Regulating the Railroads in Amtrak's America

You’re a gym teacher at a new school, in charge of 30 kids in a gym, on your first day at work. You can’t keep your eye on all of them at once. While you were helping a couple of kids improve their free throws at one end, you hear a shout at the other end of the gym; one kid knocked another down.

Scenario 1: You don’t know either kid at all, so you objectively ask the kids to all explain what happened. You wind up giving detention to the kid who knocked down the other one; there was no excuse for escalating their disagreement into violence.

Scenario 2: You don’t know the kid who got knocked down, but the guilty party is your son. You lecture him, but don’t give detention. You know him, after all, he had to have a reason. The other kid must’ve shoved him first, or started it by insulting him, or insulting his family, or even insulting you! It’s understandable. Your son should’ve known better, but it still doesn’t merit detention. Boys will be boys, after all.

A customer files a complaint: the sales rep was mean to her, and used ethnic slurs to intimidate her.

Scenario 1: The store manager, who has known the employee for a while, apologizes profusely, explaining that the employee was having a bad day, the computers were down, her aunt just died, her dog ate her homework… the store manager wants to do the right thing, but feels an obligation to take care of her own team when attacked by an outsider.

Scenario 2: The client takes it to the Better Business Bureau, where an investigator/arbiter – who’s never met either the customer or the salesman before – interviews everyone involved and makes an impartial judgment in the case.

In the interest of determining genuine blame, assigning fair punishment, and hopefully, proposing appropriate solutions for the future, which is usually the best approach: a manager who feels some kinship to the responsible party, or an independent third party, who can truly be impartial, making a judgment that’s independent of personal connections and concerns?

On Tuesday, May 12, 2015, a passenger train, operated by Amtrak and being driven by engineer Brandon Bostian, took a curve at 106 mph – a curve with a speed limit of 50 mph – and derailed in Philadelphia, killing at least seven and sending over 200 to the hospital.

The driver voluntarily took a drug and alcohol test, and – so far – there is no indication that any health impairment (such as a heart attack) could have been responsible. Either he drove the train at this accelerated speed on purpose or by accident, but either way, the speed is credited as the reason for the crash.

The government must now decide what to do. Who accepts full blame? The man, his employer, his industry? What happens when the courts prosecute the guilty – as they likely will – and when the civil system starts processing the hundreds of certain lawsuits?

Whose side will the local and national political class be on? On the side of the injured, on the side of the engineer, on the side of his employer, on the side of the industry? Perhaps on the side of a political theory – for there are many political theories at the heart of this story too.

In Article 1, Section 8, the federal government is chartered to develop and maintain a system of post roads – not every road in America, but the interstate road system. While the modern railroad came along after the Constitution was written, the document was flexible enough to provide for it.

Article 1, Section 7 provides for regulating commerce among the several states; the federal government can therefore regulate a private railroad company that operates across multiple states. If the several states involved disagree on – for example – training standards for engineers, or system failsafes for safety, or automation requirements, the Commerce Clause would give the federal government adequate standing to issue a regulation on the matter.

Article 1, Section 8 also provides for the establishment of tribunals (courts) inferior to the Supreme Court, and of course the entire federal judiciary is covered in Article 3… so if any federal crimes are committed, or any federal cases are brought that would be impossible or illogical for the state courts to handle, then the federal court system will handle those cases. And there will be many.

So, without a doubt, the federal government has a role – limited, but certain, in this event.

Part of our problem today, as we fortunate souls who weren’t in the wreckage of this disaster are able to thoughtfully consider from a distance, is that there is an incredible conflict of interest at the heart of this crisis.

Almost immediately, as the crash hit the news cycle, the Resident of the White House politicized the issue, declaring that the crash proves the evil of the Republicans, their wanton disregard for human life being shown in their callous underfunding of Amtrak.

Never mind that the crash was caused by a single driver exceeding the speed limit by more than double. More money might buy more trains, more employees, more signs, more track maintenance, more advertising – it may indeed do many things, both good and bad, to affect the world of northeastern United States passenger rail. But more money wouldn’t have prevented this crash, unless somebody possessing a wad of cash had been standing in the engine at the time, offering Mr. Bostian a bribe to slow down, and met his price in time.

Money is an issue in many aspects of public life – perhaps even most, in some way – but surprisingly, principally, not in this one. This was – according to the best information available at this writing, anyway - just the age-old issue of a driver with a lead foot, at the very worst possible time.

It might be an instructive moment, if the federal government were a disinterested player, as the Founding Fathers intended it to be. On May 12, 1787, the delegates were just beginning to arrive in Philadelphia to frame the Constitution. They hadn’t yet started to debate, but they were, even then, beginning to meet in local Philadelphia pubs to discuss the right size and role and function of the federal government.

The Framers who started rolling into town on that long-ago May 12 envisioned a tiny government, present to arbitrate disputes between states and arguments about commerce like this. They didn’t envision a passenger train, but if they were presented these issues, they would have pictured Congress being concerned for public safety, and setting up some framework for the states and the railroads to cooperate in speed rules and maintenance schedules and training.

Those Framers would never have dreamed that the largest passenger rail company in America – one that issues ride tickets to thirty million passenger trips per year – would be owned and managed by the tiny government they were designing. They never dreamed that this would become a political issue – that Congress and the President (offices they had not yet begun to flesh out, on that distant May 12) would be battling over which profitable lanes deserved more funding, which unprofitable lanes ought to be shut down, and whether or not more money could possibly have translated into greater safety for the riders and their community.

Today, we have a situation in which the federal government, with its right hand, regulates Amtrak as if it were just another private enterprise… while the federal government, with its left hand, owns and operates Amtrak as its board of directors.

At a time when we desperately need a disinterested federal government to consider what safety rules are appropriate, to determine what standards to hold train engineers to, the federal government is occupying nearly every seat in the room.

A federal employee (the engineer) was apparently carelessly commanding a federal vehicle (the train) on federal land (the railway), jeopardizing and in fact injuring or killing hundreds of federal customers (the passengers). When the court cases arise, the federal government will administer them.

How will a federal court be impartial when the defendant is another federal entity and the plaintiffs are all the voters on whom the federal government depends for both tax dollars and jobs?

The federal government cannot be an impartial manager, or impartial arbitrator, in the aftermath of this nightmare. It can try to learn from the nightmare – if it can resist the politicization that has filled the airwaves for days – but it’s hard.

Airplanes have at least two pilots in the cockpit when they’re flying hundreds of passengers in the air, but that’s a case of the Federal Aviation Administration regulating the private airlines. The FAA doesn’t have to let the concern about the salary of a second pilot stand in the way of a wise and cautious rule.

But where passenger rail is concerned, our government occupies both sides of the table. The same government considering the idea of mandating two drivers on a passenger train must also consider whether that added salary on some lines will require them to close off other lines, leaving customers without service, perhaps offending voters.

We can hope for wisdom from Washington, but our hopes will be dashed, again and again, because we ask the impossible. We enshrine a built-in conflict of interest… no, a stack of conflicts of interest, piled high, to a level of 30 million fares a year and 21,000 miles of track.

That’s a lot of conflicts of interest. No wonder things go wrong. No wonder decisions get postponed.

As with so many of our problems today, the solutions begin by looking back in time, and taking the advice of our Founding Fathers.

Amtrak could be profitable in some lanes – and with innovative, entrepreneurial management, perhaps it could be profitable in many more. But we must begin by eliminating the inherent conflicts of interest – leaving the dangerous Philadelphia of today and returning to the visionary Philadelphia of 1787. It won’t solve every problem, but at least it will ensure that every participant has his own obligation clear, rather than being torn in two or three by self-contradictory responsibilities.

Privatize Amtrak, and help return American government to its far more efficient, Constitutionally limited size and scope again.

John F. Di Leo is a Customs broker and trade compliance trainer. A former county chairman of the Milwaukee County Republican Party, he now lives in Chicagoland and has been a recovering politician for eighteen years.

Permission is hereby granted to forward freely, provided it is uncut and the IR URL and byline are included. Follow John F. Di Leo on Facebook and LinkedIn, or on Twitter at @johnfdileo, or on his own website at www.JohnFDiLeo.com.

This is interesting - second time today I've heard within reasoned discourse the call to "privatize" Amtrak. The question that then begs to be asked is "Why was it ever handed over to the government in 1971 in the first place"?

The answer to that is easy - private railroads at the time could barely afford to offer scheduled service and standards were dropping fast. No private railroad has ever made money at intercity rail travel since the turn of the 20th Century, but they were always able to keep it going by subsidizing with their freight hauling. But autos, the interstate highway system, and cheap air fare sounded the final death knell for long distance trains.

Railroads are incredibly efficient at hauling large quantities of bulk material long distances quickly. Efficient at intercity rail travel they ain't, except for certain city pairs and corridors.

I like the idea of getting the gov't out of the business of running a major transportation system and let the free market and innovation decide what part of rail travel survives as a profitable business.

” No private railroad has ever made money at intercity rail travel since the turn of the 20th Century”

Widespread passenger rail remained viable up through the end of WWII.

After that it lost its customer base due to increasing automobile ownership, the vast expansion of paved highways, and the advent of passenger airline service.

Highways and airports benefited from preferential tax treatment- they are mostly government subsidized, whereas RR tracks are private and are taxed AFAIK.

In the early 20th century intercity tracks were built to handle passenger trains at speeds of up to 120 mph. It’s expensive to maintain roadbed that can handle those speeds and freight traffic doesn’t need it. So when passenger traffic dwindled railroads couldn’t justify the expense.

It’s a shame we no longer have the grand central stations in our big cities and high speed trains travelling between them. But like the massive steam locomotives that pulled them their time has gone.

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