Return of the Quackers

If it looks like a duck and quacks like a duck, it must be a duck. I don’t know when that saying was first used to make a political point, but it can be traced back as least as far as the days of McCarthyism and the search for communists among us.

But as a shortcut in public policy debate, it gained the most traction during the early days of the Reagan administration. I generally heard the phrase repeated during congressional hearings and bar arguments as: “If it looks like a duck and quacks like a duck, it must be a tax.”

That was always a pretty good hint that someone wasn’t a fan of the user-fee approach to reducing the federal budget deficit championed by President Reagan and the Grace Commission.

In 1981 we didn’t use fancy words like “sequestration,” but in many ways, the debate has come full circle: The U.S. faces a serious budget crisis, and user fees are being touted as a big part of the solution.

Ronald Reagan and J. Peter Grace made compelling arguments: A user fee would only affect those who benefit from a service, and it reduced inefficient and wasteful government spending by dispelling the illusion that government funds are ever free. Pain was closely attached to any gain. 

The highway user fee is an example. If you want a good highway system, you drive on the highways, buy the gasoline, pay the fee. As long as the money was spent building highways, the imagery worked. Then Congress started to siphon off funds to subsidize mass transit, build bicycle racks and landscape hiking trails. Face it, it’s just a gas tax.

The Food and Drug Administration plans to impose hefty user fees. The agency clearly needs money to conduct its statutory obligations. What isn’t clear is if the FDA’s proposals meet the standard the Supreme Court set in its 1998 rejection of the Harbor Maintenance Tax as a user fee. The court said a true user fee had to have a close connection between the cost of the service received and the compensation charged.

Here’s a present day conundrum: In the same month that scores of industry groups lobbied against FDA user fees, the private sector at Port Hueneme frantically lobbied to be allowed to pay user fees for services from Customs and Border Protection.

Sequestration cuts meant no overtime hours for vessel inspectors and corresponding port shutdowns two days a week. The cost of a vessel sitting idle in a harbor is $25,000 to $55,000 a day; overtime pay per vessel boarding is a couple hundred dollars. Those numbers create an unmistakable nexus of pain and gain.

Let the quacking begin.

Contact Stephanie Nall at

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