Congress should make WMATA unconstitutional, says a local business organization, unless DC, Maryland, and Virginia make changes to the agency. These could include smaller board of only transit experts instead of elected leaders, no arbitration for labor contracts, and a dedicated funding source.

Photo by Ben Schumin on Wikipedia, CC BY-SA 2.5.

The idea comes from the Federal City Council, an organization of mostly business leaders and some other prominent civic individuals in Washington. Highly-respected former DC mayor Anthony Williams is its executive director.

Its chairman, Robert Flanagan of Clark Enterprises, and vice-chairman, W. Edward Walter of Host Hotels and Resorts, signed an op-ed in the Washington Post on Sunday. They suggest Congress withdraw its consent to the WMATA compact, the interstate agreement between DC, Maryland, and Virginia which established Metro — that is, unless the three step up and make changes.

The US Constitution (Article I, Section 10) requires Congress to approve any “Agreement or Compact” between states, like the WMATA compact. The op-ed says Congress could withdraw that consent and instead take over WMATA directly. Some recently suggested a federal takeover as the only way out of the predicament.

But the Federal City Council is suggesting an actual federal takeover as a step of last resort. Instead, Congress could threaten that step (as some members did with this bill regarding the Delaware River Port Authority, an interstate compact between Pennsylvania and New Jersey). Any change to the compact requires DC, Maryland, and Virginia to pass identical legislation (and then Congress to agree).

What would this mean? Would Congress’s involvement make Metro better, or worse? It’s clear that Metro really needs something to change — right now, it faces a nearly impossible short-term budget crunch and many long-term challenges without much end in sight.

Photo by Ted Eytan on Flickr.

What could change?

The op-ed lists some proposals for changing the compact, which I’ve reformatted into a list for ease of reference:

  1. “abolish the existing board and reestablish a smaller board using criteria based on experience and expertise in transit or logistics”
  2. “redefine the role of the board and limit its focus to the most critical issues facing Metro”
  3. “finalize the establishment of a federally compliant Metro Safety Commission”
  4. “outline a process for future compact revisions”
  5. “remove the mandatory-binding-arbitration provision associated with union contract negotiations”
  6. “require the jurisdictions to collectively address their commitment to provide dedicated funding for WMATA”
  7. provide “additional funding from the federal government ... with the achievement of both cost accountability and funding parameters as thresholds”

When evaluating this policy, we should ask the following questions:

First, would these changes fix Metro’s problems?

Second, do we need Congress? Are these changes achievable without federal involvement, or would they not happen otherwise?

Third, is Congress likely to agree to impose these changes?

Fourth, would Congress impose other requirements that are detrimental to Metro?

Fifth, is this a legally valid approach?

Let’s take them one by one.

1. Would these changes fix Metro’s problems?

Governance changes make up the first two: (a) “abolish the existing board and reestablish a smaller board using criteria based on experience and expertise in transit or logistics” and (b) “redefine the role of the board and limit its focus to the most critical issues facing Metro.”

The current WMATA board has four members from each of DC, Maryland, Virginia, and the federal government, all appointed in various ways. Some are elected officials (most in Virginia, none in Maryland); some are transit experts; some have other skills or perhaps not really any relevant experience at all.

It’s widely believed that the board is too large (especially after it was expanded to add the federal members in 2009). And certainly some members have not brought much value to the board. It’s worth noting that some elected officials have been effective and others ineffective; the same goes for expert members. Tom Downs and Mort Downey, both transit experts with long and notable resumes in the field, chaired the board during the Sarles era when the system decayed without us knowing about it, for example.

There has been much electronic ink spilled over the board’s composition, and much more will in the future if this plan moves forward. I’m open to board changes — at this point, WMATA’s problems are so dire that we need significant change — but it’s important to understand what, exactly, the change is meant to achieve. Governance doesn’t fix anything on its own, though it can lay the groundwork.

The current board has been very hands off with Paul Wiedefeld, letting him make most decisions. The board certainly should continue to be involved in decisions about budget, fare increases, and service cuts. Most of the current board debates are about those issues.

The value of a board of just transit experts is that it might waste less time learning the basics and could focus on the key issues, and hopefully provide effective oversight of Metro. The fear is that it would do so without listening to riders and lack the political connections to local jurisdictions. Right now, Metro depends on local governments for much of its money; defenders of elected officials say having board members who are involved in those budget process ensures Metro’s needs are not ignored.

Safety: (c) “finalize the establishment of a federally compliant Metro Safety Commission” is not as controversial. Leaders in all localities agree that Metro needs a new safety oversight office. They have said they plan to get this done in early 2017, when the Maryland and Virginia legislatures are meeting.

Amendments: (d) “outline a process for future compact revisions” — I’m not sure what this one means. I am not aware of a way to change an interstate compact other than the current one, where signatories agree on a change and Congress gives its consent. I’ve asked the Federal City Council to elaborate.

Arbitration: (e) “remove the mandatory-binding-arbitration provision associated with union contract negotiations” is a key debate. Metro’s unions can’t strike, but instead, arbitrators resolve any contract dispute. In a 2011 contract negotiation, the arbitrator awarded 3% per year raises. WMATA said it couldn’t afford that cost without raising fares; a judge ruled that didn’t matter.

Some have called for a return to the model where strikes, rather than arbitration, resolve these disputes. It could be more disruptive, but it would force both sides to essentially make their case more publicly and fight it out. Today, local leaders and WMATA officials basically consider labor costs a factor they can’t control at all.

Labor relations is a tough issue. On the one hand, unions were a strong force for building a strong middle class in the mid-20th Century, and riders want skilled workers who know how to do their jobs. On the other, sometimes inflexible work rules, in particular, hamstring organizations. And Metro is competing against other travel modes that don’t involve unionized workers (or workers at all — if you drive, walk, or bike, you’re your own worker), so it can only give so much.

Dedicated funding: (f) “require the jurisdictions to collectively address their commitment to provide dedicated funding for WMATA.” Leaders including board chairman Jack Evans, DC mayor Muriel Bowser, leaders at the Council of Governments, and the Board of Trade have been trying to organize for dedicated funding. So far, the reception in Maryland and Virginia has been mixed, at best.

Finally, (g) “additional funding from the federal government” would of course be fantastic; the question is, is it possible?

Photo by M.V. Jantzen on Flickr.

2. Do we need Congress?

Congress’ influence may be necessary to push a regional funding approach, item (f). We don’t know for sure; the campaign for that has just gotten going. Perhaps an organized and sustained effort to sign up local business, civic, religious, and other leaders; get state, county, and city candidates on the record; and make the policy case in detail could succeed. Congress’ pressure could speed that up, if Congress wants to do it.

The same goes for the governance changes, (a) and (b). DC, Maryland, and Virginia could change the compact. As above, I’m not yet persuaded that will fix the problems, but it’s something to continue to discuss.

We don’t need Congress to set up the safety commission, (c). We absolutely need it to get federal funding (g), but that could happen with or without compact changes.

Finally, removing arbitration, (e), is probably only going to happen with Congress. DC and Maryland, in particular, are unlikely to pass laws that eliminate a process which is currently quite favorable to labor.

3. Is Congress likely to agree to impose these changes?

A lot depends on who’s in charge of the relevant committees in Congress. It’s likely the Federal City Council has already been talking to some members of Congress.

Given the Republican control, support for (e), removing binding arbitration, is almost certain.

Many GOP members have taken a firm stance against any new taxes. A requirement that DC, Maryland, and Virginia provide a dedicated funding source would require some kind of tax, though not a federal one. Does that run afoul of their anti-tax pledges?

Would Congress provide any federal money? It seems a long shot, but perhaps in combination with some other of these provisions that they find more appealing, maybe there’s a chance. Or maybe not.

Photo by angela n. on Flickr.

4. Would Congress impose other requirements that are detrimental to Metro?

The biggest question is whether getting Congress involved is playing with fire. Except the filibuster in the Senate (and that could even disappear), Democrats control no chamber of Congress, nor the White House, and won’t be able to stop provisions unacceptable to them. If your primary goal is changing the labor relationship, maybe that’s a positive, but what else?

Could certain members of Congress who have campaigned against cities, against coastal elites, and in particular against Washington, add their own ideas for changing Metro?

Could any of these happen?

  • Congress insists that Metro run less service and focus just on the most profitable service. Most service outside peak goes away and Metro becomes more like a commuter rail; regional buses are substantially cut and local jurisdictions take on more bus service.
  • Congress requires Metro to immediately sell some of its property, or requires it to immediately cover unused property in parking spaces, or some combination. Joint development becomes impossible; TOD becomes a far lower priority.
  • The formula which allocates costs between DC, Maryland, and Virginia is changed to be much more favorable to Virginia, which has more Republicans in Congress, at the expense of Maryland and/or DC.
  • The funding formula is changed to benefit exurban riders (with more Republican voters) to the detriment of the (more Democratic) core jurisdictions, such as a flat fare or a ban on parking charges.
  • Congress just prohibits a union at Metro entirely.

Hopefully none would happen; none of these would be a smart move, even for a GOP representative. They would kill Metro outright or make its problems worse by damaging its regional support. And if Congress wanted to kill Metro entirely, it could simply do that regardless. (So if you are a staffer for a GOP member of Congress, don’t get any ideas!)

But it seems that the Federal City Council is really hoping the threat of Congressional action would spur DC, Maryland, and Virginia to take steps that they’re not all otherwise willing to do to save Metro (whatever the consensus might ultimately be on which those are).

5. Is this a legally valid approach?

One other question is whether Congress can even legally withdraw its consent to an interstate compact. However, Ben Ross noticed a legal opinion that Congress can’t actually do this:

Emeka Moneme of the Federal City Council said that their lawyers have given thought to this, and believe the case law and past experiences (such as the Delaware River one above) lead them to see it as a viable approach.

Plus, while we can’t know which side the Supreme Court might ultimately take if it ever came to a lawsuit, Congress could impose its will in other ways as well (like with funding). Therefore, Congressional involvement is not an option to dismiss outright.

What do you think of the Federal City Council’s proposals?