Message to Maine: "Repeal and Replace the Real Mess of REAL ID Now"

Statement

Something very unusual happened on January 25th. In a scene reminiscent of our revolutionary past, the Maine Legislature overwhelming voted to refuse to implement a federal law. They were dead right. That's why I have introduced legislation in Congress to repeal the ill-conceived provisions in the REAL ID Act of 2005 which prompted their rebellion.

State-issued driver's licenses and identification cards are widely used as credentials for boarding aircraft, entering federal buildings, or other situations where identity must be established for security or other reasons. We learned the hard way that lax requirements and procedures can put phony IDs into the hands of people who will use these credentials to harm Americans. This weak link should be plugged up, but how?

Following the recommendation of the 9/11 Commission, Congress enacted a law which would have done the job sensibly and thoughtfully. With state DMV officials and other experts at the table, federal minimum standards for these IDs would be written into regulations. But in 2005, impatient congressional leaders pushed through a superseding law. Instead of working with people who actually know something about the subject, Congress dictated the minimum standards and required states, at their expense, to replace all driver's licenses and IDs with new ones by May, 2008. I voted against the REAL ID Act. The bill was not considered in the Senate. However, in a move that was distressingly common under the previous congressional majority, the bill's provisions were slipped into a must-pass supplemental appropriations bill and became law.

On March 1, 2007, the Department of Homeland Security issued 162 pages of proposed REAL ID regulations. As the governor of Wisconsin told The New York Times, "We have always known this law would be a nightmare for motorists and taxpayers, and President Bush's rules have just confirmed that nightmare."

The Department's rules do acknowledge one undeniable fact: compliance by May, 2008 would be "an impossible task." The proposed rules would permit states to delay full implementation until May, 2013. However, this new deadline has little real effect; the regulations also require that by early next year states must certify that they have a concrete plan to fully comply by 2013. So states would have to start committing major resources to this mandate now.

More significantly, giving states more time to implement an unworkable law is not a fix. First, the law and regulations are premised on the existence of systems that have not been and may never be created. For example, the law would require interoperability of all state DMV databases, a hugely complicated and expensive proposition that the regulations simply punt to the states to work out. Likewise, the law assumes that most documents used to obtain licenses (like birth certificates) can be verified using electronic databases that do not exist.

Second, implementation will be extraordinarily expensive. The Department's conservative estimate is $14.6 billion for the states and $7.8 billion for individuals over the next decade. The federal contribution to this mandate is a measly $40 million and the "right" to divert 20 percent of a state's homeland security grants to this purpose. Maine estimates that it would cost taxpayers about $180 million to comply.

Third, not just the program's costs are dumped on the states; so are federal responsibilities. For both constitutional and practical reasons, domestic security must be handled at a national level. Moreover, if the federal government wants to create a national identity card for this and other unspecified purposes —and that's exactly what this measure does—the American people are entitled to a full debate on this highly controversial plan.

Finally, this is also a disaster in waiting with respect to privacy, barely mentioned in the law and regulations. Personal information (including Social Security numbers and home addresses) must be entered on each card without any encryption requirement, easily available to anyone who scans the card, or at any DMV office. The potential for breaches of privacy and fraud is staggering.

Given the predictable mess this law will create, I introduced the Repeal REAL ID and Identification Security Enhancement Act of 2007. H.R. 1117 would repeal the current law's driver's license provisions and establish a rulemaking process requiring participation of the Homeland Security and Transportation Departments, state elected officials and DMVs, and experts in privacy, constitutional law, vital records management and other areas. My bill also would require privacy protection, correction of erroneous records, and bar private entities from scanning, selling, sharing or trading the information on the license. Federal funding to implement the changes would be authorized.

Maine was the first state to just say "no" to the REAL ID law; other states are following our lead. They understand that it is not enough merely to delay implementation of this deeply flawed law. Congress must replace it with realistic legislation that does not subvert our constitutional system, does not put personal information at risk, and does not impose the burden of an unfunded financial mandate on state taxpayers.

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