Editorial: Phil Washington and Changing the Rules As We Go
March 31, 2023|Jeff Davis
Last weekend, Phil Washington, the longtime mass transit executive and current head of the Denver Airport, pulled his name from consideration as President Biden’s nominee to head the Federal Aviation Administration. Opposition by Sen. Ted Cruz (R-TX) had unexpectedly unified Republicans against his nomination and was causing Kyrsten Sinema (I-AZ) enough doubt that the process in committee had been halted and might never resume.
How did this happen? Cruz changed the rules (or, more precisely, how the Senate interprets the rules) and got away with it, that’s how. But he wasn’t the only one. Both parties were guilty of reversing the way that the Senate interprets the FAA’s organic law (section 106 of title 49, United States Code).
Senator Cruz decided to change the way that the Senate has interpreted section 106(c)(3)’s requirement that the FAA nominee “have experience in a field directly related to aviation.” Three previous times in the last 30 years, a President has nominated someone for the post who had approximately Phil Washington’s level of experience – only a year or two in aviation directly, but a lifetime in transportation policy and/or general managerial experience. These were Jane Garvey (1997), Marion Blakey (2002), and Michael Huerta (2012, though Huerta had slightly more experience, with two years as Deputy FAA Administrator, but no real aviation-specific experience before that).
After watching the harsh tone taken by Cruz and some of his fellow Republicans during Washington’s hearing, which featured a lot of “gotcha” questions relating to pilot-based trivia, it was interesting to go back and read the transcripts of the Garvey, Blakey and Huerta confirmation hearings (Garvey Blakey Huerta), which featured none of that. Garvey, a former FHWA Administrator with a bit of airport experience, and Blakey, a former NHTSA Administrator with a few months experience at the NTSB, got no negative feedback at all from the Commerce Committee or the Senate for the sin of not having had a lifetime of aviation safety specialization.
The Senate confirmed Garvey, Blakey, and Huerta to run the FAA by voice vote in each instance, with no real opposition. Neither Republicans nor Democrats in the Senate cared very much that the nominees lacked extensive career experience in aviation safety. But Ted Cruz managed to convince his Republican colleagues that, moving forward, such experience now has to be mandatory.
The fact that apparently all of the other Republicans on the Commerce Committee were backing Cruz’s play is noteworthy. In the past, most Commerce Republicans have worked with Democrats on a lot of these issues. (It’s a far cry from the days when old friends Dan Inouye (D-HI) and Ted Stevens (R-AK) would give each other veto authority over committee actions, but there are still a lot of Republicans on the panel who, temperamentally, prefer quiet cooperation to loud theatrics.)
How did Cruz convince all his GOP colleagues to back his play?
Some of this dates back to 2019, when President Trump nominated pilot and Delta safety chief Steven Dickson to run the FAA in the wake of the 737 MAX imbroglio. Dickson had a lifetime of aviation safety experience, but after his committee hearing in May 2019, at which ranking member Maria Cantwell (D-WA) said nice things about him, it came to light that a complaint had been filed against Dickson and others alleging improper punishment of an aviation safety whistleblower. And the complainant was one of Cantwell’s constituents.
Because the complaint was unresolved, Cantwell and some of the aviation unions were able to use it to convince all of the Democrats on Commerce to vote against Dickson in their July 2019 markup, and then all Democratic Senators who were present voted “no” on Dickson’s confirmation vote two weeks later. This wasn’t a change in rules or norms, but it was unusual.
Fast-forward four years, and few Senators remember the specifics, only that Democrats set the precedent of voting “no” en masse if there were any unresolved allegations against a FAA nominee. So Cruz was able to rely on the fact that the fallout from the Alex Villanueva versus Sheila Kuehl “L.A. County isn’t big enough for the two of us” fight over who had authority to investigate misconduct in the Sheriff’s Department still hasn’t been cleaned up.
So, even though the state DOJ quickly took the Sheriff’s investigation of the police misconduct board member (who had a side contract with L.A. Metro under Washington’s leadership) because the Sheriff was getting out of hand, the whole thing hasn’t been completely dismissed yet. This, no doubt, made it easier for Cruz to rally Republicans to his side, since Democrats had set the “vote no on anyone currently under any kind of investigation” precedent four years ago.
(It should be pointed out that there turned out to be a lot of fire behind the smoking Dickson accusation four years ago. A Labor Department administrative law judge issued a ruling in December 2020 that found in favor of the whistleblower. The judge found Dickson’s deposition testimony “less than credible…as [I] found many of his responses evasive…” and ordered that Delta pay the whistleblower $52,522 in back pay and $500,000 in compensatory damages. In March 2022, a DOL appeals board upheld the judgment against Delta but sent the compensatory damages award back for a re-hearing. Delta settled the case out of court in October 2022.)
Cruz wasn’t the only one trying to change the way that Senators interpret the law. Section 106(c)(2) requires that the FAA Administrator be “a civilian.” From the time that this law was enacted in 1958 all the way through 1992, the Senate and House interpreted this provision consistent with the statement of managers that accompanied the conference report on the 1958 bill, which said “he shall be a civilian in the strictest sense of the word. This, at the time he is nominated he may not be on the active or retired list of any regular component of the armed services…”
Phil Washington retired from the U.S. Army in 2000 after 24 years of service. He is on the retired list, and as part of that, receives a pension and other benefits. The reason it’s called a “list” is that, in theory, the Army retains the right to call the names on the list back into active service in times of grave crisis (though current regulations state that no one over 60 gets called back to active duty). In 1958, even the theoretical prospect that a civilian FAA Administrator might get recalled to active duty and given an order by the Defense Department was enough to spook the legislators who were creating a new civilian FAA to take over some airspace management from the Pentagon.
In the past, nominees with a military background either had to resign from the retired list (forfeiting their pension and benefits), or else Congress had to pass a George Marshall-style one-off law allowing a specific person to remain on the retired list and still serve as FAA Administrator. But no one with a lengthy military background had been nominated in over 40 years, so most people had forgotten about the issue.
Once people realized how strict the precedent was – which was after Washington was first nominated – Cruz and his House counterpart insisted that Congress interpret section 106(c)(2) the way they always had, consistent with the original legislative intent. After a whole lot of silence, Democrats eventually responded with a letter from the USDOT General Counsel using “textualist” analysis to say that (a) legislative intent doesn’t matter, only the dictionary definition of “civilian” matters, and that definition is not as strict, and (b) Congress was just wasting its time in the 1970s, 1970s, 1980s and 1990s passing those laws waiving section 106(b) for military retirees, because “those waivers were not necessary to make the nominees eligible to serve as FAA Administrator.”
It’s not surprising that an executive branch lawyer would take such an approach. Legislative intent exists to tie the hands of the executive branch, as well as the judicial branch, and constrain them to interpret the law the way Congress wanted it interpreted when they passed the law.
The people who are supposed to take legislative intent seriously are the legislators themselves, in the House and Senate.
Witness Joe Manchin (D-WV), currently raising six kinds of hell because the Biden Administration is not interpreting the electric vehicle tax credit language in the Inflation Reduction Act the way that Manchin, its author, intended it to be interpreted. Had Washington’s nomination gotten to the Senate floor, Cruz would undoubtedly have raised the “civilian” issue and tried to frame it as whether or not his Democratic colleagues believed in legislative intent at all. Some of them – even ones who otherwise found Phil Washington’s qualifications and character eminently acceptable – might have balked at having to reject the idea of legislative intent altogether.
Old precedents are gone, and new precedents set. We’ll see how long these new precedents last.
The opinions above are those of the author and do not necessarily reflect those of the Eno Center. Also, Phil Washington is a former member of the Eno Board of Directors and a valued participant in many Eno activities.