Dan Elliott’s STB renomination hearing: May 6

Former Surface Transportation Board (STB) Chairman Dan Elliott, whose renomination to a second five-year term has been on ice since November, will have a Senate Commerce Committee confirmation hearing May 6, but will remain estranged from the agency unless and until the entire Senate acts favorably on the renomination.

Elliott’s first term expired Dec. 31, 2013. By statute, he was permitted to remain in office 12 additional months while awaiting renominantion and reconfirmation. He could have been displaced sooner had President Obama nominated another individual to the seat and the Senate confirmed that individual.

For reasons unknown, Obama failed to renominate Elliott, also a Democrat, until the 11th month of Elliott’s 12-month holdover period. For reasons equally unknown, then Senate Commerce Committee Chairman Jay Rockefeller (D-W.Va.) failed to grant Elliott a confirmation hearing after his November 2014 renomination.

Thus, Elliott departed the STB on Dec. 31, and the seat has remained vacant, with Democrat Deb Miller serving as acting chairman. The agency’s third member is Republican Ann Begeman. It is not uncommon for the STB—or other multi-member federal regulatory agencies—to operate without a full complement of members. In fact, the three-member STB operated with just one member for a number of months during the George W. Bush administration.

In renominating Elliott—in November 2014 and again in January 2015 (as became necessary owing to a new Congress being seated)—Obama indicated he would rename Elliott as permanent chairman if Elliott is confirmed by the Senate.

Sen. John Thune (R-S.D.), who became Senate Commerce Committee chairman in January, when the second Elliott nomination was made, has not indicated why he waited until now to schedule a confirmation hearing for Elliott.

Confirmation hearings typically seek to elicit a nominee’s viewpoints, which typically are expressed in ambiguous terms, as nominees are not expected to hold preconceived opinions on prospective cases they will be deciding if confirmed. It is more common for senators, with their own preconceived notions as to how an agency should act, to use the hearing as a bully pulpit to scold the agency for past decisions and to encourage the nominee to “do better.” Given recent railroad service failures, growing public fear of accidents involving crude-oil carrying trains, and long-sought efforts by some shipper groups for more aggressive economic regulation of railroads, there should be no shortage of lawmaker lectures directed at Elliott and the STB during his confirmation hearing.

It is expected that the Commerce Committee will recommend that the entire Senate vote to confirm Elliott to a second five-year term that will expire Dec. 31, 2018. (Note that the term-clock is in sync with the seat and not the nominee, meaning the second five-year term for the seat held by Elliott began Jan. 1, 2014.)

If and when that confirmation vote will be taken to the Senate floor is not known. Under Senate procedure, even a single senator can block the vote without being identified or specifying a reason. Should one or more senators wish to block Elliott’s confirmation, it is more likely it will be done by keeping his name from reaching the Senate floor.

Consider that Senate confirmation would allow Elliott to remain in office until at least Dec. 31, 2018, or almost 24 months into the next administration. As fellow Democrat 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 the next administration, which could be a Republican one. That could be one reason Elliott’s name does not reach the Senate floor for a vote.

Although Elliott’s cousin is Ohio Democratic Sen. Sherrod Brown, Senate Minority Whip Dick Durbin (D-Ill.) has expressed frustration that Elliott, while STB chairman, was not sufficiently aggressive in superintending regulatory actions to solve Chicago-area rail congestion. However, Elliott absorbed the blows, became more aggressive and eventually evoked kudos from the previously frustrated Durbin.

On the Republican side, there are senators influenced by House Rail Subcommittee Chairman Jeff Denham (R-Calif.), who is 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 Begeman—who voted “no”—could be counted on to stalemate future problematic votes on California high speed rail.

As for shippers and railroads, all publicly remark as to what a pleasant fellow Elliott is. 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. Rail labor has no concerns, as Elliott previously was employed for 16 years as an attorney with the United Transportation Union, the largest of railroad labor organizations.

In the mix, but not terribly likely to interfere with the Elliott confirmation, is Thune-sponsored legislation—S. 808, the Surface Transportation Board Reauthorization Act—that would increase the size of the STB from three to five members. If it does pass in some form, it almost certainly will not do so in the Senate and House prior to mid or late 2016.

If confirmed to a second term, 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, only 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.

Acting Chairman Miller is confirmed for a one-on-one talk-show type interview June 17 at Railway Age’s Rail Insights Conference in Chicago.