior Fellow at the Center for American Progress.

This column was originally posted on The Huffington Post.

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