Thursday’s Senate Commerce Committee confirmation hearing should have never happened. The National Transportation Safety Board (NTSB) nominee that appeared is meant to replace the illegally fired vice chair Alvin Brown, who is fighting his removal in the courts. Senate Democrats on the Commerce Committee had asked that the hearing not take place on the same day Chair Ted Cruz (R-TX) announced it.

But it wasn’t the NTSB nomination that dominated the questioning. It was the rising sense of alarm about whether the Surface Transportation Board (STB), an independent adjudicatory body, retains the independence to defend public, shipper, and national interests in deciding whether the Union Pacific/Norfolk Southern merger will be allowed to be consummated. Or, will this once-independent body be taking their cues from a pay-to-play White House where UP CEO Vena visits to flatter Trump and UP makes donations to the new White House Ballroom?A crisis of confidence in STB Senator Ben Ray Luján (D-NM), who sat in for Ranking member Maria Cantwell (D-WA), bookended the questioning for the Democrats, while rail champion Senator Tammy Baldwin (D-WI) hit hardest with a clear and deep understanding of the STB’s role and issues at stake. In the video above, Luján begins by asking about the controversial email leaked to, and made public by Solutionary Rail on Oct. 29 (more below). He presses the point that such politicized communications in a professional independent agency may be a violation of the Hatch Act. Then, he closes with the most important question of all: “How can the STB function effectively while subjected to political interference and coercion?”—establishing the dominant and most relevant theme of the hearing.

The excerpt below communicates the seriousness with which Senator Baldwin and others take the attacks on Surface Transportation Board independence.

Senator Baldwin and her staff confirmed the veracity of the leaked email that Solutionary Rail provided. At the confirmation hearing, the Senator confronted sitting STB Board Member Michelle Schultz, who is being nominated for a second term. Schultz had previously denied awareness of the partisan email. At the hearing she acknowledged it had been sent by STB Chair Fuchs and claimed that she hadn’t seen it until after her pre-hearing meeting with Baldwin. Her and others’ excuse for Fuchs was that the language may have been used across agencies and that he was just copying a partisan template. This excuse inflamed rather than assuaged concern that the professional staff at the STB were receiving signals of a partisan takeover.

Partisanship has no place in the STB if it is to effectively execute its role as an independent adjudicatory body. STB decisions impact the entire country. Neither railroads nor shippers nor passengers—nor the issues for which they require adjudication—are partisan in nature. And the professional staff seem to proudly transcend partisanship in the services they provide. Schultz’ fellow STB nominee Richard Kloster, facing questions from Senator Luján, appeared to have significant shortcomings in his understanding of basic STB procedures designed to protect the Board’s independence. For someone who has spent 40 years in the railroad industry, Kloster’s responses did not exactly instill confidence that he could withstand pressure from the White House. That could be by design.

Still, by comparison with Schultz, Kloster appeared almost stolid in his commitment to STB independence. When pressed by Senator Baldwin, Schultz refused to condemn the illegal firing of her “former colleague” STB Board Member Robert Primus. Senator Baldwin leaned in, asking whether board members should be removed if they do not conform to the wishes of the President. Schultz contradicted her own assertions that the STB is independent with the closing claim that she serves “at the pleasure of the President”. Senator Baldwin appeared appalled.It is clear why Board Member Schultz was so visibly uncomfortable throughout the hearing. Her responses illuminate the impossible bind of being subject to pressure from the White House while having to deny being under such pressure.

* Clearly, Congress needs to intervene so that the STB can do its job at this critical juncture.

* No one should be confirmed to the STB—nor the NTSB—until the independence of these agencies is restored and the illegally fired members reinstated.

* Congress also needs to affirm, clarify, and strengthen the authority of the Surface Transportation Board in the 2026 Surface Transportation Reauthorization.

In 2015, Senator John Thune (R-SD) championed the Surface Transportation Board Reauthorization Act to expand the Board from 3 to 5 members—and, as an affirmation of its independence from any single administration, to move it out from under the Department of Transportation. The 2026 Surface Transportation Reauthorization is a subject Solutionary Rail and the Reconnect America podcast will be covering at length. For now, help us build upon the over 400 emails sent to Congress supporting the reinstatement of Robert Primus, using the tool we’ve made available at SolutionaryRail.org/RestorePrimus. After sending emails to your members of Congress you will land at a page with spreadsheets for calling members of the relevant Senate and House committees. There’s also a link to a page for sharing whatever actions you’ve been able to take. Only together will we be able to restore and strengthen the Surface Transportation Board’s capacity to make sure US railroads serve Main Street, not just Wall Street.And now, for some transpartisan leadership, I leave you with Senator Tim Sheehy (R-MT). The only issue with this is that his question is either a test, or a misunderstanding of the STB. It doesn't speak well that neither nominee addressed this, i.e., that it is the Federal Railroad Administration (FRA) that regulates all rail safety issues. That aside, Sen. Sheehy and the joint letter submitted into the record is a breath of fresh air.

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