December 22, 2017

Yesterday, Senate Majority Leader Chuck Schumer (D-NY) again blocked the nomination of Ronald Batory to become the nation’s head safety regulator as Administrator of the Federal Railroad Administration.

Batory was unanimously approved by the Senate Commerce, Science and Transportation Committee in early August but has been blocked by Schumer and other New York and New Jersey members because, as they told the Wall Street Journal, they want assurances from the Trump Administration about the Administration’s commitment to a verbal agreement from President Obama to pay half of the cost of the Gateway Program of rail projects in those states. A 50 percent federal share of that program (including Amtrak money as federal money) could top $15 billion. The Trump Administration sent the opposite message on June 30 of this year, withdrawing from the Gateway Development Corporation.

Senate Commerce chairman John Thune (R-SD) and the Department of Transportation have been trying ever since to get Batory’s nomination through, but the behind-the-scenes objections from Schumer and the other NY/NJ Senators continued. Finally, yesterday afternoon, Thune went to the Senate floor and tried to elevate the profile of this dispute again:

Mr. Batory has over 45 years of experience in the railroad industry – in both management and operational positions – and he is a respected leader in driving organizational change and, most importantly, advancing safety improvements.  In fact, Railway Age called him non-controversial and said, “he’s the best-qualified person to be the Federal Railroad Administrator in a very long time, perhaps in the agency’s history.”

Yet despite his unanimous approval from the Committee, he has been blocked from assuming his leadership duties at this important safety regulatory agency.  The FRA has critical safety decisions to make on a daily basis, and the agency needs strong strategic direction and management on time-sensitive safety issues.  A Senior Advisor – Mr. Batory’s current role at the DOT – does not have the same legal authority or ability to lead an agency, as does a Senate-confirmed Administrator. 

It is time to stop hamstringing Mr. Batory and get him confirmed so that he can operate at full capacity.

Unfortunately, it appears that we will not be able to do that without once again engaging in the cloture process on a non-controversial nominee.  This takes up valuable floor time that could be spent on other priorities, yet it will undoubtedly still lead to him being confirmed by a large, bipartisan majority of the Senate. 

This pattern of obstruction, burning up a week or more of time to confirm two or three nominees who end up with overwhelming cloture and confirmation votes, must end.

Thune also sought to tie the Batory nomination to the role of the FRA Administrator in overseeing progress towards the positive train control (PTC) installation mandate, and thus to the recent Amtrak Cascades train derailment (albeit in a somewhat sensitive way):

The Batory nomination is also significant for another reason.  Earlier this week, we saw the terrible tragedy of the Amtrak Cascades 501 derailment in Washington.  Our heartfelt thoughts and prayers are with all of those affected, especially during this holiday season.

As the NTSB continues its ongoing investigation, we will learn more about the causes of this derailment and the measures that might have prevented it.  To be clear, the tragic events of this week were not caused by a vacancy at the helm of the FRA, but the Senate must act now to install a leader at this agency to advance any safety solutions and oversight found to be needed as a result of the accident. 

To date, much of the discussion surrounding this accident has been focused on positive train control or PTC.  While it is still early to know what, if any, impact PTC would have had on this accident, I could not agree more with the Democratic leader who earlier this week said “we need positive train control.”  He went on to say that “the federal Department of Transportation is not pushing federal PTC hard enough.”

If he truly believes DOT needs to do more, however, why is he, along with a few of his colleagues, standing in the way of Mr. Batory’s confirmation?  After all, Congress has tasked the FRA administrator with providing the oversight and strong push that will be needed to ensure railroads meet next year’s December 31, 2018, deadline for full PTC installation and training.

Thune also submitted letters from rail stakeholder groups and state DOTs in favor of the nomination (see the Record here), but at the end of his remarks, Thune asked unanimous consent to bring up the Batory nomination, Schumer simply said “I object” and walked off the Senate floor.

If Thune and Majority Leader Mitch McConnell (R-KY) decide to go the cloture route with Batory’s nomination in January, it seems unlikely that Schumer et al would be able to muster the 41 votes necessary to block Batory (the Democratic Senators from Washington State and Oregon, for example, would be put in a difficult position if asked to block the guy in charge of implementing the technology that could have prevented the fatal Cascades crash), and the Democratic members of the Commerce Committee have already gone on record in favor of the nomination. But, as Thune noted, it would take a couple of extra days to go through the cloture process, during which time the Senate cannot conduct any other business.

Senate Democrats are also playing hardball with some other Trump Administration nominees. Under clause 6 of Senate rule XXXI, at the end of a session of Congress, all nominees that have not been confirmed or rejected are automatically sent back to the White House and cannot be considered again by the Senate unless the President re-submits them. Congress doesn’t recess sine die any more between sessions because that might allow the President to go around the Senate and make recess appointments, so the First Session of the One Hundred and Fifteenth Congress won’t end until its Constitutional endpoint at 11:59:59 a.m. on January 3 – but the Senate won’t consider any business before then.

Normally, the Senate leadership tries to get a unanimous consent agreement to allow nominees to remain on the Senate calendar between the First Session and the Second Session of a Congress. But yesterday, Senators (mostly Democrats) objected to dozens of pending nominees, forcing their nominations to be returned to the President at 11:59:59 a.m. on January 3. A complete listing of those nominees who will be sent back starts on page 2 of the new Executive Calendar, and it includes Federal Highway Administration nominee Paul Trombino, Assistant Secretary of Transportation for Research and Technology nominee Diana Furchgott-Roth, and Amtrak Board of Directors nominee Lynn Westmoreland.

This saves the President the trouble of having to withdraw Trombino’s nomination since Trombino recently decided to withdraw from the process, but it will be up to the President whether or not to re-submit the Furchgott-Roth and Westmoreland nominations after the Second Session begins at noon on January 3. (We presume he will, but you never know.)