Sixth in a Series: What Congress Can Do—If It’s Willing

Written by David Peter Alan, Contributing Editor
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On May 24, Amtrak President William J. Flynn wrote to Vice President Michael Pence (in his capacity as President of the Senate) and House Speaker Nancy Pelosi, demanding a supplemental appropriation of $1.475 billion, and threatening to cut service on every long-distance (L-D) train (except the Auto Train, which is only available for travelers with a motor vehicle) from daily operation to only three departures per week. Most of the reductions are in place as of this Oct. 5 posting, although Amtrak cut service between New York and Florida in half on July 6.

To make matters worse, Flynn did not promise that the trains would keep running every day, or that daily service on both Florida trains would be restored, even if Congress gives Amtrak the money he demanded. Congress, especially the Senate, has not yet acted, so Amtrak is taking steps to implement Flynn’s threats.

Amtrak photo

Flynn blamed reduced ridership due to the COVID-19 virus—a questionable assertion, since Congress has already given Amtrak $1.02 billion in the CARES Act. Earlier in this series, we looked at the negative economic results of service cuts like the ones that Amtrak has threatened to implement, examined the possibility that Amtrak’s desire to slash L-D service is based on ideological grounds rather than for economic reasons; and argued that the conditions Amtrak set for restoring L-D trains to daily operation cannot reasonably be met.

Just last fall, Amtrak issued five-year performance projections that did not contemplate slashing the frequencies of L-D trains to only 43% of current level.

Download Amtrak Five-Year Service Line Plans:

That report covers fiscal years 2020-25 (FY2020 year began Oct. 1, 2019), and the ridership projections (at 146-51) for the L-D trains did not change significantly between FY2019 and each of the succeeding five yearly forecasts. The content of that document shows that Amtrak was not contemplating slashing service to three times a week when the report was issued last fall.

As with a medical condition, there are both acute and chronic aspects to Amtrak’s current problems, which only Congress has the authority to solve. The chronic problems are caused by the undue influence of politics in Amtrak’s decision-making, lack of commitment by Amtrak to the riding public, lack of a strong public-service mandate that Amtrak must take seriously, and perhaps a conflicting loyalty on Amtrak’s part to a competing mode of transportation: airlines. This article will explore the need for long-term reform and how that need has become more urgent over time.

For now, the situation is acute. There is a proposal working its way through Congress that would give Amtrak’s managers an excuse to avoid maintaining daily service, because it does not reach the level of a direct and unambiguous order to keep the trains running every day. Worse yet, it also fails to override a prior statutory provision that gives Amtrak enough “wiggle room” to get around any purported requirement to keep the service running as often as it did before July 6. We explored that issue in the previous article in this series.

If Congress does not unite, at least enough to save daily operation, it could spell trouble not only for the L-D trains, but maybe for the Northeast Corridor (NEC) as well. Like most public transportation around the world, Amtrak needs government support to keep going, because the farebox alone does not bring in enough revenue. Congress has been willing to keep Amtrak going through an understanding between its members that constituents do not want to lose their trains. Members from the Northeast are willing to authorize enough money to keep a few L-D trains running, while members from elsewhere in the country authorize enough to keep the NEC and its branches going, too. If the constituents between the coasts (excluding in and around Chicago) lose the convenience of taking the train any day they wish, they might punish their member of Congress at the polls for subjecting them to such inconvenience, and that inconvenience began about one month before Election Day. That could spell the end of support for the NEC from elsewhere in the country, which in turn could interfere with the eventual implementation of costly NEC-related programs.

Siemens ACS-64 hauling a Northeast Regional Train on the “New Jersey Raceway” portion of the NEC. Amtrak photo

There is another problem, and it is structural. It concerns 49 U.S.C. §24706(b)(1)(A), which allows Amtrak to discontinue service at the beginning of a fiscal year, if the appropriation for such service is made before the prior fiscal year is over, but also with no provision for keeping the train or trains at issue running temporarily while Congress gets its act together and comes up with the money. It even requires Congress to authorize the money more than 90 days in advance of the end of the prior fiscal year, or before July 1, before taking a break for the Fourth of July. With a provision like that, it appears that Amtrak is getting away with showing Congress “who’s boss.” That means it is up to Congress to repeal that blatant provision. There seems to be no time like the present to do so.

That is only an example, though. We wonder who wrote these provisions, and only one name makes sense. It is Stephen Gardner, now Chief Operating and Commercial Officer. I met him many years ago, doing “Days on the Hill” as an advocate. He is a very able, experienced and competent political operative who has worked for some of the most stalwart Democrats in Congress. Gardner’s bio on Amtrak’s website says: “Prior to Amtrak, Stephen worked for the Commerce, Science and Transportation Subcommittee on Surface Transportation & Merchant Marine Infrastructure, Safety and Security. In this capacity, he directed all legislative and oversight activities related to the safety, security, infrastructure and operations of railroads, motor carriers, pipelines and hazardous materials transportation, including overseeing all related federal agencies. Prior to this position, Stephen served as Legislative Assistant for Transportation for Senator Tom Carper and Congressman Bob Clement.” So we know that Gardner knows how to draft legislation that would favor Amtrak’s interests.

It is understandable that a long-standing political operative from the ranks of the Democrats would not be selected for the top job at Amtrak in a Republican Administration, but that could change if Joe Biden is elected President. In the meantime, if a genuine majority of the members of both houses of Congress want a truly national Amtrak network (which includes the NEC, the state-supported corridors and trains that run every day elsewhere), there is not much time left for them to prove it.

The House took a step in the right direction on June 26 with a “Sense of Congress Resolution” presented by Rep. Nancy Kaptur (D-Ohio) as an amendment to Bill H.R. 2 (a major transportation appropriations bill), after p. 1032, line 19, as §9221. Clause (a)(3) states (at 1, lines 13-19): “Amtrak has requested additional funds to help it respond to the continued loss of passenger demand while also announcing plans to permanently cut 20% of its workforce, which could hinder its ability to serve the Amtrak national passenger rail system, including its long-distance routes, now and in the future.”

After more factual recitations, Clause 6 (at 2, lines 9-16) comes to the point: “If the service disruptions are implemented, the passengers served by these long-distance trains would be disconnected from a critical transportation option, and these communities would lose important economic contributions generated by this service.”

Amtrak Blue Water. Amtrak photo

These cuts would also impact the lives of Amtrak employees whose work contributes to the operation of these trains. The amendment continued in Clause 7 (Id. at lines 17-20): “Amtrak has not provided Congress, the public at large, or its workforce, sufficient notice or explanation of its plan to restore service to communities served by long-distance routes.”

Amtrak photo

It is commendable that the House took such a step, but it is not a statute, at least not yet. It does not have the force of law, and Amtrak can ignore it. Do both houses of Congress have what it takes to tell Amtrak in a fully enforceable statute that Amtrak is required to keep running the trains at issue every day, and must restore the two Florida trains to daily operation? Time will tell, perhaps soon.

All of this may be reminiscent of the battles fought over Amtrak funding every few years. The stakes are higher this time, because Amtrak has already discontinued some service and has threatened to eliminate much more. Either Congress will make sure that Amtrak keeps running trains every day, or it will fail to do so. If it fails, Amtrak’s riders and employees will suffer. It’s as simple as that. What is not so simple is that, in this COVID-19 year of 2020, circumstances are changing very rapidly. Can Amtrak continue to serve the needs of the traveling public, both along the NEC and elsewhere in the nation, without major reform? I don’t believe so, and other commentators have gone even further.

Amtrak photo

Chicago advocate F.K. Plous is calling for a massive federal commitment to a greatly enhanced passenger train network, with more routes and more frequencies on each route, along with the infrastructure needed to support those trains and faster freight, too. Plous also says that merely “reforming Amtrak” is not enough (although he does not oppose it), that massive change is needed. “I would best describe Amtrak reform as a tourniquet applied to last only long enough to get the patient to a hospital and into emergency surgery followed by long-term rehab,” he said. In the shorter term, though, a reformed and more-transparent Amtrak could act as part of the pathway toward a solution that would ultimately improve our passenger and freight train networks.

Amtrak photo

In the meantime, things could get much worse if Congress does not act quickly. Millions of Americans who ride Amtrak’s L-D trains will lose much of their non-automobile mobility. Communities served by Amtrak trains but not by airlines will lose their relatively convenient link to the outside world. Residents and visitors alike will lose the freedom to choose the day on which to begin their journeys, while lack of connections could increase their travel time by 24, or even 48, hours. Having an Amtrak stop is good for a community’s economy, and much of that will be lost if Congress does not “stop Amtrak in its tracks” so to speak. The path for Congress is tricky, and failure to act could not only endanger the L-D trains, but the NEC and, perhaps, state-supported rail corridors, too.

It would not cost Amtrak much, and would even save money in the long run, if the trains run every day, but senior Amtrak management does not appear to care about that. We do not yet know if Congress does, at least enough to take action. A “clean” bill to authorize the money for Amtrak and require it to keep running the trains could probably pass, but Congress does not seem to work that way. If it does not enact a solution soon, though, the damage will be done. Sadly, it may be too late.

David Peter Alan is Chair of the Lackawanna Coalition, an independent non-profit organization that advocates for better service on the Morris & Essex (M&E) and Montclair-Boonton rail lines operated by New Jersey Transit, and on connecting transportation. In New Jersey, Alan is a long-time member and/or board member of the NJ Transit Senior Citizens and Disabled Residents Transportation Advisory Committee and Essex County Transportation Advisory Board. Nationally, he belongs to the Rail Users’ Network (RUN). Admitted to the New Jersey and New York Bars in 1981, he is a member of the U.S. Supreme Court Bar and a Registered Patent Attorney specializing in intellectual property and business law. Alan holds a B.S. in Biology from Massachusetts Institute of Technology (1970); an M.S. in Management Science (M.B.A.) from M.I.T. Sloan School of Management (1971); an M.Phil. from Columbia University (1976); and a J.D. from Rutgers Law School (1981). The opinions expressed here are his own.

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