Commentary

Is STB’s Primus in Rails’ Crosshairs?

Written by Frank N. Wilner, Capitol Hill Contributing Editor
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The STB’s statute allows Senate-confirmed members to remain in office a maximum of 12 months following expiration of their term. Robert Primus, whose first term expires Dec. 31, need not depart if not confirmed to a second five-year term this year. It is anticipated President Biden would renominate him if not.

The Senate Commerce Committee will hold a confirmation hearing Sept. 7 on President Biden’s nomination of Democrat Robert E. Primus to a second term on the Surface Transportation Board (STB). This is a preliminary step, requiring a subsequent vote among committee members whether to send the nomination forward to the entire Senate for consideration. The latter could be problematic, as will be explained.

Primus, a former congressional aide nominated by President Trump, was Senate confirmed in January 2021 to an abbreviated first term expiring Dec. 31, 2022, filling a vacant seat previously held by fellow Democrat Deb Miller—an Obama nominee not renominated by Trump. If Primus does not gain entire-Senate confirmation, he may continue serving for a maximum of 12 months in holdover status until Dec. 31, 2023, unless a successor is nominated (not anticipated) and Senate-confirmed during that holdover period.

As it is STB seats, not the holders, that carry expiration dates, it is not uncommon for seats to remain vacant for months or even years. Miller’s seat remained unfilled for two years. The agency’s statute provides that “a vacancy in the membership of the Board does not impair the right of the remaining members to exercise all of the powers of the Board.”

Primus, whose second term—if he is confirmed—would run five years through Dec. 31, 2027, is the swing vote on the five-member Democratic majority STB. That majority is led by Chairman Martin J. Oberman, who has taken an activist role on regulatory issues involving rail service, rates, competition and the common carrier obligation—a role less appreciated by railroads than shippers. It is not unconventional to suggest railroads would prefer Primus—out of an abundance of self-interest caution—not serve a second term and depart the agency on or before expiration of his Dec. 31, 2023, holdover period.

In fairness to Primus, there is no evidence he has been less than independent in his voting. In fact, on almost all issues before the Board, there have been 5-0 votes. And where there are split votes, Primus has not always followed Oberman’s lead, such as voting with Board Republicans in December 2021 to grant authority for construction of the environmentally sensitive 85-mile Uinta Basin Railway despite an 11-page dissent from Oberman.

Railroads take a longer and more parochial view of regulatory matters—although an attempt to deny Primus a second term will be accomplished sub rosa*, as are most special interest lobbying activities so as to provide plausible deniability if the effort fails.

Looking through the railroad prism, a Primus departure in 2023 could create a 2-2 vote deadlock among Board Democrats and Republicans—the latter assumed less anxious to support some of Oberman’s shipper-praised rhetoric, although it has yet to surface in formal decisions or rulemakings. Lost to many observers who merely follow Oberman speeches and media interviews is that Oberman’s bully pulpit so far has been used effectively to squeeze from railroads voluntary action, allowing the Board to remain on the sidelines.

Primus’ larger problem may be with CSX CEO James M. Foote, with whom he has a history of sorts. It dates to an April 2022 STB hearing (“Urgent Issues in Freight Rail Service”) during which Foote lost his situational awareness in reacting to a series of prickly questions by Primus—on service, employee furloughs and ceaseless chasing of a lower operating ratio—with less than cordial mannerisms and sarcastic responses.

It takes just one senator to stall confirmation of a Presidential nominee by placing a parliamentary hold. Railroads, all heavily invested in political contributions, have no shortage of Senate friends from whom to seek a parliamentary hold on Primus. To quote The Godfather’s Don Vito Corleone,Someday, and that day may never come, I will call upon you to do a service for me.”

“Someday, and that day may never come, I will call upon you to do a service for me.”

The longer view is that by engineering a continuing parliamentary hold on Primus to keep his nomination from a Senate floor vote—made easier if Republicans regain the Senate majority after November elections—Primus will be forced to step aside no later than Dec. 31, 2023.

While Oberman now is moving several troublesome—to railroads—decisions forward, final action may extend beyond Primus’ holdover year. And if the seat Primus now holds remains vacant another 12 months after Dec. 31, 2023—until Dec. 31, 2024—a Republican President, should one be elected, would nominate a Republican for the seat now held by Primus, as the STB political majority depends on the political party of the President.

Also, not to be ignored, Oberman’s seat expires Dec. 31, 2023, giving railroads two options: 1) bottle-up Oberman’s—if it occurs—renomination to a second term to effect the same result as bottling-up a Primus nomination; or, 2) count on a Republican President elected in November 2024 to name a Republican STB chairperson. STB chairpersons serve at the pleasure of the President and may be changed out at Presidential will (although they remain Board members through expiration of their term).

It’s complicated. It’s brutal. But that’s how the lobbying vocation functions, and that’s why the work of legislatures is compared to the making of sausage. It’s not personal—it’s strictly business.

As for other Board members, the term of Republican Patrick J. Fuchs expires Jan. 17, 2024; that of Democrat Karen J. Hedlund expires Dec. 31, 2025, and the term of Republican Michelle A. Schultz expires Jan. 11, 2026. Each may remain 12 additional months in holdover status unless a successor is nominated and Senate-confirmed. The STB’s statute limits members to two terms.

Frank N. Wilner

Railway Age Capitol Hill Contributing Editor Frank N. Wilner was formerly Assistant Vice President for Policy at the Association of American Railroads, a White House appointed (Bill Clinton) chief of staff at the Surface Transportation Board, and President of the STB’s bar association. Among his seven books is the soon to be published, “Railroads & Economic Regulation.”

*Happening or done in secret

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