STB Wannabe on Promotional Tour

Written by Frank N. Wilner, Capitol Hill Contributing Editor
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Robert Primus. Photo courtesy WBUR

Is presumptive Surface Transportation Board (STB) nominee Robert Primus pulling a Reese H. Taylor Jr. redux and risking his chance for nomination or Senate confirmation?

In recent weeks, Primus has been on what appears a self-promotional tour, visiting with selected special interests having business before the STB—an action that could put him on thin ice as White House officials review paperwork submitted in advance of a formal nomination. Indeed, the Trump Administration does not favor those getting out in front of the President.

Former STB Chairman Daniel R. Elliott III, nominated by President Obama, told Railway Age, “I was told not to talk to anyone during this stage”—advice Primus himself told Railway Age he was given in mid-September when queried on leaks that he was being considered for nomination. In the past, other nominees have indicated receiving the same “keep quiet” advice while awaiting formal White House nomination.

The perception, of course, is that when a hopeful seeks early support for a nomination, never-naïve special interests sense opportunity to collect an IOU by being early with lobbying assistance. There is no indication Primus has made any promises.

Republican Taylor, as a reference point, who served as President Reagan’s chairman of STB predecessor Interstate Commerce Commission (ICC) from June 1981 to December 1985, nearly derailed his Senate confirmation by allowing himself to be in tow of a controversial public figure while awaiting his Senate confirmation.

In what he later admitted as bad form, Taylor was escorted about town on a promotional tour by Teamsters Union lobbyist Ed Wheeler—coincidentally, a son of Sen. Burton K. Wheeler (D-Mont.), who, during the 1940s, chaired the then-Senate Interstate Commerce Committee.

Not so coincidentally, Taylor’s nomination came at the time motor carriers were being deregulated, with the ICC the gatekeeper for approving new entry by non-union truckers.

Washington, of course, is a city of highly placed, observant and eager leakers. Understandably, The New York Times and Business Week magazine—alerted to the Wheeler-Taylor pas de deux—suggested Taylor was in league with the Teamsters, and a suspected impediment to the advancement of economic deregulation.

Events proved differently. Taylor was confirmed, but the perception held. In his subsequent, “Chairman Taylor’s Lessons from the School of Hard Knocks,” published by the ICC/STB bar association in 1993, Taylor expressly warned future regulatory agency nominees that “because perceptions count for so much in Washington—often to the extent that what you are perceived to be doing is more significant than what you are actually doing—making the right early impressions is vital.”

Yet despite precedent that presumptive White House nominees sit patiently and quietly awaiting—as a courtesy to the President—formal public announcement of nomination before accepting invitations to meet and greet always-eager stakeholders, Democrat Primus, age 49, has, according to multiple sources, expressly asked those with regulatory business before the STB for their lobbying support in his bid for the STB nomination.

Primus is no naïve Washington newcomer. He was chief of staff to former Rep. Michael Capuano (D-Mass.) when Capuano chaired the House Rail Subcommittee, and is now chief of staff to Rep. Nanette Diaz Barragan (D-Calif.). Capuano was election-defeated in 2018.

Within days of Railway Age reporting on Sept. 19 that Senate Minority Leader Charles E. (Chuck) Schumer (D-N.Y.) had recommended that President Trump nominate Primus to an STB seat, Primus began accepting invitations from STB stakeholders—even revealing he had met privately with BNSF’s chief legal officer, Roger Nober, a Republican and former STB chairman who now helps plan and implement BNSF’s regulatory agenda.

Primus also was quick to meet with the American Chemistry Council (ACC), an advocate for tougher railroad rate regulation even though its traffic, which too frequently goes “boom”—thus threatening railroad revenue adequacy—may not be paying its fully allocated costs, risks considered.

The conversation between Primus and Nober was not recorded for release, nor were Primus’ comments at a separate Oct. 3 invitation-only meeting with ACC members and other shipper representatives.

Actually, Primus couldn’t have discussed much of substance with Nober, the ACC or others whom he has been eager to court, as he has no discernable background in railroad economic issues.

But those stakeholders obtained opportunity for ex parte communication to push their special-interest agendas—something sitting STB members are prohibited from doing absent the presence of STB legal counsel, followed by a written public summary of matters discussed.

Although Primus’ previous boss, Capuano, was the senior Democrat on the House Rail Subcommittee, one Class I railroad official told Railway Age, “Capuano’s name hardly ever came up in staff meetings. He had minimal interest in our issues.”

This squares with a comment by former STB member and Democrat Deb Miller—to whose STB seat Primus hopes to ascend—that her only STB interaction with Capuano regarded “a transloading facility in his home district.” Primus also worked on the staff of the late Sen. Frank R. Lautenberg (D-N.J.), whose passion was Amtrak and the Northeast Corridor rather than freight rail regulatory issues.

Lack of prior involvement in railroad regulatory issues doesn’t disqualify Primus, age 49. The list of Senate-confirmed ICC and STB members lacking meaningful railroad or rail-shipper backgrounds numbers in the scores.

President Johnson nominated Texas broadcast executive Willard Deason, who was LBJ’s college roommate and later raised his famous beagle dogs, “Him” and “Her.” President George H. W. Bush nominated oil industry executive Jacob J. (Jake) Simmons, whose Oklahoma oil-patch family was close during the 1950s with the Bush-created Zapata Petroleum Co. President Clinton nominated Gus A. Owen, a prominent California Republican fundraiser and real estate developer lacking a formal high school education, and whose wife gained recognition from talk-show host Larry King for effective support in California of Clinton’s presidential bid.

In fact, a legislative attempt (H.R. 4308) in 1986 by Rep. Helen Delich Bentley (R-Md.) to create a “blue ribbon nominating commission” to recommend qualified nominees to the ICC failed congressional passage.

Primus’ potential nomination has acceptance from railroads and shippers, in large part because he would arrive at the STB with minimal, if any, parochial or partisan baggage.

For the same reason, Michelle A. Schultz, a 44-year-old Republican already nominated—but awaiting pairing with a Democrat so that the two names move simultaneously to the Senate floor for confirmation—has acceptance by railroads and shippers. As deputy general counsel for Southeast Pennsylvania Transportation Authority (SEPTA), her focus has been major capital projects and commuter rail regulation that is not subject to STB economic oversight.

If Primus does gain a White House nomination—and Senate confirmation along with Schultz—it could be January or later before the two are sworn in. Extensive background checks must be performed on Primus prior to formal nomination, and Senate business has slowed to a creep owing to extreme partisan bickering.

Although the 2015 Surface Transportation Board Reauthorization Act enlarged the STB from three to five Senate-confirmed members, the agency remains at three.

While Republican Patrick J. Fuchs, 30, was confirmed to one of the two new five-year-term seats in January 2019, along with Democrat Martin J. (Marty) Oberman, 74, who claimed the seat vacated by Democrat Elliott (expiring Dec. 31, 2023), the departures of Elliott and Democrat Debra L. (Deb) Miller kept the number of members at three. Primus hopes to take Miller’s former seat, which expires Dec. 31, 2022; Schultz would gain the second new seat, which expires five years from the date of her Senate confirmation.

Republican Chairman Ann Begeman, 55, is in her second and statutorily final term, which expires Dec. 31, 2020. In all cases, the statute permits one maximum 12-month holdover period if a successor has neither been Senate-confirmed nor gained a recess appointment.

Meanwhile, the Senate Appropriations Committee—owing to rail shipper lobbying—has included language in its report to the entire Senate (No. 116-109) on recommended STB funding for fiscal year 2020 that the White House “nominate the full complement of board members to the STB as soon as possible.” Recommended funding for the STB is the same $37.1 million appropriated the STB by Congress for fiscal year 2019.

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