Update: Super-Waiver is the Wrong Tool for the Job

by Guest Blogger, 4/29/2002

Federal Budget Policy, Appropriations, Congressional Budget Resolution, Inequality and Poverty, Revenue & Spending, Government Matters, House Ways and Means Committee

Since being introduced as part of the TANF reauthorization bills earlier this month, the President’s "super-waiver" provision has undergone several significant revisions. The original provisions included in Rep. Wally Herger's (R-CA) H.R. 4090, and Rep. Buck McKeon's (R-CA) H.R. 4092, TANF bills allowed for governors to request a waiver of any statute or rule applied to any program in the Departments of Labor, HHS, and Education. All that would be required of the governor was a proposal showing how the waiver was neutral in cost. The Secretary of the petitioned department would have 90 days to sign off on the proposal, and if the state received no response within 90 days, the proposal could be deemed approved.

During the subcommittee-level debate, the scope of these bills was somewhat narrowed and the versions of the bills passed last week provided for fewer eligible programs and included a collection of vaguely-worded restrictions on the type of federal laws eligible for waiver. The subcommittee-passed bills look like this:

Super-Waiver Provisions Passed in House Subcommittees

TANF Reauthorization Bill and Sponsor	House Subcommittee	Eligible Programs
H.R. 4090, Rep. Wally Herger (R-CA)	Ways and Means	Unemployment Insurance TANF Child Support Social Services Block Grant (SSBG)
H.R. 4092, Rep. Buck McKeon (R-CA)	Education and the Workforce Subcommittee on 21^st Century Competitiveness	Child Care and Development Block Grant (CCDBG) Wagner-Peyser (Employment Services public employment offices, a part of the "One-Stop" workforce development services delivery system) Job Opportunities for Low-Income Individuals (JOLI) Adult-Education and Family Literacy Act

The two bills have identical language regarding restrictions on the waivers. The bills prohibit the waiving of Section 241(a) of the Adult Education and Family Literacy Act and "any provision of law relating to civil rights; purposes of goals of any program; maintenance of effort requirements; health or safety; labor standards under the Fair Labor Standards Act of 1938; or environmental protection."

Though the number of programs eligible for these super-waivers has been reduced and the above list of restrictions added, OMB Watch remains concerned about this provision. Our primary concerns include: (For a full list, see the April 15 Watcher article.)

Transfer of funds: Super-waivers may expose the communities these federal programs are intended to serve to cuts in already-tight funding, with no input and limited oversight by Congress. These waivers could allow a state to redirect funding that was appropriated for low-income job training, for example, to road repair.

Waiving of federal eligibility standards: Though many of these eligible programs are established as block grants with few federal definitions and restrictions, those federal standards that do exist work to ensure that a certain baseline is met by service providers to all participants, regardless of the state program they are enrolled in.

Manipulation of Program Goals: In addition to limiting funding and eligibility, super-waivers may also allow for a change in program focus to accomplish limited ideologically-motivated agendas on the state level, that would never secure sufficient Congressional support on the national level.

Vague Restrictions: Though both versions of the super-waiver legislation enumerate a variety of categories of federal regulations not eligible for waivers, the list refers to only two specific statutes, and thus leaves open to debate just which federal laws would be included. For example, the legislation mentions that federal laws relating to “civil rights” are not eligible for waivers. Without enumerating the specific federal civil rights statutes, however, it is not possible to be certain whether the Americans with Disabilities Act, for example, would also be protected from state waivers.

On top of these concerns comes the possibility that additional programs and/or entire departments may be added as these two bills are consolidated, with little time for the full debate and investigation that a development of such-far reaching powers warrants.

OMB Watch does not object to state flexibility and believes that states should have the ability to mold a federal program to meet state-specific needs and conditions, but this "super-waiver" is the wrong tool for this job. If states require more flexibility for a specific program, the changes should be made in the authorizing legislation of that program. Overly-broad language that creates more uncertainty and vulnerability is the wrong approach.

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