Congressional Timeout for Spellings

June 8, 2007

Two weeks after Sen. Lamar Alexander warned the Education Department not to trample on Congress's authority in pursuing changes in federal rules governing accreditation, leaders in the House of Representatives used a legislative procedure to send a similarly direct message.

Tucked into a 2008 spending bill for the Education Department and other agencies that a House subcommittee passed Thursday afternoon (see related article here) was a provision that would prohibit the department from using any of its funds to "promulgate, implement or enforce" new federal regulations related to accreditation. The provision, which is called a "limitation" under House rules, is a time-honored tactic used by members of Congressional appropriations committees to stop federal agencies from taking regulatory or other actions that the lawmakers oppose.

The provision was included at the urging of Rep. David Obey, the Wisconsin Democrat who is chairman of the Appropriations Committee and of its Subcommittee on Labor, Health and Human Services, Education and Related Agencies. The committee's staff director, who as is Congressional standard practice asked not to have her name used, said that the provision was meant to express "bipartisan concern about what the department is doing, and that the department may be exceeding its authority."

The subcommittee aide said that Obey had heard increasing concerns from members of Congressional education committees and from college and university presidents about the negotiated rule making process that the department has undertaken in recent months. They have expressed fears, the staff member said, that "the department is exceeding its statutory authority and may be trying to do an end run" around Congress at a time when the House and Senate are poised (yet again) to consider legislation to renew the Higher Education Act, the federal law that governs accreditation and the federal government's other programs and policies related to higher education.

"There is considerable interest in slowing them down," the House staff member said. She acknowledged that the spending legislation approved by the subcommittee Thursday -- which is unlikely to be signed into law before the fall -- may not be passed in time to stop the department from issuing new regulations, which could come within weeks. "But at the minimum, we can send a strong message that we're concerned."

The legislative maneuver by Obey follows on the late May statement in which Alexander, the former education secretary and University of Tennessee president, said on the Senate floor that he would introduce legislation that would prevent Secretary Margaret Spellings and the department from issuing final rules on accreditation until after Congress passes a bill to renew the Higher Education Act. The two actions signal increasing opposition in Congress to the department's recent efforts to push improvements in higher education in part through the government's role in overseeing accreditation.

Those efforts have been highly controversial among many college officials and accreditors, who have complained that the department's plan to impose new federal rules and to step up the department's oversight of accreditors through its advisory panel amounts to increasing the federal role in higher education -- a charge department officials have repeatedly rejected.

College leaders, who for months have been encouraging members of Congress to step in to slow down the department's efforts, said they welcomed Obey's actions in the wake of Alexander's. "We're gratified that Congressman Obey is taking on this enhanced federalization of accreditation, which has my membership more aggrieved than I've seen them in a long time," said David Ward, president of the American Council on Education, which represents more than 2,000 college presidents.

"We'll still have to make our case to Congress on the substance and merits of the issues," said Ward. "But this makes it clear that [lawmakers do] not want unilateral actions taken by the department until Congress has a chance to act."

A spokeswoman for the department declined to comment on the House panel's vote. But after Alexander sent his similar message last month, the spokeswoman broadly defended the rule making process. “The department has initiated this very important and public dialogue with representatives from all sectors of the higher education and accreditation community. We have extended the invitation to the community to provide input and assistance to the department in developing regulations that respect institutional mission and autonomy while at the same time protecting the public interest. The students, families and taxpayers who spend billions of dollars annually deserve our attention and leadership in assuring quality for the hard earned dollars they spend for college.”

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