Might it be just possible that Phineas Baxandall found the appalling Senate Transportation bill “uncontroversial” because he did not have the time to read all of its 1600-plus pages?

I cannot think of a more generous explanation.

The Senate bill is uncontroversial because it emerged out of many months of compromise and bipartisan consensus building. It makes do under an austerity budget without taking on big issues such as reducing oil consumption or shifting investment to reflect the unprecedented national shift since 2004 toward less driving (confirmed by recent data revisions). The Senate bill’s signature programs stretch dollars by ensuring that repair and maintenance of existing assets isn’t neglected and that performance is finally tracked.

Three other relatively small provisions stand out as ways to deliver more bang for the buck or find revenue in common-sense places.

The first would remove privatized toll road miles from consideration when allocating federal highway funds. When a state sells off responsibility for maintaining a stretch of highway to a private company, it could no longer also ask taxpayers to pay for the upkeep. Eliminating this “double dipping” would leave more federal aid dollars allocated to other highway miles that haven’t been sold off. The provision applies only to existing publicly constructed roads that states sell for a cash payment, typically borrowed by private companies against decades of future toll hikes they will be entitled to charge drivers. These exotic deals can only make sense if they produce long-term savings for the public. They shouldn’t need subsidies.

Another Senate measure would end the current taxpayer subsidy allowing accelerated depreciation of the value of a highway when it has been leased to a private operator. While the useful life of a road is considered to be about 45 years, current tax law creates a special provision for operators of privatized toll roads to write off this value in 15 years, essentially borrowing from the future at the expense of other taxpayers. The Senate bill would simply require private toll road financiers to write off the lost value of their investments at the rate they actually lose value. Private highway leasing deals would need to save money on their own merits rather than rely on hidden taxpayer subsidies. The measure also only applies to privatization of existing highway capacity. It would not change tax rules for public-private partnerships for the construction of new capacity.

Another tax loophole measure sponsored by Senators Levin and Conrad would save money by authorizing action against overseas banks that impede U.S. tax enforcement. The provision gives the Treasury a tool to stop off-shore financial institutions that "significantly impede U.S. tax enforcement." Under existing law, Treasury can take measures against offshore banking institutions that are set up primarily for money laundering. If foreign banks create shell companies and hidden accounts for money laundering, for example, Treasury can currently take measures such as to prohibit U.S. banks from accepting wire transfers or honoring credit cards from those foreign banks. The Senate bill would give the same tools to Treasury against foreign banks promoting illegal tax evasion, a measure the Joint Committee on Taxation estimates would raise $900 million over ten years.

Not every measure in the Senate bill promotes more effective spending as well as it could. The Senate bill wisely expands the types of transportation projects that could apply for loans from the TIFIA program. That makes sense since both the House and Senate would increase spending on this program more than eight-fold in their bills. However, both bills would also eliminate performance criteria as a basis for distributing TIFIA funds, instead doling out limited funds on a first-come-first-serve basis among eligible applicants. This would be a step backwards in terms of delivering the best performance for our transportation dollars.

If political and budgetary constraints have prevented the Senate from proposing a bold transformation in how America invests in transportation, then we should be thankful where it has at least found pragmatic little ways to save money and improve performance.

To say that "the Senate bill isn't free from controversy" is an understatement. The 33 members of the House conference committee and their staffs are currently plowing through the 1,600 pages of the Senate bill (MAP-21) and trying to identify questionable and controversial provisions. Among the items they are focusing on as potentially objectionable are the following:

1. The Senate bill has made an extensive use of offsets over a period of ten years to cover spending over two years ---or rather just 15 months, the effective length of the Senate bill at the termination of the current extension (June 30 2012 -September 30, 2013). Of the total revenue-increase offsets only $3.1 billion would be transferred to the Highway Trust Fund (HTF) during the life of the bill while another $10.9 billion would be credited to the Fund over a period of 10 years. This practice has been criticized as "accounting gimmickry."

2. The largest two-year transfer into the HTF is an outright $4.5 billion appropriation from the General Fund ("out of money in the Treasury not otherwise appropriated," Sec 40313 of MAP-21). This sum is only partially offset over the two-year period.

3. The largest single revenue-raising offset to transfers into the HTF ($9.5 billion over 10 years, $3.1 billion over two years) is "Pension Funding Stabilization." This largely inscrutable provision, wholly unrelated to transportation, takes up 41 pages of the MAP-21 bill. Some believe that money taken now from traditional pension retirement plans in this manner will ultimately have to be repaid, very likely through a future taxpayer bailout.

3. While the legitimacy of the "pay-fors" is potentially the most controversial feature of the bill, other aspects of MAP-21 also are being questioned. For example, the Senate bill includes over $6.8 billion in new non-HTF spending that has nothing to do with the core purpose of the bill.This includes the RESTORE Act ($4.5 billion over 10 years), and the creation and extension of two non-transportation programs: a National Endowment for the Oceans, Coasts and Great Lakes (Sec. 1603(4) of Map-21) and a seven-year re-authorization for the Land and water Conservatioin Fund (Sec. 1701 of MAP-21).

4. An amendment affecting the treatment of "transportation enhancements" shifts the flexibility to decide how to spend the enhancement set-aside money from the state DOTs to local government agencies, thus substantially modifying an earlier agreement reached by EPW Committee chairman Sen. Barbara Boxer (D-CA) and Ranking Member Sen. James Inhofe (R-OK).

5. Other MAP-21 provisions that have raised questions include a requirement that every new motor vehicle beginning in 2015 be equipped with a recording "black box" designed to store data relating to vehicle safety; and authority to revoke passports of suspected tax delinquents as a way of encouraging them to pay up (which the bill estimates would raise $743 million over ten years in offsets.)

6. The Senate bill contains the controversial "Bingaman amendment" (named after its sponsor, Sen. Jeff Bingaman (D-NM)) This provision would discourage public-private partnerships by penalizing states that lease transportation facilities to the private sector. The Senate bill would also eliminate the use of Private Activity Bonds. Taken together, these provisions would have "a chilling effect" upon future private investment in infrastructure according to the Building America's Future coalition and other transportation stakeholders.

While Sen. Boxer told reporters last week that "approximately 80 percent" of the bill is non-controversial, we suspect that she was referring to the EPW portion of the bill, large portions of which are indeed devoid of controversy and are supportable by both sides as desirable program reforms. However, it is the remaining 20 percent --- mostly finance and revenue provisions -- that are causing serious problems for the House conferrees. Whether these conflicts can be successfully resolved will determine whether a transportation bill will be presented for the President's signature this year or whether we will be faced with another extension ---this time an extension lasting until next year.

Note: We owe much of the above information to an analysis carried out by Gary Hoitsma, Editor of The Washington Letter on Transportation (www.washingtonletter.com), and published in his newsletter during the months of April and May.