[First published in Transportation Weekly on May 6, 2014]

The first law providing federal aid to states for construction and maintenance of roads was enacted almost a century ago, in 1916. That bill (H.R. 7617, 64^th Congress) was reported from the brand-new House Committee on Roads without any restrictions on federal money being used for toll roads.

But during consideration on the House floor, on January 25, 1916, Rep. John Farr (R-PA) offered an amendment to the bill, appending a restriction at the end of the appropriation carried by the bill: “Provided, That no portion of this appropriation shall be used in the construction, maintenance, or repair of all toll roads.”

The wisdom of this proviso was apparently so self-evident that the House passed the Farr amendment without debate. The language was later cleaned up by the House before passage to read that “no portion of this appropriation shall be used in the construction, improvement, maintenance, or repair of any toll road” and the bill was sent to the Senate.

The Senate Committee on Post Offices and Post Roads reported the bill six weeks later with a substitute that made several changes in the House bill, and the Senate panel struck out the House-passed restriction on federal aid to toll roads. But on the Senate floor, Sen. Jacob Gallinger (R-NH) offered an amendment, not to the appropriation (since appropriations are temporary, as are their restrictive provisos) but to the establishing paragraph of the bill, adding “Provided, that all roads constructed under the provisions of this act shall be free from tolls of all kinds” – an open-ended and seemingly permanent restriction.

The Senate passed the Gallinger amendment by voice vote after some debate, then a few days later, Sen. Wesley Jones (R-WA) offered an amendment extending Gallinger’s tolling prohibition by adding “nor shall any of the money appropriated under this act be used for constructing extensions of, or mere branch roads out from, toll roads.” This, too, passed by voice vote.

The following month, in June, 1916, the conference committee kept the original Gallinger language but dropped the more expansive Jones language. The “Act of July 11, 1916” (39 Stat. 355) provided that “all roads constructed under the provisions of this act shall be free from all tolls of all kinds,” and this language was then incorporated into the more permanent Federal Highway Act of 1921 (42 Stat. 212) as section 9: “…all highways constructed or reconstructed under the provisions of this Act shall be free from tolls of all kinds.”

Congress then enacted a separate law in 1927 (44 Stat. 1398) carving out an exemption so that federal aid to be used to help build toll bridges, on the “condition that when the amount contributed by such State or States, or political subdivision or subdivisions thereof, in the construction of such bridge shall have been repaid from the tolls, the collection of tolls for the use of such bridge shall thereafter cease, and the same shall be maintained and operated as a free bridge.”

These two tolling provisions – the general ban and the exemption for toll bridges (soon after amended to include tunnels as well) – stayed remarkably unchanged over the next thirty years. The 1956 Interstate act (70 Stat. 374) added to the toll bridge exemption another exemption so that the Interstate system could incorporate toll roads (like the Pennsylvania Turnpike) and existing toll bridges and tunnels into the system, or new toll facilities could be built as part of the Interstate system, but it prevented federal-aid highway funds from being used for the construction, reconstruction or improvement of those toll facilities. In other words, toll roads, bridges and tunnels could be part of the Interstate system so long as they had always been, and would always be, 100 percent toll-financed.

In 1958, Congress codified all of the existing highway laws into title 23, United States Code. The original 1916 ban on tolling on the federal-aid system became section 301, while the 1927 toll bridge exemption (expanded to tunnels as well) and the 1956 Interstate system exemption for previously existing toll facilities became section 129.

Today, section 301 of title 23 reads precisely as it read at its codification in 1958: “Except as provided in section 129 of this title with respect to certain toll bridges and toll tunnels, all highways constructed under the provisions of this title shall be free from tolls of all kinds.” But Congress has steadily expanded the section 129 exemptions over the years, tinkering with the provision in nearly every highway bill since 1960, so that it now reads like this.

The tolling restriction in section 129 was amended to establish a pilot project in 1987 and then a permanent exemption in 1991 to allow non-Interstate federal-aid roads built as free roads to be converted to toll roads under certain circumstances. (It’s now 23 U.S.C. 129(a)(1)(F).)

But despite that, and despite all of the other general exemptions that from the general tolling restriction that exist in section 129 – for new toll facility construction, reconstruction of existing toll facilities, conversion of Interstate HOV lanes to toll HOT lanes, et cetera – Congress has always avoided opening the door to unlimited tolling of existing free Interstate lanes that were built with federal taxpayer money. (Congress has twice, in 1998 and 2005, tried limited pilot projects to allow this, but both pilot projects had trouble fulfilling their potential because the restrictions laid down in the law were difficult to follow, both procedurally and politically.)

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