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]
[i] Kaiser Family Foundation, Daily HIV Report, “Politics and Policy: House Panel Approves Reauthorization of Ryan
White Care Act,” September 21, 2006.
[ii] Id.
[iii] Public Policy Institute of California, “Federal
Formula Grants and California,” (2004).
[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).
[viii] The Records of
the Federal Convention of 1787 (Farrand ed. 1911) [hereafter “Farrand”],
p.179.
[xiii] Richard A. Baker, Historical
Minutes, “Formative Years of the U.S. Senate (1787-1800).”
[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.
Is this the first in a series?
I have read and enjoyed GLFB almost since its inception, but I am having a hard time making heads or tails of this post.
The fundamental question on the reauthorization of the Ryan White Act is whether the formula should be changed to reflect demographic trends, that is, by sending more money to states mostly in the South where growth is fastest at the expense of traditional recipients, or remain the same, concentrating allocations where per-capita rates are highest.
Now this maps on to the bicameral divide Westmoreland highlights, which is to be expected.
Is he saying that the question of whether the utility of highly regionally inconsistent maximally efficient funding is greater than that of regionally consistent submaximally efficient funding is properly avoidable under a different situation? I don't have the relevant expertise, nor access to those with it, to answer the question, but is Westmoreland suggesting that the Framers would have been better to obviate the debate of such a question?
His use of the term "punted" is unfortunate and obfuscatory. Surely the decision to require a structural balancing test between populationally- and geographically-dominant ideals was not a punt, but rather a requirement that the law of land be both at least not harmful to all the land, and supported by a majority of voters in the land.
The focus on the formulation of the Great Compromise is distracting from the central issue of system-level behavior. Any argument as to the reasonings of the Framers in the construction of the Constitution is an exercise in an intentionalist fallacy. That the framers desired action x to have result y, even if that was their sole desire, fails to rule out that the primary result, as applied, of action x is something else entirely.
The problem isn't that the Framers were going for the wrong thing with the Great Compromise, but rather that they failed to anticipate partisan partitioning of power within their legislative framework. For almost all its history, if not all, the Senate has performed precisely the role implicitly contemplated by the Constitution: structurally requiring that all legislative articles proposed at the very least do not harm underrepresented demographics (States are strawmen in this argument. Underrepresented demographics in proportional government are by their nature statistically most likely to appear both .a. specific to a region, and .b. in regions with the lowest density of representation). Prior to the passage of the 13th, 14th, 15th, 19th, 24th, and 26th Amendments, as well as the Civil and Voter's Rights Acts certain demographics remained nonetheless underrepresented, but that is a problem that has been bracketed by the passage of those provisions.
The House on the other hand, has been turned by the advent of political parties into a de facto parliament, and almost immediately after the initial appearance of partisanship there, it failed to efficiently perform its function of insuring regionally-based majoritarian support.
The House's function in a nonpartisan system is to make impossible minoritarian oligarchies like the one that prevailed in Germany until World War I. The Senate's function is to make impossible majoritarian oligarchies like the one that lost to Sparta in the Peloponnesian War. The Senate managed to, in relevant part, survive the partisan divide that followed the first Presidential election, and perform its systemic function at near-perfect efficiency. The House did not fare similarly, and its systemic function was in large measure crippled. It was this event that created the current legislative minoritarian imbalance, not jockeying in the Constitutional Convention.
There seem to be two solutions to this. One is the parliamentarization of the Senate, an action that seems to have started, dating to around 1995, but is nowhere near complete. This would cripple the Constitutionally-envisioned purpose of the Senate on scale of the crippling of the House's functionality. This has the advantage of being spectacularly easy. It's one nuclear filibuster away. Regionally-based minoritarian structures would be quickly discarded as impediments to pure majoritarian will. Civil rights bills would always pass, as would flag-burning amendments. The second solution would be structural disincentivizations to partisanship in the House, but what structure these would take is unclear, as is how they would be implemented. The second solution also has the problem of running counter to decades-long historical trends in national politics.
No matter what needs to be done, it is unclear what Westmoreland's purpose is in trying to systemically prevent the consideration of whether imperfectly covering unaccounted-for AIDS cases at the expense of solid coverage of already-acknowledged cases is a better allocation of scare resources than continuation of solid coverage of only already-acknowledged cases. That seems to be a question that should at least be permitted to be raised in a government of all the people, whatever the answer.
Again, I apologize if this is the first in a series, and it turns out I'm jumping the caravan before it gets under way.
(Cross posted at A Village Idiot)
Posted by: the idiot | October 09, 2006 at 06:21 PM