The Politics of the REAL ID Revival Bill

In an earlier post, I catalogued the essential similarity between our nation’s failing national ID law - the REAL ID Act - and a bill called “PASS ID,” which essentially seeks to revive it. PASS ID is REAL ID with a different name.

Now let’s take a look at the politics around the national ID, and what caused Senators who were wary of the national ID to turn around and support it.

A year ago, this was the scene: The May 2008 deadline for compliance with REAL ID had passed - not a single state was fully compliant, and many states had passed laws barring their own participation.

Despite a great deal of saber-rattling about holding up American travelers at airports, the Department of Homeland Security had capitulated and given every state an extension - even states that refused to ask for them.

In the House and Senate, legislation was pending to repeal REAL ID and restore the identification security provisions from the Intelligence Reform and Terrorism Prevention Act. Senate sponsors included Patrick Leahy (D-VT), whose hearing in the Senate Judiciary Committee had exposed flaws in REAL ID, and Jon Tester and Max Baucus (both D-MT) whose state had been one of the national ID’s most vociferous opponents.

REAL ID was dead, and the only thing preventing Congress from making it official was a Republican administration and Department of Homeland Security secretary eager to demagogue the issue. They would paint movement of a repeal bill as a Democratic Congress going “soft on terrorism.”

Voters were weary of that approach to national security, and in the election that fall they chose a president well outside the terror-warrior mode. He was a Democrat, of course, and both the House and Senate saw Democratic pick-ups as well.

Over the course of 2008 and into early 2009, no new arguments for having a national ID surfaced - good or bad. The weakness of using a national ID system to control terrorism was understood by every serious student of the issue. And putting law-abiding American citizens into a national ID system was anathema even to many hard-line opponents of illegal immigration.

Repealing REAL ID in the 111th Congress would have presented little trouble. Simply letting it lie fallow would have been a politically safer near-equivalent. Sometime in 2009, Secretary Napolitano would simply have had to give out wholesale deadline extensions, as her predecessor had done just the year before. (These things are all still true, of course.)

In short, there was no substantive argument for reviving REAL ID, the political impediments to repealing it had weakened, and simply letting it fade away was an easy option too.

But while all the stars aligned for repeal (or continued rigor mortis), one cloud came across the sky: State lobbying groups, the National Governors Association and the National Conference of State Legislatures found in REAL ID an opportunity to gain influence. (Or perhaps it was just the lobbyists within those groups.)

If REAL ID were to move forward, and if they could make a plausible case that the federal government would fund it, the state lobbies would cement their role as supplicants in Congress for their “clients,” the governors and legislatures. They would have a permanent job begging Congress for money and managing federal control of state driver licensing policy.

They went to work. In meetings and telephone conversations with Senate staff, they spun the story that REAL ID was not going away. The “political reality,” they said, was that there was going to be a national ID program. The responsible thing to do, then, was to round down REAL ID’s sharpest edges - and free up those federal funds.

In exchange, the state lobby groups would wear down opposition from the nation’s governors and legislatures. If they could broker the sale of state authority over driver licensing to the federal government, they would lock in their role as lobbyists for the states on that issue.

Compromise is catnip in Washington, D.C. And staffers for Senators who had opposed REAL ID convinced themselves and their bosses that introducing a new version of REAL ID with a different name was a grand bargain.

Senator Akaka (D-HI), whose committee hearings had revealed the weakness of REAL ID, sponsored the new REAL ID bill. Senators Leahy, Tester, and Baucus switched their positions on having a national ID. And they were joined by Senators Carper (D-DE) and Voinovich (OH), a token Republican. The PASS Act was born - the old REAL ID law with a new name.

And a grand bargain it may be. The states and the federal government may just unite to corral the American people into a national ID system.

With its huge tax revenues - and willingness to borrow on the credit of future generations - the federal government may put up the tens of billions of dollars it takes to fund the national ID system. The states will get to grow their driver licensing bureaucracies, even though they lose power to decide what their driver licensing bureaus do. NGA and NCSL - the real winners - lock in their lobbying business.

This is not the kind of bargain our politicans and government are supposed to produce, though. The distinct roles that the Constitution sets out for the states and federal government are supposed to create conflict among them, not collaboration.

When governments get together, the result is not good for liberty. And the national ID system found in the “PASS ID Act” is not good for liberty. But that’s the politics of the REAL ID revival bill.