A superwaiver provision is moving through the House that would bring a huge shift of power to the Executive Branch and states to override congressional authorizations and funding decisions for a variety of low-income programs.

A superwaiver provision is moving through the House that would bring a huge shift of power to the Executive Branch and states to override congressional authorizations and funding decisions for a variety of low-income programs.

The superwaiver is part of the TANF welfare reform authorization bill ( H.R. 4700) that is expected to come before the House on Wednesday or Thursday of this week (May 15 or May 16). As was feared, the provision is much more troublesome than previous versions (see this article in the last issue of the OMB Watcher). While these superwaiver provisions are in the TANF bill, they go well beyond concerns about welfare reauthorization. If enacted, the superwaiver would represent a huge shift of power from the Legislative to the Executive Branch of government. The superwaiver would undermine the power of Congress, as our elected legislators, to authorize programs and appropriate funds. It would also undermine the power of citizens and taxpayers to affect deliberations and decision-making about federal programs and funding.

The superwaiver or "State-Flex" provisions are being pushed under the guise of giving more flexibility to states to administer low-income programs. However, they go far beyond "flexibility" and provide the means for states and the Executive Branch (through Cabinet Secretaries) to bypass Congressional authority and redirect Congressionally-authorized funds with no public input and little accountability. President Bush is playing a key role in advocating for the superwaiver.

What is the Superwaiver?

It allows a state to apply to each Federal agency with jurisdiction over any of the below-named programs for an unlimited number of waivers to "integrate" two or more of these programs, waiving many of the statutory and regulatory requirements attached to the individual programs.

What programs would be affected?

The following expanded list of programs have all been included in the legislation:

• TANF
  
• Social Services Block Grant
  
• Most job-training programs under the Workforce Investment Act (except Title C)
  
• Job Opportunities for Low-Income Individuals
  
• Employment Services under the Wagner Peyser Act
  
• Adult Education and Family Literacy Act
  
• Child Care and Development Block Grant
  
• United States Housing Act (except most of the Section 8 rental program and the Section 7 program for designated public housing for occupancy by certain populations)
  
• Titles I, II, III, IV of the McKinney-Vento Homeless Assistance Act
  
• Food Stamp Program

Given the substantially expanded number of programs, this version does add some very vaguely defined "safeguards," including the requirement of performance objectives, ongoing and final evaluations, and a presentation and report to Congress (after the fact). There are still only three primary requirements for approval:

• The project has a reasonable likelihood of achieving the objectives of the programs that are included.
  
• The project must have a reasonable expectation of meeting cost neutrality requirements, i.e., the cost of administering the project shouldn’t exceed the cost of the individual programs.
  
• The project involves the coordination of two or more programs.

As before, a waiver cannot be granted that violates civil rights, the purposes or goals of the program, maintenance of effort requirements, health or safety, labor standards, environmental protection, and some other requirements specific to each of the covered programs. However, waivers of provisions to do with eligibility or benefits or virtually anything else not covered by the previous list ARE allowed.

H.R. 4700 also returns to the legislation the provision that if the Secretary of a Department fails to approve an application for a waiver within 90 days, the waiver is considered granted.

The superwaiver gives unprecedented authority to the executive branch at the expense of congressional appropriating and authorizing committees. It would allow the waiver of the eligibility and benefit standards that were authorized by Congress for each program. It would allow provisions that were congressionally mandated specifically to protect low-income people to be undermined. It would allow funds to be shifted from one program to another program, superceding the appropriations decisions made by Congress every year. Finally, rather than the largely open and transparent Congressional proceedings, the granting of waivers would be a closed-door deliberation between the Executive Branch and a state (or if not approved in 90 days, solely the state’s discretion), with no opportunity for outside participation.

For a more detailed analysis see today's Center on Budget and Policy Priorities analysis.

More than 200 nonprofit organizations from around the country and representing a variety of areas of interests, signed on to a letter urging House members to oppose the super-waiver. Read the letter and see who signed on.