[House Report 113-293] [From the U.S. Government Publishing Office] 113th Congress Report HOUSE OF REPRESENTATIVES 1st Session 113-293 ====================================================================== ELECTION ASSISTANCE COMMISSION TERMINATION ACT _______ December 12, 2013.--Committed to the Committee of the Whole House on the State of the Union and ordered to be printed _______ Mrs. Miller of Michigan, from the Committee on House Administration, submitted the following R E P O R T together with MINORITY VIEWS [To accompany H.R. 1994] [Including cost estimate of the Congressional Budget Office] The Committee on House Administration, to whom was referred the bill (H.R. 1994) to terminate the Election Assistance Commission, having considered the same, report favorably thereon without amendment and recommend that the bill do pass. Background and Need for Legislation INTRODUCTION Congress established the Election Assistance Commission (EAC) as part of the Help America Vote Act of 2002 (HAVA). HAVA allocated large sums of federal money to states to replace punch card and lever voting systems and to develop statewide voter registration databases. The administration of these payments to states was a principal function of the EAC. In addition, the EAC was established to operate a federal voting system testing and certification program, maintain a clearinghouse of election administration information, and perform a series of research studies mandated by HAVA. Today, the flow of election administration funds to states from the federal government has ended. The EAC has completed its HAVA-required research (with one exception discussed below). Even with those programs, the EAC has overhead costs that exceed its budget for program administration. Without them, the EAC is a bureaucracy in search of a mission. Worse, it is a bureaucracy with a history of poor financial and managerial decisions and (apparently meritorious) claims of employment discrimination based on political viewpoint and military service. The EAC has repeatedly become mired in partisan controversies. The National Association of Secretaries of State has twice called on Congress to dissolve the EAC. Heeding the Secretaries' call and recognizing the record before it, this Committee reported H.R. 672 in the 112th Congress to eliminate the EAC. The full House in the 112th Congress approved H.R. 3463, which would have eliminated the EAC along with the Presidential Election Campaign Fund. The Committee's report on H.R. 672, House Report 112-100, part 1, details the Committee's findings regarding the EAC's completion of its functions and history of mismanagement. The EAC has existed with no commissioners since 2011, no quorum of commissioners since 2010, and no executive director or general counsel since 2011 and 2012, respectively. ORGANIZATION AND BUDGET OF THE EAC The EAC was established with four full-time commissioners appointed by the President and confirmed by the Senate. HAVA directs that one commissioner be appointed at the recommendation of each of the Speaker of the House, House Minority Leader, Majority Leader of the Senate, and Minority Leader of the Senate. HAVA also established the positions of executive director and general counsel, each appointed by the commissioners. All other staff positions are established and hired at the discretion of the executive director. The EAC has existed with no commissioners since 2011, no quorum of commissioners since 2010, and no executive director or general counsel since 2011 and 2012, respectively. HAVA authorized appropriations for the EAC of up to $10 million in each of the years 2003, 2004 and 2005. No appropriations were authorized for years after 2005. Notwithstanding the authorization's limit of $10 million per year and its duration only through 2005, in FY 2010 the EAC's budget was $17.959 million. In FY 2012, the appropriated budget fell to $11.5 million. The EAC's requested budget for FY 2014 is $11.062 million. Of that, $2.75 million would be transferred to NIST for technical and scientific support of the testing and certification program and $8.312 million is for operation of the agency. The budget request the EAC submitted to Congress breaks the operating budget request into the following amounts: ------------------------------------------------------------------------ ------------------------------------------------------------------------ ``Indirect Costs'' (management/overhead) 55% $4,577,446 Grants.................................. 2.7% 228,471 Research................................ 9.8% 810,971 Testing and Certification............... 9.5% 786,914 Communications.......................... 8.7% 721,197 Inspector General....................... 14.3% 1,187,500 ------------------------------------------------------------------------ Adding up the budgets for the four program departments, they total $2,547,553. This means the agency has a management cost of $4.5 million for $2.5 million worth of programs. This is an unjustifiably inefficient organization by any measure, and an even worse ratio than in the last Congress. THE EAC'S ROLE IN ELECTIONS Since the enactment of HAVA, there have been three major contested elections that called into doubt the functioning of the election process: for Governor of the State of Washington in 2004, for the House of Representatives in the 13th District of Florida in 2006 and for the U.S. Senate in Minnesota in 2008. Each resulted in a protracted dispute that was not resolved until months after the election, and each led to charges of system breakdowns in the election process and partisan manipulation by election officials. Neither HAVA nor the EAC prevented the problems uncovered in those elections, and the EAC had no role in resolving them. The EAC does not register voters, nor does it have any enforcement authority over laws governing voter registration. The EAC has no role in the casting or counting of ballots, or resolving election disputes. Election officials have direct functional connections to the EAC when they receive funds from it and when they seek to use voting systems certified by it. Other contact is informational, and the informational function does not need to be performed by the federal government. Likewise, voters have direct functional connections to the EAC only when they use the EAC's website to download the national voter registration form--which is available from other sources and can be made available on any government web site. Other contact between the EAC and voters is informational, and the information from the EAC is second-hand because the actual rules and procedures for elections are set by state and local jurisdictions. When the President deemed it necessary to conduct a review of the 2012 election, he did not turn to the EAC to perform it. Instead he created, through executive order, a Presidential Commission on Election Administration. This shows both a lack of confidence in the EAC and the lack of a need for it to address perceived issues in election administration. EAC PROGRAM AREAS Grants Some election officials have questioned the elimination of the EAC because of the hardship their jurisdictions will suffer without continued federal funding. No funds have been provided since 2010 and it appears unlikely they will be provided in the future. The lack of funding is not caused by the proposed termination of the EAC. Rather, the absence of funds available in a strained federal budget is merely one more reason why operation of the EAC is an unnecessary and wasteful use of scarce taxpayer resources. With no funds left to distribute, there is no reason to retain the EAC to disburse them. Research HAVA required the EAC to perform five specified research studies: (1) facilitating military and overseas voting, (2) human factors in voting system design, (3) using Social Security numbers in voter registration, (4) electronic and Internet voting and (5) free or reduced postage for absentee ballots. Four of those studies have been completed. The fifth study, on the use of Social Security numbers in voter registration, is now some eight years overdue. In the face of this delay, it seems unlikely the final study will be completed in the foreseeable future. The EAC also produces documents called Election Management Guidelines and Quick Start Guides. The agency has completed all of these documents that it plans to produce. Even if they had not been completed, their value has been questioned in congressional testimony and elsewhere. With the required research effectively complete, and other materials likewise complete, there is no reason to retain the EAC to perform research. There is no Congressional mandate for further research, and any research conducted likely would be designed to justify the EAC's continued existence rather than to fulfill an important and uniquely federal need. Testing and certification Prior to the enactment of HAVA, the National Association of State Election Directors operated a program to test and certify voting systems so that election officials purchasing such systems had some independent validation of their quality and performance. The Federal Election Commission also played a role in the process prior to the enactment of HAVA through the voting system standards it issued in 1990. HAVA created a federal program to perform this function. The program involves four parts: developing the standards voting systems are required to meet in order to be certified (the Voluntary Voting System Guidelines, or VVSG), accrediting labs to test voting systems against those standards, conducting the tests, and certifying that systems satisfy the standards. Twenty states and territories make no use of the federal testing and certification program. The other 35 states and territories use the federal standards and certification process in some way--some by requiring federal certification of the systems they purchase, some by requiring that systems be tested to federal standards in a federally-accredited lab and some by requiring testing to federal standards without specifying the type of lab that may conduct the tests. The last full adoption of a VVSG occurred in 2005, leaving the EAC process far behind the development of technology in voting systems. The federal testing and certification program using standards developed under the HAVA system is not effectively supporting voting system quality. For states who want to participate in a joint process rather than create and test to their own standards, there are alternative institutions to the federal government such as one or more academic facilities, an association of election officials, or a consortium of states established for the purpose. The state stakeholders who bear the burdens of selecting and paying for voting systems are in the best position to decide upon and manage the appropriate process. Even if the testing and certification program were to continue as a function of the federal government, it does not justify operating a separate federal agency. Communications Prior to the enactment of HAVA, the Federal Election Commission operated a clearing house of election administration information for state and local election officials. This clearinghouse has been absorbed into the EAC's web site. The operation of a web site collecting data on election administration does not justify operating a separate federal agency. MANAGEMENT AND PARTISAN CONTROVERSY As described in the report accompanying H.R. 672 in the 112th Congress, a series of incidents at the EAC have shown a pattern of questionable decision-making, poor financial choices and partisan controversy. These include questionable spending, claims of retaliation and a hostile work environment, and politicized decision-making. Most disturbingly, in two separate attempts to hire a general counsel the EAC discriminated against applicants, first on the basis of political affiliation and then on the basis of military service. Both resulted in the payment of substantial sums of taxpayer funds to the applicants. CONCLUSION The EAC has completed most of its major functions. Its operations and budget show that its mission cannot justify maintaining a federal agency. The EAC has a record of discrimination based on political affiliation and military service and a history of partisan controversy. The functions of the EAC that continue to be necessary and valuable can be performed elsewhere more efficiently and at least as effectively. Introduction and Referral On May 13, 2013, Congressman Gregg Harper of Mississippi introduced H.R. 1994, which was referred to the Committee on House Administration. Hearings There were no legislative hearings held on H.R. 1994. Committee Consideration On June 4, 2013, the Committee on House Administration met to consider H.R. 1994. The Committee ordered the bill reported favorably to the House without amendment by voice vote with a quorum present. Committee Record Votes In compliance with House Rule XIII, clause 3(b), requiring the results of each record vote on an amendment or motion to report, together with the names of those voting for and against, to be printed in the Committee report, the Committee states that there were no record votes during the Committee's consideration of H.R. 1994. Committee Oversight Findings and Recommendations In compliance with House Rule XIII, clause 3(c)(1), the Committee states that the findings and recommendations of the Committee, based on oversight activities under House Rule X, clause 2(b)(1), are incorporated into the general discussion section of this report. Statement of Budget Authority and Related Items The bill does not provide new budget authority, new spending authority, new credit authority, or an increase or decrease in revenues or tax expenditures and a statement under House Rule XIII, clause 3(c)(2), and section 308(a)(1) of the Congressional Budget Act of 1974 is not required. Congressional Budget Office Cost Estimate Pursuant to clause 3(c)(3) of rule XIII of the Rules of the House of Representatives, the following is the cost estimate provided by the Congressional Budget Office pursuant to section 402 of the Congressional Budget Act of 1974: July 16, 2013. Hon. Candice Miller, Chairman, Committee on House Administration, House of Representatives, Washington, DC. Dear Madam Chairman: The Congressional Budget Office has prepared the enclosed cost estimate for H.R. 1994, the Election Assistance Commission Termination Act. If you wish further details on this estimate, we will be pleased to provide them. The CBO staff contacts are Maggie Morrissey and Matthew Pickford. Sincerely, Douglas W. Elmendorf. Enclosure. H.R. 1994--Election Assistance Commission Termination Act Summary: H.R. 1994 would eliminate the Election Assistance Commission (EAC) and transfer some of its responsibilities to the Federal Election Commission (FEC), while the Office of Management and Budget (OMB) would be responsible for winding down the commission's contracts and agreements. The EAC would terminate within 60 days of the bill's enactment. CBO estimates that implementing H.R. 1994 would reduce spending that is subject to appropriation by $42 million over the 2014-2018 period. Enacting the bill would not affect direct spending or revenues; therefore, pay-as-you-go procedures do not apply. H.R. 1994 contains no intergovernmental or private-sector mandates as defined in the Unfunded Mandates Reform Act (UMRA) and would not affect the budgets of state, local, or tribal governments. Estimated cost to the Federal Government: The estimated budgetary impact of H.R. 1994 is shown in the following table. The costs of this legislation fall within budget function 800 (general government). ---------------------------------------------------------------------------------------------------------------- By fiscal year, in millions of dollars-- ------------------------------------------------------- 2014 2015 2016 2017 2018 2014-2018 ---------------------------------------------------------------------------------------------------------------- CHANGES IN SPENDING SUBJECT TO APPROPRIATION Terminating Election Assistance Commission: Estimated Authorization Level....................... -9 -10 -10 -10 -11 -50 Estimated Outlays................................... -8 -9 -9 -10 -10 -46 Federal Election Commission: Estimated Authorization Level....................... * * * * * 1 Estimated Outlays................................... * * * * * 1 Office of Management and Budget: Estimated Authorization Level....................... 2 1 0 0 0 3 Estimated Outlays................................... 2 1 0 0 0 3 Total Changes: Estimated Authorization Level................... -7 -9 -10 -10 -11 -46 Estimated Outlays............................... -6 -8 -9 -10 -10 -42 ---------------------------------------------------------------------------------------------------------------- Note: * = less than $500,000. Basis of estimate: For this estimate, CBO assumes that the legislation will be enacted before the end of 2013, that amounts not needed after eliminating the EAC would not be appropriated, that the necessary amounts for new activities will be appropriated near the start of each fiscal year, and that the new spending will follow historical patterns for similar activities. The EAC advises state and local governments on administering elections and provides grants to states to replace punch-card voting machines and make other improvements to voting systems. The commission also develops voluntary standards for managing elections, serves as a clearinghouse for information, and reviews procedures for administering federal elections. Terminating Election Assistance Commission Eliminating the EAC would reduce the need for appropriated funds in future years. Under current law, up to $10 million is authorized to be appropriated annually for the EAC. In fiscal year 2013, the commission received an appropriation of $9 million. Assuming appropriations would continue under current law at that level with an adjustment for anticipated inflation, CBO estimates that terminating the EAC would reduce spending that is subject to appropriation by $46 million over the 2014- 2018 period. Federal Election Commission H.R. 1994 would transfer some EAC responsibilities to the FEC. Based on information from the EAC and FEC, CBO expects that those new responsibilities would require the FEC to hire one or two additional employees. CBO estimates that those additional employees would cost nearly $1 million over the next five years. Office of Management and Budget OMB would be responsible for closing down the EAC and fulfilling the agency's final contracts and agreements. Based on information from the EAC, final responsibilities would involve auditing competitive grant programs. CBO estimates that closing down the agency would cost $3 million over the 2014- 2018 period, assuming the appropriation of the necessary amounts. Pay-As-You-Go considerations: None. Intergovernmental and private-sector impact: H.R. 1994 contains no intergovernmental or private-sector mandates as defined in UMRA and would not affect the budgets of state, local, or tribal governments. Estimate prepared by: Federal costs: Matthew Pickford and Maggie Morrissey; Impact on state, local, and tribal governments: Elizabeth Cove Delisle; Impact on the private sector: Paige Piper/Bach. Estimate approved by: Theresa Gullo, Deputy Assistant Director for Budget Analysis. Performance Goals and Objectives In compliance with House Rule XIII, clause 3(c)(4), the Committee states that the general discussion section of this report includes a statement of the general performance goals and objectives, including outcome-related goals and objectives, for which H.R. 1994 authorizes funding. Constitutional Authority Statement Congress has the power to enact this legislation pursuant to Amendment XVI of the U.S. Constitution relating to the collection of income tax and additionally to Article I, Section 4 of the U.S. Constitution granting Congress the authority to make laws governing the time, place and manner of holding Federal elections. Advisory on Earmarks In accordance with House Rule XXI, clause 9, the Committee states that H.R. 1994 does not contain any congressional earmarks, limited tax benefits, or limited tariff benefits as defined in clause 9(e), 9(f), or 9(g) of Rule XXI. Changes in Existing Law Made by the Bill, as Reported In compliance with clause 3(e) of rule XIII of the Rules of the House of Representatives, changes in existing law made by the bill, as reported, are shown as follows (existing law proposed to be omitted is enclosed in black brackets, new matter is printed in italic, existing law in which no change is proposed is shown in roman): HELP AMERICA VOTE ACT OF 2002 SECTION 1. SHORT TITLE; TABLE OF CONTENTS. (a) * * * (b) Table of Contents.--The table of contents of this Act is as follows: * * * * * * * TITLE X--TERMINATION OF COMMISSION Sec. 1001. Termination. Sec. 1002. Office of Management and Budget to perform transition functions. Sec. 1003. Savings provisions. Sec. 1004. Return to Federal Election Commission of authority to carry out certain functions under National Voter Registration Act of 1993. Sec. 1005. Commission termination date. * * * * * * * TITLE II--COMMISSION Subtitle A--Establishment and General Organization * * * * * * * PART 3--TECHNICAL GUIDELINES DEVELOPMENT COMMITTEE SEC. 221. TECHNICAL GUIDELINES DEVELOPMENT COMMITTEE. (a) * * * * * * * * * * (g) Termination.--Effective on the Commission termination date described in section 1005, the Development Committee is terminated. * * * * * * * TITLE X--TERMINATION OF COMMISSION SEC. 1001. TERMINATION. Effective on the Commission termination date, the Commission (including the Election Assistance Commission Standards Board and the Election Assistance Commission Board of Advisors under part 2 of subtitle A of title II) is terminated and may not carry out any programs or activities. SEC. 1002. OFFICE OF MANAGEMENT AND BUDGET TO PERFORM TRANSITION FUNCTIONS. Except as provided in section 1004, the Director of the Office of Management and Budget shall, effective upon the Commission termination date-- (1) perform the functions of the Commission with respect to contracts and agreements described in subsection 1003(a) until the expiration of such contracts and agreements, but shall not renew any such contract or agreement; and (2) take the necessary steps to wind up the affairs of the Commission. SEC. 1003. SAVINGS PROVISIONS. (a) Prior Contracts.--The termination of the Commission under this title shall not affect any contract that has been entered into by the Commission before the Commission termination date. All such contracts shall continue in effect until modified, superseded, terminated, set aside, or revoked in accordance with law by an authorized Federal official, a court of competent jurisdiction, or operation of law. (b) Obligations of Recipients of Payments.-- (1) In general.--The termination of the Commission under this title shall not affect the authority of any recipient of a payment made by the Commission under this Act prior to the Commission termination date to use any portion of the payment that remains unobligated as of the Commission termination date, and the terms and conditions that applied to the use of the payment at the time the payment was made shall continue to apply. (2) Special rule for states receiving requirements payments.--In the case of a requirements payment made to a State under part 1 of subtitle D of title II, the terms and conditions applicable to the use of the payment for purposes of the State's obligations under this subsection (as well as any obligations in effect prior to the termination of the Commission under this subtitle), and for purposes of any applicable requirements imposed by regulations promulgated by the Director of the Office of Management and Budget, shall be the general terms and conditions applicable under Federal law, rules, and regulations to payments made by the Federal Government to a State, except that to the extent that such general terms and conditions are inconsistent with the terms and conditions that are specified under part 1 of subtitle D of title II or section 902, the terms and conditions specified under such part and such section shall apply. (c) Pending Proceedings.-- (1) No effect on pending proceedings.--The termination of the Commission under this title shall not affect any proceeding to which the Commission is a party that is pending on the Commission termination date, including any suit to which the Commission is a party that is commenced prior to such date, and the Director of the Office of Management and Budget shall be substituted or added as a party to the proceeding. (2) Treatment of orders.--In the case of a proceeding described in paragraph (1), an order may be issued, an appeal may be taken, judgments may be rendered, and payments may be made as if the Commission had not been terminated. Any such order shall continue in effect until modified, terminated, superseded, or revoked by an authorized Federal official, a court of competent jurisdiction, or operation of law. (3) Construction relating to discontinuance or modification.--Nothing in this subsection shall be deemed to prohibit the discontinuance or modification of any proceeding described in paragraph (1) under the same terms and conditions and to the same extent that such proceeding could have been discontinued or modified if the Commission had not been terminated. (4) Regulations for transfer of proceedings.--The Director of the Office of Management and Budget may issue regulations providing for the orderly transfer of proceedings described in paragraph (1). (d) Judicial Review.--Orders and actions of the Director of the Office of Management and Budget in the exercise of functions of the Commission under section 1002 shall be subject to judicial review to the same extent and in the same manner as if such orders and actions had been issued or taken by the Commission. Any requirements relating to notice, hearings, action upon the record, or administrative review that apply to any function of the Commission shall apply to the exercise of such function by the Director. SEC. 1004. RETURN TO FEDERAL ELECTION COMMISSION OF AUTHORITY TO CARRY OUT CERTAIN FUNCTIONS UNDER NATIONAL VOTER REGISTRATION ACT OF 1993. Effective on the Commission termination date, there are transferred to the Federal Election Commission any functions transferred to the Election Assistance Commission under section 802 (relating to functions described in section 9(a) of the National Voter Registration Act of 1993). SEC. 1005. COMMISSION TERMINATION DATE. The ``Commission termination date'' is the first date following the expiration of the 60-day period that begins on the date of the enactment of this title. ---------- FEDERAL ELECTION CAMPAIGN ACT OF 1971 * * * * * * * TITLE III--DISCLOSURE OF FEDERAL CAMPAIGN FUNDS * * * * * * * ADMINISTRATIVE PROVISIONS Sec. 311. (a) The Commission shall-- (1) * * * * * * * * * * (8) prescribe rules, regulations, and forms to carry out the provisions of this Act, in accordance with the provisions of subsection (d); [and] (9) transmit to the President and to each House of the Congress no later than June 1 of each year, a report which states in detail the activities of the Commission in carrying out its duties under this Act, and any recommendations for any legislative or other action the Commission considers appropriate[.]; (10) carry out the duties described in section 9(a) of the National Voter Registration Act of 1993. * * * * * * * ---------- SECTION 9 OF THE NATIONAL VOTER REGISTRATION ACT OF 1993 SEC. 9. FEDERAL COORDINATION AND REGULATIONS. (a) In General.--The [Election Assistance Commission] Federal Election Commission-- (1) * * * * * * * * * * MINORITY VIEWS OF RANKING MEMBER ROBERT A. BRADY, REP. ZOE LOFGREN AND REP. JUAN VARGAS H.R. 1994, ``Election Assistance Commission Termination Act'', represents the third time House Republicans have tried to eliminate the EAC, the only federal agency tasked with helping state and local officials administer their elections. Our position on this legislation has not changed and we opposed it both in the Committee and on the House floor all through the 112th Congress. It is our hope that we can work with the Majority to arrive at mutually agreeable positions on these matters, rather than endlessly entertain the same shortsighted legislation from Congress to Congress. There is too much important work to be done to continually waste time like this. Touted as a cost-cutting measure, elimination of the EAC will only result in cost-shifting to states and other federal agencies at the expense of effective election administration. The multitude of services the EAC provides has been discussed at length in previous Committee reports, but it is useful to address them again. Among the valuable functions of the EAC are:LEAC's Election Administration and Survey is the largest and most comprehensive collection of election administration information in a single source and is freely available to the public. LEAC's testing and certification function ensures that voting machine manufacturers are held accountable for malfunctioning machines that disfranchise voters. LEAC's Accessible Voting Technology Initiative focuses on making casting a ballot accessible for disabled voters. LThe EAC has compiled and maintains a comprehensive database on military and overseas voting statistics and information and provides annual UOCAVA reports to issue best practices for UOCAVA voters used by legislatures to improve voting for military members abroad. LEAC publishes materials in more than half a dozen languages, ensuring that eligible voters who speak a primary language other than English are able to effectively cast their ballot as intended and are never disfranchised because of a language barrier. The debacle of the 2000 presidential election led to the creation of the EAC. ``The agency has outlived its purpose'' is a popular argument from the Majority, though we saw in the 2012 presidential election, particularly in the interminably long lines voters faced, that election administration is far from perfect. Elections administration is an ever-changing and often unpredictable business and it's shortsighted and foolhardy to proclaim that the only agency tasked with improving it has no purpose. The Democrats of the Committee on House Administration offered an amendment to H.R. 1994 that reauthorized the EAC, to allow the agency to continue their important mission. It called for the EAC to determine the extent to which our polling places are accessible for disabled voters pursuant to the Americans with Disabilities Act to ensure all voters can cast a ballot. The amendment also tasked the EAC with determining the most cost-effective methods to administer elections as well as methods for increasing the cost-effectiveness and efficacy of the agency itself. Finally, the amendment would have provided more transparency in the testing and certification of voting machines by establishing an escrow account to prevent machine manufacturers from paying directly the laboratories auditing their machines, and would have made information about the testing and certification results available to the public. Unfortunately, the amendment was rejected on a voice vote. The singular goal of the EAC is to improve election administration in our federal elections. Though the agency's services are often overlooked, particularly in light of the constant attempts to abolish it, elections officials from across the country and on both sides of the aisle will attest to its value. Standing up for the EAC means standing up for the franchise that so many have worked so hard to expand. We must protect that sacred right and preserve the EAC. Robert A. Brady. Zoe Lofgren. Juan Vargas.