The White House announced yesterday that President Trump will soon be making two more nominations to the Amtrak Board of Directors. Although both the new nominees are Democrats, their nominations may result in several pending Republican nominees for the Amtrak Board being confirmed as well.

The President intends to nominate:

• Former Federal Railroad Administrator Sarah Feinberg. After a career as a Democratic political and communications staffer (and three years in the private sector at Bloomberg and Facebook from 2010-2013), Feinberg got into transportation as Secretary Ray LaHood’s second chief of staff in September 2013 (replacing LaHood’s aide of 22 years, Joan DeBoer), and then at the start the second Obama term she was moved over to be Acting FRA Administrator after the departure of Administrator Joe Szabo. She was confirmed by the Senate in October 2015 and served until the end of the Obama Administration. Since then, she relocated to New York and served on the MTA Board of Directors and is now the interim president of New York City Transit.
• Chris Koos (the mayor of Normal, Illinois, the college town where Illinois State University is located). Mayor since 2003, Koos also serves on the Advisory Board of Transportation for America and is owner-operator of a bicycle shop and a jogging supply store. (Sen. Richard Durbin (D-IL) sent out a press release indicating that he was responsible for Koos’s selection.)

The Amtrak Board is defined in statute at 49 U.S.C. §24302, which says the Board consists of two ex officio members – the current Secretary of Transportation, and the Amtrak President (as a non-voting member) – and “8 individuals appointed by the President of the United States, by and with the advice and consent of the Senate, with general business and financial experience, experience or qualifications in transportation, freight and passenger rail transportation, travel, hospitality, cruise line, or passenger air transportation businesses, or representatives of employees or users of passenger rail transportation or a State government.” The statute also provides that no more than five of the eight Presidentially appointed members can be from the same political party, and that the President shall consult with Congressional leaders when selecting those appointees, as well as try to balance geographical regions of the U.S. served by Amtrak.

The statute provides that the eight Presidentially appointed members shall serve terms of five years, but it also contains this unusual provision: “Such term may be extended until the individual’s successor is appointed and qualified.” As such, the only Presidentially appointed member currently serving a valid five-year term is Anthony Coscia, the chairman of the board, whose five-year term expires in December 2020. Five other members are currently serving as holdovers from terms which expired as long ago as June 2015.

Of the six Presidentially appointed members currently serving, Democrats hold a four-to-two majority, so even when Transportation Secretary Chao’s (or her designee’s) vote is added, Democrats still hold a majority.

White House press office announcements of new nominees don’t typically include information about who the nominee is to replace. But the official nomination paperwork transmitted by the President to the Senate does include such information. Here is how the official nomination of Joseph Gruters to the Board on March 2 was phrased: “Joseph Ryan Gruters, of Florida, to be a Director of the Amtrak Board of Directors for a term of five years, vice Albert DiClemente, term expired.” This tells us that Gruters is being nominated for a full five-year term and that Gruters (the chair of the Florida GOP) is to fill a seat being previously held by a Democrat (DiClemente).

President Trump currently has three Republican nominees to the Board pending in the Senate Commerce, Science and Transportation Committee – Gruters, Rick Dearborn (for Jeff Moreland’s expired GOP term), and Lynn Westmoreland for a vacancy created by the FAST Act in December 2015 and never filled. (A fourth GOP nominee, Todd Rokita, was nominated in May 2019 to fill the partial term vacated when Derek Kan (R) went to USDOT in early 2017, but Rokita was not re-nominated at the start of this session of Congress.)

For multi-member boards that have substantive jurisdiction (the FCC, CFTC, STB, etc.) and which have a statutory requirement that no more than a fixed number be from the same political party, the Senate has a long tradition of moving nominees through the process in bipartisan pairs. (Note that Michelle Schultz’s (Republican) nomination to fill one of the two vacancies on the Surface Transportation Board has been languishing on the Senate Executive Calendar since July 2019, and will almost certainly continue to wait there until a Democratic nominee is put forward to fill the other seat. And note how Patrick Fuchs (R) and Martin Oberman (D) were moved through the Senate as a matched pair to fill two other STB seats on January 2, 2019 (pp. 8054-8055).

(The other holdup to confirming Trump’s Amtrak nominees has been that Amtrak allies in the Senate don’t like the positions they have taken on Amtrak issues in the past, which means they won’t get the unanimous consent of the Senate on their own. And while the cloture process allows the Senate to confirm nominees these days with a simple majority vote, that process ties up a full day of Senate floor time per nominee, and so far, Majority Leader Mitch McConnell (R-KY) has preferred to fill the Senate’s time with confirming Article III judges who will serve life terms, not members to the Amtrak Board.)

The following table shows the current Amtrak Board of Directors membership and the pending nominees whose paperwork has been transmitted to the Senate (i.e. not Koos and Feinberg (yet) and not former nominee Rokita). We will update this chart when the White House transmits formal paperwork to the Senate that tells us which new nominee will fill which seat on the Board. (5/21/20 update: The White House transmitted the formal paperwork to the Senate today – Feinberg is to fill Burke’s seat and Koos is to fill Carper’s seat. The chart below has been updated.)