The Congressional reauthorization of the Ryan White CARE Act, distributing $2 billion in funding for health care services for people with HIV/AIDS, has slowed to a stop—at least for a while. The bill is not caught up in debates about informed consent and HIV testing. It’s not stuck on arguments about medical standards of care or about discrimination against people with AIDS or about the appropriateness of being candid with young people about the risks of sex and drugs.
Nope. The Ryan White legislation is tangled in what is widely (and unaffectionately) known in the Congress as “a formula fight.”
Formula fights are debates about how to allocate funds around the country. Should big States get big allocations? Should little States get at least a minimum amount? Often this debate is about a fixed amount of money, so all formula changes are zero-sum games: If one allocation goes up, another must come down. That makes the politics especially harsh.
Consider the current Ryan White debate: One Congressman said, “This bill is designed to have clear winners and losers in funding, and there should be none.”[i] His position was contrary to another Congressman, who said, “It shouldn’t matter where you live in the country when it comes to accessing medical care and therapy.” A Senator who supports the formula in the bill argued, “It is time for Ryan White funds to be distributed more evenly.”[ii]
Formula fights are hardly unique to the Ryan White bill. There are allotments, allocations, and schedules for distributing funds among the States (and sometimes among local governments, too) throughout the U.S. Code, including health care, student aid, transportation, and homeland security. One analysis has put the amount of such formula grants at $400 billion a year and has identified a range of seventeen formula factors and twelve formula program components that may be used in them. [iii]
Some of these formulas are relatively straightforward. For instance, funds are to be distributed on the basis of population.[iv]
But some of them are an “amalgamation of a bad story problem from high school algebra and … forensic calculus.”[v] For example:
Determination Under Formula—Subject to subsection (b), the Secretary shall determine the amount of the allotment … for a State … in accordance with the following formula: A(X/U)…. For purposes of paragraph (1), the term ‘U’ means the sum of the respective terms ‘X’ determined for the States….. [T]he term ‘X’ means the product of an amount equal to the product of the term ‘P,’ as determined for the State involved under paragraph (5) and the factor determined under paragraph (8) [Determination of Certain Factor]… and the greater of 0.4 and an amount equal to an amount determined of the State in accordance with the following formula: 1-.35 (R% / P%).[vi]
There are myriad significant public policy issues buried in these formulas. Should the Congress give more money to States with lower average incomes (thus helping poor States)? Should the Congress give more money to States that put their own money into policy efforts (thus rewarding them for doing good things) or should it give more money to States that don’t (thus helping residents with unmet needs and, incidentally, rewarding the States that don’t use their own money)? Should the Congress recognize that some problems (e.g., pollution, drugs) tend to be worse in States with large urban areas? Should States that have been getting a stream of Federal funds continue to get a reliable portion of it, even as circumstances change?
And so on…. Consequently there is no universal answer to formula fights in the Congress.
Formula fights may seem arcane, and they often are in their specifics. But their occurrence is not an accident. They are intrinsic to the structure of the Congress itself.
In fact, a dispute over a formula was a fundamental part of the creation of the Constitution during the Philadelphia Convention of 1787. In throwing out the Articles of Confederation and drafting a constitution, the Framers hotly debated the type of representation in the new legislative branch. It was the “most bitter controversy of the Convention.”[vii]
· There was the Virginia Plan, i.e., the legislature should be proportionally divided, with big States having more seats. One representative declared, “equal numbers of people ought to have an equal no. of representatives.”[viii] Without power being proportional to numbers, Madison warned, “we make a paper confederacy, but that will be all.”[ix]
· There was the New Jersey plan, i.e., the legislature should be evenly divided, with each State having the same number of seats. “Otherwise”, it was said, “the smaller States must have been destroyed instead of being saved.”[x] A representative from one of the smaller States explained that anything other than uniform representation would be “a system of slavery for 10 States” since the three largest States (Virginia, Massachusetts, and Pennsylvania) could effectively control the body.[xi]
· And eventually there was the Connecticut Compromise (or the Great Compromise), i.e., Senators should be allocated two to a State, while Members of the House of Representatives should be “apportioned among the several States… according to their respective Numbers [of people].”[xii]
That carried the day, and “[o]n July 16, the convention adopted the Great Compromise by a heart-stopping margin of one vote.”[xiii] “[W]ithout that vote, there would likely have been no Constitution.”[xiv]
With that vote, however, were sowed the seeds for near-endless debates and discussions about how Federal money should be distributed. The Framers punted, and that is the genius and bedevilment of Congressional representation. It’s neither about equality nor proportionality. It’s about both.
Thus Wyoming has two Senators and one Member of the House. And California also has two Senators and 53 (or almost one out of eight) Members of the House.
And consequently, unless Federal assistance is uniquely needed in just one or a few States,[xv] the Congress is likely to spend a great deal of its time fighting over the “fair” formula. The structure pre-ordains it.
But at least the Ryan White legislators and staff can take comfort in one thing: The cube root in the original statutory formula was repealed ten years ago.[xvi]
[iv] Cf. The Social Services Block Grant, 42 USC 1397b.
[v] Testimony of Tim Westmoreland, Senate Finance Committee, “Hearings on the Use of Medicaid Funds,” September 6, 2000.
[vi] “Block Grants to States for Mental Health Services,” (42 USC 300x-7).
[vii] Weberry v. Sanders, 376 US 1 (1964).
[xv] E.g., Hurricane Katrina assistance, although note even there that funds to reimburse “host States” for caring for refugees has been widespread.
[xvi] Public Law 104-146 (1996), amending 42 U.S.C. 300ff-28.