Congressional Chaos?

WASHINGTON -- Though the dust of the midterm Congressional elections has mostly settled on Capitol Hill since last week, new and returning members of Congress have been no clearer on their priorities for higher education policy than they were before voters cast their ballots.

But while members are still largely mum about their policy positions heading into the 112th Congress, three Hill education staffers were willing to prognosticate, albeit guardedly, during a panel discussion Tuesday at the American Enterprise Institute. Also on hand were three AEI researchers and an education lobbyist, who were a little looser in what they shared with the assembled crowd.

The next Congress will bring with it “incredible turnover, probably the greatest turnover we’ve seen in a long time,” of members of Congress who were seen as champions of education and research, said Mark Schneider, a vice president at the American Institutes for Research and visiting scholar at AEI. The deaths in the last 14 months of Senators Edward Kennedy (D-Mass.) and Robert Byrd (D-W.Va.), as well as the retirements of Senators Judd Gregg (R-N.H.) and Arlen Specter (D-Pa.), and of Representative David Obey (D-Wisc.), among others, have left a sizable void on education in the House and Senate that has yet to be filled.

And, in that vacuum, the issues already on the education agendas of the House of Representatives and Senate appear to be the ones likely to define Congressional action on education, at least in the coming months.

Most of the conversation focused on the potential reauthorization of the Elementary and Secondary Education Act, but when talk turned to higher education, the discussion was almost exclusively about the U.S. Department of Education’s regulations on “gainful employment” and other financial aid issues, and on Senator Tom Harkin’s (D-Iowa) continued push to investigate for-profit colleges as chairman of the Health, Education, Labor and Pensions Committee.

Bethany Little, chief education counsel for the HELP committee, said that Harkin was determined to continue to scrutinize for-profit colleges. “What is going on for Americans who are in some cases being duped by these schools and being left with significant debt and no opportunity to pay it off because their diploma is either nonexistent or worthless is something [Harkin] cares deeply about,” she said. The senator, she added, “is not going to back away from an investigation that has brought to light really startling things.”

Little stressed that for-profit colleges ought to be singled out because lawmakers have chosen to do so time and time again in reauthorizing the Higher Education Act. “They have been treated in the law as different since the inception of the concept that they might access federal dollars,” she said. “In fact, sitting here at AEI, I feel really comfortable asserting that a for-profit motive in fact makes an institution different and that for-profit institutions are different from nonprofit and government institutions. I’m sure I’m not going to get a lot of argument on that point.”

Frederick M. Hess, resident scholar and director of education policy studies at AEI, said that it was “absolutely a no-brainer that the proprietary higher ed sector is rife with sleazy operators,” pointing to for-profit institutions’ ability to accept federal financial aid from students as the root cause of those problems.

A Republican staffer, Amy Jones, who works for Representative John Kline (R-Minn.), the presumptive new chairman of the House education committee, said that her party would push back, at least on the Education Department’s new rules for the Title IV federal financial aid program. “We have not been quiet on the gainful employment/program integrity front,” she said. “We have significant concerns about the regulations as they exist.”

But Jones wouldn’t tip her hand on what House Republicans would do to challenge the department's agenda, such as underfunding the Education Department’s mechanisms to enforce the regulations, putting forward new legislation or taking other actions to guard against the final gainful employment rules, which are expected to be released during the first few months of 2011. “We are thinking internally about what the process is going to be in terms of going forward,” she said.

Andrew P. Kelly, an education policy research fellow at AEI, said he thinks “the Republican House will likely push back” against gainful employment with legislation. “And that would run into a Democratically controlled Senate, particularly Senator Harkin’s committee, which would have a good time burying that on the schedule.”

Ultimately, Kelly said, “I think what you’re likely to see actually is dueling legislation,” as Republicans oppose the final regulations, and Harkin, Senator Richard Durbin (D-Ill.) and perhaps other Democrats push ahead on a promised bill to crack down on waste and abuse at for-profit colleges.

Head-butting and partisanship are likely to be overarching themes of the next Congress, and education is not likely to be spared. Dueling bills would likely contribute to the broader discord in Congress over education issues as Republicans push back against efforts by the Obama administration and Senate Democrats to rein in the for-profits.

“I think gainful employment has generated far more ill will among Republicans on the Hill than the administration has generally been willing to acknowledge,” Hess said. “I think Luke [Swarthout, senior education adviser to Harkin] running a little wild there with the witch hunt hearing didn’t do any favors in terms of bipartisan company. I think [Bob] Shireman [the former Obama administration deputy under secretary for postsecondary education] finally getting his dream of federalizing student lending has left some bruised feelings.”