Wednesday, January 14, 2015

A second act at STB for Dan Elliott?

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A second act at STB for Dan Elliott?

Proving once again he has more lives than cartoon character Wile E. Coyote, former Surface Transportation Board (STB) Chairman Dan Elliott is poised to receive his second White House renomination. The first renomination expired with adjournment of the 113th Congress in December after the Senate failed to confirm him. A formal announcement of the second renomination will be made this week.

If reconfirmed—and it's a big "if"—Democrat Elliott would be the first member of the 127-year old STB and its predecessor Interstate Commerce Commission (ICC) to have departed owing to an expired seat and then returned to the agency via a new nomination and Senate confirmation.

Jacob J. (Jake) Simmons had an intermezzo, but under different circumstances. Simmons, having been nominated by President Reagan and confirmed to the ICC by the Senate in April 1982, voluntarily resigned his seat in February 1983 to become Under-Secretary of the Interior, oonly to return 19 months later following a second nomination by Reagan and confirmation by the Senate in September 1984. During his second act, Simmons served from 1984 to 1996 when his term expired.

If there is to be a second act for Elliott, the Republican-controlled Senate will have to be in a charitable mood. That's because Senate confirmation would allow Elliott to remain in office until at least Dec. 31, 2018, or some 24 months into the next administration. As Democrat Deb Miller's term does not expire until Dec. 31, 2017, an Elliott confirmation 

would mean the three-member STB would remain under Democratic control for at least a year into a new administration that could well boast a Republican president. In political Washington, such matters are noticed, logged in red pen, and oft discussed.

Then, again, relatively obscure federal agencies are, well, obscure; and truth be told (with apologies to the STB bar association), the STB may be even less known than Spiro (Who?) Agnew.

Elliott was first nominated by President Obama and confirmed by the Senate in 2009 to a seat expiring Dec. 31, 2013. By statute, STB members may remain in office for an additional 12 months following expiration of their term if a successor has not been nominated and confirmed by the Senate, or provided with a recess appointment.

Thus, Elliott continued to serve as there seemed no doubt—especially as his cousin is Sen. Sherrod Brown (D-Ohio)—that Elliott would be renominated. Shippers and railroads—and seemingly all who came in contact with him in official Washington—remarked as to what a pleasant fellow this Elliott is. More emphatically, he had proven neither to be deaf to captive shipper perceptions of ill-treatment by regulated railroads, nor blind to data showing railroads have yet to achieve revenue adequacy through an entire business cycle. Elliott's votes delivered victuals to both sides—maybe not all either side sought, but certainly enough so as not to brand him by one party or the other persona non grata as a regulator.

Why Obama waited until Nov. 12, 2014, to renominate Elliott remains a subject of intense barroom speculation—as does the question of why the then-Democratic controlled Senate Commerce Committee cancelled a scheduled confirmation hearing and allowed the Elliott nomination to perish with expiration of the 113th Congress.

Had the White House personnel office flubbed the dub and forgotten until the midnight hour to serve up the renomination?

Was then Senate Majority Whip Dick Durbin (D-Ill.), who advises his Chicago pol pal Obama on nominations, upset that Elliott was not sufficiently aggressive as STB chairman in superintending regulatory actions to solve Chicago-area rail congestion? Durbin, after all, previously squelched the naming as chairman of veteran STB member Frank Mulvey—a highly qualified economist, railroad expert and former House Democratic aide—for a perceived snub when Durbin unsuccessfully, and allegedly in violation of STB ethics rules, sought to lobby Mulvey on Chicago rail congestion. Elliott seemed to take note, put on a tough game face, and waded into the matter, soon evoking kudos from Durbin.

Elliott's renomination followed. Then it languised in the Senate, with then Commerce Committee Chairman Jay Rockefeller (D-W.Va.) cancelling, without explanation, the Nov. 18 Elliott confirmation hearing and not scheduling another. By all accounts, the captive-shipper friendly Rockefeller held no grudge toward Elliott. So did an unidentified Senate Democrat or Republican put a hold on Elliott? Senatorial courtesy typically honors such requests. For sure, Republicans—especially House Rail Subcommittee Chairman Jeff Denham of California, who is not without powerful friends in the Senate—were unhappy with Elliott's vote (along with Miller) to pre-empt state environmental laws and allow high-speed rail construction to commence between Fresno and Bakersfield. With Elliott gone, Republican STB member Ann Begeman—who voted "no"—could be counted on to stalemate future problematic votes on California high-speed rail.

danelliottstbFor whatever reason, the Elliott renomination never reached the Senate floor, and Elliott (photo at left) cleaned out his desk—uneaten snacks and all—on Dec. 31, and bid adieu to an adoring agency staff that throughout Elliott's chairmanship voted the agency the No. 1 best small agency place to work in the federal government.

As is permitted by the STB's governing statute, Begeman agreed that Democrat Deb Miller become acting chairman, shifting to Miller all decision making on the priority and progress of most cases before the board. It is not the first time the STB has operated with but two Senate confirmed members. In fact, Roger Nober was a decision-making board of just one for a number of months.

As Democrat Miller previously served as transportation secretary to Kansas conservative Republican Gov. Sam Brownback; and won high praise from former Kansas Republican Gov. Bill Graves, who is now president of American Trucking Associations, her continuing as STB acting chairman surely should not upset the Senate leadership, nor, specifically, the new chairman of the Senate Commerce Committee, John Thune (R-S.D.).

In fact, Thune, who is expected to introduce legislation increasing the size of the STB from three to five members, may well wish to keep options open while his bill—which also would contain provisions favorable to shippers—is debated.

Thune, who is considering a 2016 run for the White House, thus must keep in mind the GOP donor base in California—a conservative lot that shares Rep. Denham's opposition to high-speed rail spending and which might not react favorably with checkbooks should Denham allow his Commerce Committee's imprimatur to be placed on Elliott.

STB Trivia

Besides Miller, only one other Kansan has served on the ICC/STB. Kansas Republican George Stafford (1967-1980) was the first presidentially named (by Nixon) chairman of the former ICC after Nixon's Reorganization Plan No. 1 won congressional approval in 1970, shifting from ICC members to the president authority to name a permanent chairman. Previously, the chairman's post rotated as determined by the then 11 sitting ICC members.

As for Elliott, now unemployed, the wait for confirmation—if it comes—could be weeks or months. Most recently, Republican STB member Douglas Buttrey waited six months between nomination and confirmation in 1994. The record is held by Paul Lamboley, who waited 15 months for his favorable confirmation vote in 1984. Buttrey and Lamboley held their existing employment while awaiting Senate confirmation. Elliott lacks that luxury.

Obama could give Elliott a recess appointment, which is possible anytime the Senate is in recess for more than three days (otherwise unspecified by a recent Supreme Court decision), but Obama previously chose not to use the opportunity after the Senate adjourned in mid-December. In fact, Obama has made far fewer recess appointments than any of his modern predecessors.

Since creation of the ICC in 1887, only 11 ICC/STB members have received recess appointments – the first in 1906 by President Teddy Roosevelt of Republican Edgar E. Clark; the most recent in 1993 by George H.W. Bush of Republican Greg Walden, who was Bush’s associate White House counsel, and then in 1998 by Bill Clinton of Democrat William Clyburn, cousin of Rep. James Clyburn (D-S.C.).

Elliott learned of his intended White House renomination as The Ohio State University—from which he earned his law degree—won the national football championship Jan. 12. Elliott did his undergraduate work at the University of Michigan, where the ICC's first chairman, Thomas M. Cooley, taught law from 1859-1884.

Should Elliott be confirmed to a second term, factoid fans will debate whether he should have two numbers designating his historical placement. President Grover Cleveland, for example (1885-1889), who coincidentally in 1887 signed into law the Interstate Commerce Act that created the ICC, had a four-year interlude (Benjamin Harrison, 1889-1893) before winning a second term (1893-1897), and is designated by White House historians as the 22nd and 24th president. Simmons, by contrast, remains designated the 93rd ICC/STB member despite having two terms non-overlapping terms, suggesting an Elliott confirmation would leave him as the 110th member, not the 110th and 113th (Deb Miller, 111th; Ann Begeman, 112th).

Nobody expected an attempt by Elliott to remain in office after Dec. 31. In fact, it would have been a felony violation of the Anti-Deficiency Act. But then nobody expected John W. Bush (1961-1972) to overstay his term of office back in 1972. Bush had been promised renomination by President Nixon, but the promise was upset when Sen. Robert Taft (R-Ohio) objected. So it was that Nixon gave Alfred T. McFarland (1972-1977) a recess appointment in November 1972. Bush contended a Senate confirmation was necessary under the then statutory language, and he refused to depart. Within hours, and while Bush was at lunch, security guards removed his locked office door from the hinges, packed his desk contents, framed photographs and a pair of mittens into a wheeled cart and made the office ready for recess appointee McFarland. Bush abandoned the fight. McFarland subsequently was formally nominated by Nixon and confirmed by the Senate.

Following are links to two earlier commentaries on Dan Elliott's travails:

Hello? It's Dan Elliott for President Obama

STB Chariman Dan Elliott: A Wile E. Coyote existence

Frank N. Wilner, Contributing Editor

Frank N. Wilner is author of six books, including, Amtrak: Past, Present, Future; Understanding the Railway Labor Act; and, Railroad Mergers: History, Analysis, Insight. He earned undergraduate and graduate degrees in economics and labor relations from Virginia Tech. He has been assistant vice president, policy, for the Association of American Railroads; a White House appointed chief of staff at the Surface Transportation Board; and director of public relations for the United Transportation Union. He is a past president of the Association of Transportation Law Professionals. Wilner drafted the railroad section of the Heritage Foundation’s Mandate for Change (Volumes I and II), which were policy blueprints for the two Reagan Administrations; and was a guest columnist for the Cato Institute’s Regulation magazine.

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