In Congress, it’s Hail Mary time

Written by Frank N. Wilner, Capitol Hill Contributing Editor
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In the people’s company town of Washington, D.C., the most popular refrain during lame duck sessions of Congress—the fewer than 60 days between congressional elections and adjournment—is the catchphrase from Mariah Carey’s iconic tune, “All I Want for Christmas Is You.”

The “You,” of course, includes White House nominations, Senate confirmations and still-pending legislation in the waning days of each two-year Congress—Hail Mary events, all, as the sole option to failure is a looming greater uncertainty of beginning the process afresh come the seating of the new Congress in January.

In the railroad community—a small one, indeed, but there are those who cherish it—lame-duck-session wants include congressional passage of special interest tax treatment for regional and short line railroads, and filling of vacant seats on the Surface Transportation Board, Amtrak’s Board of Directors, the Railroad Retirement Board and Federal Transit Administration.

As lawmakers have extended their House and Senate sessions to Dec. 20—a deadline for agreeing on stalled federal appropriations to keep government operating—likelihoods for finishing the unfinished are diminishing quickly. Thus, “Hail Mary, full of grace, can there be a rail version of Green Bay Packers quarterback Aaron Rodgers launching in 2015 a final-play, no-time remaining, 61-yard touchdown pass to defeat the Detroit Lions?”

Here is the current rail-related Hail Mary hopefuls list, transcribed from loose-lip chatter at select Capitol Hill watering holes—reliable sources, all; but, understandably, subject to correction by yet-to-occur events:

Regional and Short Line Railroad Investment Tax Credit

Benefiting some 600 small railroads, the regional and short line railroad investment tax credit—more commonly known as 45-G (for its provision in the Internal Revenue Code)—provides regional and short line railroads a 50% investment tax credit (capped at $3,500 per mile) for infrastructure upgrades and new equipment.

First enacted by Congress in 2005, the 45-G provision has never been permanent, and periodically faces sunsetting, absent Congressionally approved extensions. Beginning in 2017, the American Short Line and Regional Railroad Association (ASLRRA) recruited more than 225 House co-sponsors and some 54 Senate co-sponsors—Democrats and Republicans in both chambers—to make the 45-G provision permanent, but the bill failed to progress to the House or Senate floor for a vote.

House Republicans attempted in November to include the 45-G provision with other similar investment tax credits in an amendment to other legislation—making 45-G permanent, but reducing the credit to 30%. However, the House Republican leadership unwisely shut Democrats out of the process. So, when dozens of election-defeated House Republicans departed Washington prior to a floor vote on this so-called tax extenders package, it was assumed dead, as House Democrats, in retaliation for being shut out of the process, refused to lend support to the instant bill even though they were on record supporting 45-G.

With probably no more than 10 calendar days remaining in this Congress, the ASLRRA Hail Mary is for a stand-alone extenders bill—grouped with other popular non-railroad investment tax credits—that can now win bipartisan support in both the House and Senate. ASLRRA hopes also to preserve a cherished feature that allows 45-G investment tax credits to be sold for use by other small railroads.

If a 45-G extension is not passed by year’s end, there will be an effort in the new Congress, beginning in January, to attach a permanent 45-G investment tax credit to must-pass infrastructure legislation.

Surface Transportation Board

The 2015 Surface Transportation Board (STB) Reauthorization Act increased the size of the STB from three to five members, but the two new seats have never been filled. Since former chairman Dan Elliott, a Democrat, departed in late 2016, the board has operated with just two members—Republican Chairman Ann Begeman and Democratic member Deb Miller.

Earlier in 2018, President Trump nominated two Republicans and a Democrat to fill the vacant seats, but there has been no renomination of Miller, whose term expired in 2017, and who may remain only until Dec. 31, 2018, in a statutory lone holdover year.

Senate Minority Leader Chuck Schumer (D-N.Y.) has held up confirmation of the three Trump nominees pending renomination of Miller, which would send four nominations—two Democrats and two Republicans—to the Senate floor for confirmation.

The nominees for the three currently vacant seats are Patrick J. Fuchs, a senior legislative aide to Senate Commerce Committee Chairman John Thune (R-S.D.); Michelle A. Schultz, an attorney with the Southeastern Pennsylvania Transportation Authority (SEPTA); and Martin J. Oberman, a Chicago attorney who previously was chairman of Chicago Metra, which operates Chicagoland commuter rail service.

The Hail Mary for a renomination of Miller, and her subsequent Senate confirmation as part of a group of four, increasingly is unlikely.

It is becoming apparent that Schumer will agree to confirmation of one Republican and one Democrat—presumably Fuchs and Oberman, according to learned chatter. Fuchs would occupy one of the two still-vacant new five-year-term seats; Oberman would fill the seat vacated by Elliott and expiring Dec. 31, but simultaneously gain a new five-year term expiring in 2023.

That means Schultz, the spouse of former Trump White House attorney James D. Schultz, would have to be nominated anew in 2019; while Miller would depart Dec. 31 and have to await renomination in 2019, should she decide to remain unemployed and in the running. More likely, if not renominated and confirmed by year’s end, Miller will return to her home in Kansas, where she previously was Secretary of Transportation under Democratic and Republican administrations, and was unsuccessfully recruited earlier this year by Kansas Democrats to run for governor.

Amtrak

Three President-Trump-nominated candidates for the Amtrak board of directors are wanting of Senate confirmation that may require a Hail Mary.

Hopefuls include Rick A. Dearborn of Oklahoma, nominated to succeed former BNSF Chief Legal Officer Jeffrey R. Moreland, who is departing after 10 years on the Amtrak board; Leon A. Westmoreland of Georgia, nominated to a vacant seat; and Joseph Ryan Gruters of Florida, who would succeed Albert DiClemente, an Amtrak board member since 2009.

Dearborn, a former deputy chief of staff to Trump, previously chief of staff to then-Sen. Jeff Sessions (R-Ala.), and for most of his career on the professional staff of Republican politicians, has been dogged by his time as a Trump campaign adviser in 2016 when he allegedly received an email from a Republican lobbyist with the title “Kremlin Connection.” At Dearborn’s Senate Commerce Committee confirmation hearing, Sen. Bill Nelson (D-Fla.) asked Dearborn, “Do you have anything to comment on for the record with regard to these emails that came to you …?” Dearborn responded, “No, sir, I don’t.”

Leon A. Westmoreland, a residential construction executive, is a former Republican congressman from Georgia who served on the House Rail Subcommittee, twice voting to end Amtrak funding. He was then considered the second-most conservative member of the House. Westmoreland also pledged to vote against any global warming-related legislation that would raise taxes.

Joseph Ryan Gruters is a member of the Florida House of Representatives, a certified public accountant, and was co-chairman for Trump’s Florida campaign for President.

RAILROAD RETIREMENT BOARD

Another Hail Mary will be the filling of three seats on the three-member Railroad Retirement Board, headquartered in Chicago, and which administers the railroad industry’s unique retirement, unemployment and sickness benefits program. Railroad Retirement Board members are chosen not based on political affiliation, but rather, individually, to represent labor, management and the public, with the public representative serving as permanent chairman.

In November, Trump nominated Erhard R. Chorle, a Chicago attorney, to succeed Michael Schwartz as the board’s public member and chairman. The post has been vacant since August 2015, when Schwarz retired following 12 years in office. Chorle has extensive experience in pension and securities law, and will oversee—with the other two board members—the professionally managed employer and employee-funded trust funds from which railroad retirement and other benefits are paid.

Earlier this month, Trump said he would nominate Jonathan Bragg as the labor member to succeed Walter A. Barrows (formerly a Brotherhood of Railroad Signalman senior officer), and Thomas Jayne as the management member to succeed Steven J. Anthony (formerly a Norfolk Southern attorney).

Bragg currently is an officer of the Brotherhood of Railroad Signalman, and formerly a CSX conductor and signal maintainer. Jayne is a BNSF general attorney.

If the three are not confirmed—presumably together—new nominations will be required in 2019.

Federal Transit Administration

Thelma Drake, nominated by President Trump in May to head the Federal Transit Administration, still awaits Senate confirmation to a post headed by an acting administrator—Jane Williams—since 2015, after Administrator Peter J. Rogoff resigned to head Sound Transit in Seattle.

Drake, a former U.S. House Republican from Virginia, also served as director of Virginia’s Department of Rail and Public Transit.

Frank N. Wilner is author of six books, including Amtrak: Past, Present, Future; Understanding the Railway Labor Act; and Railroad Mergers: History, Analysis, Insight, all published by Simmons-Boardman Books. Wilner 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 Leadership (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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