Monday, December 01, 2014

STB Chairman Dan Elliott: A Wile E. Coyote existence

Written by  Frank N. Wilner, Contributing Editor
STB Chairman Dan Elliott: A Wile E. Coyote existence

Surface Transportation Board (STB) Chairman Dan Elliott, recently remarried and frantic over pending Senate confirmation to a second five-year term, is proving to have more lives than cartoon character Wile E. Coyote.

When first nominated by President Obama in 2009, the now 52-year-old labor union attorney feared he had met his Waterloo when facing confirmation by the Senate Commerce Committee, owing to an ill-advised comment of his union employer’s president—at the request of the union’s chief lobbyist. The comment credited the union and its Political Action Committee as helping to engineer the White House nomination. A hasty written mea culpa by the union president was sufficient, and Elliott was confirmed as the 110th member of the STB and its predecessor Interstate Commerce Commission. No one was more chagrined by the unfortunate, albeit politically motivated, sideshow than Elliott, demonstrably one of the most unassuming high-achievers ever to hold a senior Administration post.

In fact, it was Elliott’s second cousin—Sen. Sherrod Brown (D-Ohio), the swing vote on Obamacare (the Affordable Care Act)—who most engineered Elliott’s nomination.

Although Elliott’s background was labor law, he proved a quick study, augmented through detailed briefings by senior staff as to the essentials of commerce law, finance, and railroad economics. An attentive listener, Elliott speedily gained the respect of STB staff and, especially, shipper and carrier attorneys.

When later called to explain himself and the STB before congressional inquisitors—chief among them Senate Commerce Committee Chairman Jay Rockefeller (D-W.Va), who chaired Elliott’s confirmation hearing and who consistently has been a shipper advocate and carrier irritant—Elliott validated a 1930 comment of Walker D. Hines, a career railroad attorney who was director general of railroads during their World War I federalization: “Men become good commissioners by being commissioners.” Elliott’s emerging record spoke for itself—a chairman neither deaf to captive shipper perceptions nor blind to data supporting railroad positions; seeking to bridge the divide by injecting greater transparency in STB decision-making.

One might expect this record a template for renomination to a second term. Yet as the days dwindled down on his first term, the phone failed to ring.

Speculation spread that new Obama political debts required Elliott depart in favor of whomever; that Rockefeller wished for a shipper advocate to succeed Elliott; that Senate Majority Whip Dick Durbin (D-Ill.) wanted the post for fellow Chicago pol and good friend Joe Szabo (the under-fire Federal Railroad Administrator who instead announced he will depart Jan. 15 to become an analyst with a Chicago transportation consultancy); that Durbin wanted Elliott out as punishment for not being more aggressive in superintending a solution to Chicago-area rail congestion and associated Amtrak delays; or that Rep. James Clyburn (D-S.C.), the third highest ranking Democrat in the House, wanted his cousin and former STB member (1998-2001) William Clyburn to return to the agency.

Indeed, Elliott was pronounced kaput by congressional and White House prognosticators who, as sport, handicap—between sipping Manhattans and martinis at Capitol Hill watering holes—presidential nominees for federal slots requiring Senate confirmation.

But Elliott, in Wile E. Coyote fashion, beat the odds, winning his fervently craved Obama renomination for a second five-year term (to expire Dec. 31, 2018). The White House press office first announced on Nov. 12 the president’s intent to renominate Elliott, and made it official later that day.

Of course, Elliott still must pass Senate muster—or hit the bricks Dec. 31, as he is in the midnight hour of his statutorily permitted one-year holdover that allows Senate confirmed STB members to remain in office a maximum of one year beyond the expiration of their term. The Anti-Deficiency Act would set him and others up for a felony conviction were Elliott to occupy the office even an hour past his midnight, Dec. 31, departure deadline. Few expected such to be an issue.

Following Elliott’s renomination announcement, prognosticators anticipated his Senate confirmation to proceed with greater haste than displayed by House Republican John Mica in attacking, as too low, the menu price of a ham sandwich and beer aboard an Amtrak passenger train. You would think. Alas, Elliott’s situation tests the skills even of Otto “Abbadabba” Berman, the numbers whiz for Depression-era gangster Dutch Schultz.

Without explanation, Sen. Rockefeller cancelled a Nov. 18 announced confirmation hearing that was expected to focus on Elliott. One unsubstantiated account was that the White House personnel office had failed to forward the necessary paperwork. Others opined something more sinister—that, perhaps, the White House personnel office acted prematurely in delivering to the White House press office advice on the renomination.

As this column has emphasized previously, those who know don’t talk; and those who talk don’t know. Yet the barrooms of Capitol Hill are legendary for loose lips among those who do know—or pretend to know, or revel in spreading mischief. So, as the barkeeps stir, shake, and pour, wagers and bragging rights again are on the line as to Elliott’s future.

He could be confirmed, of course—even without a Commerce Committee hearing where a thumbs up or thumbs down recommendation to the entire Senate is made. Elliott’s nomination could proceed directly to the Senate floor, with no committee hearing. But it is difficult to accept that Rockefeller, who retires Dec. 31, would miss an opportunity for a confirmation hearing to grill Elliott, one last time, on behalf of shippers who have been so generous in making political contributions to Rockefeller; or that incoming Commerce Committee Chairman John Thune (R-S.D.) would allow an opportunity to pass for similar grilling by Thune, begetting trailing headlines back home to the delight of railroad-phobic agricultural interests.

Failing a Senate confirmation vote—and the Senate floor schedule is utterly congested as the outgoing Senate Democratic leadership seeks to wrap up business prior to adjournment soon after Dec. 12—there are other options.

A deus ex machine (god from the machine) could appear in the form of a Presidential recess appointment between the time of the Senate adjournment and Dec. 31. Such a recess appointment would permit Elliott to remain at his post at least through Dec. 31, 2015.

Absent a recess appointment, he would depart federal employment Dec. 31, but could, of course, be renominated by Obama after Jan. 1, and the Senate confirmation process would begin anew—albeit under Republican tutelage in 2015, although there is no indication that Republicans look differently upon Elliott, a Democrat, than do Democrats.

Realistically, a renomination and confirmation process could extend into the spring or later, as each new Congress is slow to begin the day-to-day business of governing, and Elliott does not have unlimited funds by which to live unemployed while waiting by the telephone.

Indeed, STB member Douglas Buttrey, a Republican, was nominated in November 2003 by President George H.W. Bush, but not confirmed by the Senate until the following May. Worse, ICC member Paul Lamboley, a Democrat, was nominated by President Reagan four times beginning in December 1982, but it was not until March 1984—15 months later—that the Senate acted on that nomination and confirmed Lamboley.

To limit Elliott’s unemployment after Dec. 31, should he not be confirmed or given a recess appointment before then, Obama could give Elliott a recess appointment in 2015, as the Senate frequently goes into a series of recesses in January and February. Such a recess appointment would allow Elliott to remain in office at least through Dec. 31, 2016 (a year longer than a recess appointment in 2014 owing to wording in the Constitution).

Significantly, a 2014 Supreme Court ruling (National Labor Relations Board v. Noel Canning, 573 U.S. ___) severely limits a President’s ability to make recess appointments, requiring, according to the court, a recess of more than three days, but “probably” fewer than 10.

As the clock ticks, Senate Republicans might not be so keen next year in confirming a Democrat for a full term extending beyond Obama’s time in office. Should the White House shift political control in the November 2016 elections, the STB’s Democratic majority would shift to Republicans. Thus, a recess appointment may be Elliott’s only realistic option should he not be confirmed before the Senate adjourns this month.

Should Elliott not be confirmed or given a recess appointment, expect Democrat Deb Miller to be named STB chairman; and the STB to be one of three members short until a successor to Elliott is nominated and Republican-controlled-Senate confirmed, which could be well into 2015 or even not while Obama remains in office. The agency has operated before with just two members—and even a lone member for a period of time.

As for recess appointments, Obama so far has made fewer than 35, while, among recent Presidents, Reagan (two terms) made 232; George H.W. Bush (one term), 78; Clinton (two terms), 139; and George W. Bush (two terms), 171.

Recess appointments of ICC/STB members are not rare. Of 112 ICC/STB members since the regulatory agency’s creation in 1887, 11 have received recess appointments—the most recent in January 1993 when President George H.W. Bush provided one to Republican Greg Walden, Bush’s former associate White House counsel. The seat had been vacated by Republican Ed Emmett, who resigned in November 1992. Walden served only until Thanksgiving that year, and was succeeded by Democrat Linda Morgan, who was nominated by incoming Democratic President Clinton and confirmed by the Senate in February 1994.

It was that modern day savant and denizen of fictional Moe’s Tavern, Homer Jay Simpson, who counseled that alcohol is “the cause of, and solution to, all of life’s problems.” That political prognostication is the favored stuff of Capitol Hill watering holes may have a lot to do with such counsel. Elliott, by the way, does not imbibe.

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