New Jersey Teacher Tenure Lawsuit Dismissed

Originally published in The American Prospect on May 5, 2017.
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Another legal effort to weaken teacher job protections through the courts has been dismissed, this time in the Garden State. On Wednesday afternoon, a New Jersey Superior Court judge tossed the latest case, ruling that the plaintiffs—six parents from Newark Public Schools—failed to prove that seniority-based layoffs harmed their students.

Partnership for Educational Justice (PEJ), a national education reform group that aims to challenge teacher job protections across the country, funded the New Jersey lawsuit. Originally filed in November, the case marked the third time PEJ has gone after tenure provisions. Their first case filed in New York in 2014, is currently before the state Supreme Court. In October, a Minnesota district judge dismissed PEJ’s second suit, filed there in 2016. That case has since been appealed.

A 2012 California lawsuit, the country’s first legal attempt to challenge teacher job protections, inspired PEJ’s litigation. Lawyers in that high-profile case, Vergara v. California, argued that the rules that help keep ineffective teachers in the classroom violated the equal protection clause of the state’s constitution. The problem, the attorneys argued, was even more serious given that poor and minority students are disproportionately likely to attend schools with bad teachers.

A Los Angeles County Superior Court judge ruled in favor of the plaintiffs in 2014, finding that five long-standing teacher job protections, including a two-year probationary period for new teachers and a layoff system based on how many years one’s been teaching, violated students’ constitutional right to an equal education.

However, in a unanimous 2016 decision, a three-judge panel on California’s Court of Appeals struck down the lower court ruling and the state Supreme Court declined to hear the case.

These decisions have not deterred PEJ leaders. But their other Vergara-style lawsuits have run into similar legal hurdles—namely, the plaintiffs have failed to prove that teacher tenure and seniority directly cause the problems that the plaintiffs say exist.

The California appeals court judges concluded that the plaintiffs “failed to establish that the challenged statutes violate equal protection, primarily because they did not show that the statutes inevitably cause a certain group of students to receive an education inferior to the education received by other students.”

Likewise in Minnesota, the district judge said that the plaintiffs failed to establish that they had been harmed in any way by the statutes, but even if they had, “because Plaintiffs’ alleged harms are not fairly traceable to the teacher tenure and the continuing contract provisions they challenge, a decision by the Court to strike those laws would not redress the harms.”

In the New Jersey case, the judge said that she does not “see any link other than speculation and conjecture between the LIFO statute and the denial of a thorough and efficient education to these twelve children.”

It is not yet clear whether the Newark plaintiffs will appeal Wednesday’s decision. Naomi Nix, a journalist with the education news website, The 74, reported that a lawyer for the plaintiffs said they may appeal the dismissal or replead the case.

“We are very pleased that the judge saw through this transparent attempt to undermine New Jersey’s seniority statute by making false claims and denigrating Newark’s dedicated educators,” said New Jersey Education Association (NJEA) President Wendell Steinhauer, in a statement. The NJEA, along with the American Federation of Teachers, had filed a motion to dismiss the suit.

David Sciarra, the executive director of the New Jersey-based Education Law Center, a legal advocacy organization, told The American Prospect that Newark’s State Superintendent Chris Cerf supported the plaintiffs in the case, claiming that state law tied his hands when cutting the district’s budget. “This is a huge distraction,” Sciarra argues. “Newark students don’t need more layoffs. They need Mr. Cerf to stand up and call on Governor Chris Christie to increase state funding so Newark can hire back the hundreds of teachers and support staff lost over past five years.”

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New Jersey Supreme Court Blocks Chris Christie’s Efforts to Bypass Teacher Union Contracts, Alter School Funding

Originally published in The American Prospect on February 2, 2017.
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New Jersey Governor Chris Christie’s post-election tribulations continue to pile up. In September, Christie’s administration petitioned the New Jersey Supreme Court to vacate a 2011 ruling that found his prior education funding cuts unconstitutional. The petition also requested authority to bypass teachers’ collective bargaining agreements and tenure laws. The outspoken Republican, a long-time foe of organized labor, claims that these employment rules, not school funding levels, squander already scarce dollars and harm students in low-income districts.

But Tuesday, New Jersey’s high court denied the Christie administration’s attempts to link tenure and collective bargaining to school funding. Long regarded as a national leader in progressive school finance, the Garden State’s funding formula is the result of three decades of state Supreme Court litigation: The Abbott v. Burkecases determined that in order for the state to provide a “thorough and efficient” education to every student, New Jersey must send additional funds to 31 disadvantaged school districts across the state. Christie argues that these monies have been wasted, pointing to the districts’ low test scores and graduation rates.

In his ruling, the chief justice, Stuart Rabner, noted that the Abbott cases did not cover tenure and collective bargaining and declined to “exercise original jurisdiction” on those areas. He also emphasized that the court was not “opin[ing] on the merits of the issues or arguments” when it came to the teacher employment rules.

David Sciarra, the lead Abbott counsel and executive director of the Education Law Center, a New Jersey legal advocacy group, praised the court’s decision. “Issues related to collective bargaining and teacher layoffs were never in the Abbott cases, which has been singularly focused on ensuring adequate funding and resources for students in New Jersey’s poorest schools,” he said in a statement.

The state teachers union has argued that Christie’s efforts were politically motivated from the start, since the administration filed its legal petition just as the high-profile Bridgegate trials were getting started. “The court’s thorough rejection of Governor Christie’s frivolous but costly legal action demonstrates that his political Hail Mary lacked any solid legal basis,” New Jersey Education Association president Wendell Steinhauer said in a statement. “It was simply another taxpayer-funded Christie boondoggle, designed to divert attention from his many political woes.”

NJEA’s Steinhauer also commended the court for declining to rule on collective bargaining agreements and tenure. Calling Christie’s efforts an “attempted power grab” the union president said, “The court was wise to realize, as the Legislature long has, that no governor or commissioner of education should be given that amount of unchecked authority.”

New academic studies also challenge Christie’s contention that it is wasteful to direct supplemental funding to poor school districts. A 2016 National Bureau of Economic Research paper compared student test scores in 26 states that altered their school funding formulas since 1990, usually in response to court-orders like Abbott, with 23 states that had not. Researchers found that funding reforms that increased dollars sent to low-income school districts improved achievement and outcomes for those students. Another recent study found that poor children in districts subject to funding court-orders attended school longer, and earned higher wages as adults, compared to poor students in districts that were not under court-order.

The state Supreme Court ruling marks a setback to Christie’s education agenda. The governor shocked the nation this past summer when he announced his intention to upend his state’s school funding formula—declaring “no child in this state is worth more state aid than another.” Rather than direct more money to the poor, urban districts that have high concentrations of low-income students, Christie proposed distributing the exact same amount of funding to every school district in New Jersey. Only that, he insisted, would be fair. If implemented, Christie’s plan would have had crippling impacts on certain communities. NJ Advance Media found that the governor’s proposal would reduce state aid to Camden, one of the poorest cities in the United States, by 78 percent, and 37 other districts would see funding reductions exceeding 50 percent.

But, Democratic lawmakers, who control both the General Assembly and the Senate, plan to negotiate a new school funding formula  and have already expressed opposition to Christie’s proposals.

Meanwhile, challenges to teacher employment statutes in New Jersey are not over. In November, six Newark parents filed a lawsuit challenging the constitutionality of the state’s “last in, first out” law, which requires teacher layoffs to be made exclusively on the basis of seniority. The plaintiffs say the current law violates students’ right to an education by ignoring individual teachers’ records when determining which teachers to let go.

The Newark parents’ lawsuit mirrors a California case, Vergara v. California, which argued that teacher tenure, seniority, and other employment rules violated the state’s constitutional responsibility to provide students with an equal education. The California plaintiffs won the that case in 2014. But in a unanimous 2016 decision, the California Court of Appeals struck down that ruling and the state Supreme Court declined to take up case. Similar lawsuits challenging teacher job protections have also been filed in New York and Minnesota.

There’s Still No Money In Sight for New Rail Tunnels Under the Hudson River. Blame Chris Christie.

Originally published in The American Prospect‘s Tapped blog on July 22, 2015.
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In 2010, New Jersey Governor Chris Christie cancelled a tremendously important rail tunnel project under the Hudson River that had been in the works for nearly 20 years; billions of dollars had already been saved up for it. The only tunnels that currently exist there were built more than 100 years ago, are incapable of handling projected ridership growth, and have suffered serious deterioration—especially after Hurricane Sandy. The new tunnels would have helped not only New Jersey commuters but also all passengers who travel along the Northeast Corridor between Boston and Washington, D.C.

Christie’s decision to cancel the tunnel project, motivated by a fear of raising his state’s extremely low gas tax and thereby risk jeopardizing his national political ambitions, was one of the most irresponsible and reckless of his career. He not only cancelled the project, but he also spent the money that had been saved up for it on other things—leaving riders with no tunnel, and no solid prospects for one in the future. (For more details, see my cover story on Christie’s cancellation.)

Though my report was published in January, five months later there had been, according to the New York Times, little progress made towards securing funding for Amtrak’s proposed alternative rail project, which has an estimated price tag of $16 billion. Peter M. Rogoff, the under secretary in the federal Transportation Department, had reportedly “pleaded with transportation officials from throughout the metropolitan area to pull together on a plan.”

Well, it looks like those pleas didn’t go very far. Just yesterday Politico reported that Obama’s transportation secretary, Anthony Foxx, expressed great frustration at the lack of regional leadership in taking steps towards building the new tunnels. He said the region’s failure to act is “almost criminal” and that building these tunnels is “perhaps one of the—if not the—most important project in the country right now that’s not happening.”

Amtrak has estimated that their two-tube rail tunnel project under the Hudson River could be built by 2025 if funds were appropriated immediately. Yet after months of urgent begging, still nobody’s coughing up the money. To make matters worse, Amtrak officials aren’t even sure if the existing tunnels can hold up for another decade due to their age and the damage they’ve sustained from Hurricane Sandy.

This is a serious, serious mess. And as this presidential campaign season drags on, don’t forget that it was Chris Christie who orchestrated the disaster.

Christie Blusters His Way Through CPAC Appearance

Originally published in The American Prospect on February 27, 2015.
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New Jersey Governor Chris Christie wasn’t going to let something like record-low approval ratings get him down as he took the stage Thursday afternoon at CPAC’s annual gathering in National Harbor, Maryland. Exuding that Sopranos-style confidence that’s earned him notoriety, Christie, sitting on the CPAC stage for an interview with conservative radio talk-show host Laura Ingraham,  dismissed the idea that, compared to other potential presidential candidates in the crowded Republican field, he’s not well-positioned to run for president. (A January survey conducted by Bloomberg Politics and the Des Moines Register showed Christie was the first choice candidate among just 4 percent of Iowa Republican caucus-goers.)

Asked by Ingraham if such numbers disturb him, Christie retorted, “Uh, is the election next week?”

He continued: “I’m not worried about what polls say 21 months before [the election],” going on to point out that he won gubernatorial races twice in a blue state when everyone thought it was initially impossible.

All right—it’s evident that Christie can hold his own through tough on-the-spot interviews questions, perhaps better than some of his competition—(think Scott Walker’s recent ‘gotcha’ gaffe). Perhaps that’s why he declined to make a speech to the CPAC crowd, preferring to do only the on-stage interview. (Other dignitaries and potential candidates delivered brief remarks, followed by an on-stage interview.) But it’s still not clear what distinguishes Christie from other more moderate Republicans like Jeb Bush.

“[I]f the elites in Washington, who make backroom deals” pick the Republican presidential nominee, then Jeb Bush “is definitely the front-runner,” Christie said. By contrast, if “the people of the United States,” looking for someone who they can actually connect with, pick the candidate, the governor said, then he will do just fine.

Meh. Though Christie likes to come off as your everyday dude, his anti-elitism shtick just doesn’t hold when one actually looks at his receipt stubs. For an ostensibly ordinary guy, the governor has a big habit of traveling lavishly, drinking fancy Champagne, and quietly dumping the expensive bills on the taxpayer. (In 2013, New Jersey residents paid over $10,000 for Christie to travel with his wife and aides to the New Orleans Super Bowl.)

It was the New York Times that first reported the story about Christie’s spending habits, and Christie made several digs,saying that he “doesn’t care at all” what the paper’s reporters have to say about him. “I’m still standing,” he boasted. He even joked that he gave up the New York Times for Lent.

In an attempt to please a crowd that wasn’t necessarily disposed to see him as a true conservative, Christie noted that he had vetoed funding “five times” for Planned Parenthood, and that among the people he thought should “sit down and shut up” were those in the White House.

Christie’s bluster has some appeal, but there’s only so long that he can use it to avoid owning up to some of his massive leadership failures. His state finances are out of control. New Jersey’s credit rating has been downgraded eight times on his watch. The state’s pension fund has lost billions of dollars. Just 37 percent of New Jersey voters have a favorable opinion of him. And, as I wrote in the winter issue of The American Prospect, he cancelled one of the most important and desperately needed infrastructure projects in the nation—a decision that threatens the safety of hundreds of thousands of New Jersey commuters.

It’s a tough record to run on.

Blind to the Future: Chris Christie and the Republican Default on Public Investment

Originally published in the Winter 2015 issue of The American Prospect.
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Some day not long from now, if you are traveling by rail in the Northeast, you may be stuck in a train waiting to enter a tunnel under the Hudson River between New York and New Jersey. Perhaps your grumbling seatmate curses Amtrak, New Jersey Transit, or politicians generally. But one leader in particular will deserve to be singled out on such occasions: Chris Christie, who, as governor of New Jersey in 2010, blocked a joint federal-state project to build a new passenger rail tunnel.

Today, few outside the New York metropolitan area know much about Governor Christie’s decision to veto the Access to the Region’s Core plan (ARC), a $9.8 billion project in the works for nearly 20 years that would have doubled cross-Hudson rail capacity, with a projected 2018 completion date. Christie gained notoriety for one Hudson River tie-up in September 2013, when his aides and allies closed traffic lanes at the George Washington Bridge as political retribution against a local Democratic official. But compared to “Bridgegate,” as that twisted tale came to be known, Christie’s veto of the new rail tunnel is a far more serious scandal. For the sake of short-term political gain, Christie sacrificed the long-term interests of his state and the nation. The story of the blocked tunnel is also evidence of a wider problem: Republican leaders’ refusal to deal with failing infrastructure for fear of raising taxes and antagonizing anti-tax groups on the right.

Transportation authorities have long agreed on the need for new rail tunnels under the Hudson River. Built more than 100 years ago, the two existing tunnels are inadequate to handle projected ridership growth and have suffered serious deterioration. Tunnel traffic already operates at 95 percent capacity during morning rush hour, with a train entering Midtown Manhattan from New Jersey every two minutes. As a result, the tunnels are the biggest choke point along the Northeast Corridor between Boston and Washington, D.C., limiting the potential for passenger rail to expand as the region’s population grows and congestion on the highways increases.

In October, Amtrak reported that the seawater that poured into the tunnels during Hurricane Sandy contained chlorides and sulfates that significantly damaged the concrete bench walls, the wiring in the signal, electrical, and mechanical systems, and the tracks themselves.

The tunnels’ age and deterioration also pose significant risks of disrupted travel in the near future. In October, Amtrak reported that the seawater that poured into the tunnels during Hurricane Sandy contained chlorides and sulfates that significantly damaged the concrete bench walls, the wiring in the signal, electrical, and mechanical systems, and the tracks themselves. Closing just one of the tunnels for repairs, however, would reduce tunnel traffic by a stunning 75 percent, since the remaining tunnel would have to accommodate trains running in both directions. No one knows for sure when that might become necessary.

Rail transportation between New Jersey and New York is vital to the economy of both states as well as the nation, not to mention the 160,000 passengers who ride trains through the tunnels every day, mostly to and from work. But in October 2010, without offering any alternative plan, Christie killed the ARC tunnel and used the $1.25 billion in state funds previously set aside for the project to plug a hole in his budget and avoid a tax increase. It was a move that served Christie’s presidential ambitions—as long as the public doesn’t understand just what he did and why it ought to disqualify him from national leadership.

The ARC of the Past

Construction of the ARC tunnel had already begun when Christie was elected governor in November 2009. The groundbreaking five months earlier was a rare moment of elation for transit advocates and policymakers who had been pushing for the project for nearly two decades. At the groundbreaking ceremony, Peter Rogoff, who had just been confirmed to lead the Federal Transit Administration (FTA), contrasted ARC with projects that previously had been “either debated to death or simply ignored.”

According to the Government Accountability Office, the project would have generated 44,000 permanent jobs as well as 5,700 construction jobs.

The new ARC tunnel would allow an additional 25 trains an hour to enter New York City and was projected to increase daily passenger trips between New Jersey and New York to 254,000. The tunnel’s economic benefits had long been documented. According to the Government Accountability Office, the project would have generated 44,000 permanent jobs as well as 5,700 construction jobs. Easy access to New York City, the region’s commercial hub, is critical to New Jersey’s economic growth. The Regional Plan Association, an urban research and advocacy organization for the New York metropolitan area, estimated that increased rail capacity would raise the value of homes within two miles of New Jersey train stations by a total of $18 billion, reducing pressure to raise property tax rates.

The costs of the ARC tunnel were to be split three ways. The federal government and the Port Authority of New York and New Jersey would each contribute $3 billion. (Jointly controlled by the two states, the Port Authority is a self-sustaining public authority, with revenues from its bridges, tunnels, airports, and marine terminals.) New Jersey would pay $2.7 billion since the tunnels were largely for New Jersey Transit riders and the state would reap sizable economic benefits. The federal contribution marked the largest funding commitment ever pledged for a transit project in the nation’s history.

When he became governor, Christie faced a choice. On the campaign trail, he had supported the ARC project and pledged to reduce taxes. But as governor, he would be unable to do both.

New Jersey’s dedicated Transportation Trust Fund was broke. The fund was designed in 1984 to finance roads, bridges, and other infrastructure projects by floating bonds that would be paid off with the proceeds of the state’s gasoline tax, tolls, and other earmarked revenue. But in 2010, New Jersey’s gas tax hadn’t been increased since the 1980s. At 14.5 cents per gallon, it was (and is) by far the lowest in the region. Pennsylvania’s gas tax, in contrast, is 41.8 cents per gallon, while New York’s is 50.5 cents. In 2009, New Jersey’s gas tax was 47th in a ranking from highest to lowest among the 50 states. (It is now 49th.)

Many had expected New Jersey to raise its gas tax to meet its obligations for the ARC tunnel and other transportation investments. But Christie was emphatically opposed. In January 2011, after killing the ARC tunnel, he declared, “With rising gas prices right before us, the idea of raising taxes in this economy is something that this administration simply will not do under any circumstances.”

At the time he killed the tunnel, Christie claimed that the project would force New Jerseyans to pay $2 billion to $5 billion in cost overruns. According to a 2012 study by the Government Accountability Office (GAO), however, the projected range of costs for the ARC project was effectively unchanged between the time Christie took office and when he canceled it. Federal and state officials had long said that costs might run from $9.5 billion to $12.4 billion. If costs did rise toward the higher figure, the GAO report concluded, there was no evidence that New Jersey would have to shoulder those overruns alone.

Despite bipartisan support for the tunnel, some criticized the design, which would take New Jersey Transit riders to a new station under Macy’s department store in Herald Square, a short walk from midtown’s Pennsylvania Station, the NJT trains’ current destination. The plan had been a compromise negotiated with state and city officials in New York.

fter Christie announced the cancellation, state and federal officials pressured him to reconsider, but he allowed only two weeks for further discussions. Federal representatives made several trips to New Jersey to try to work out a solution. Both New Jersey Transit and the FTA proposed ways to save the project, including trims to the project’s scope and alternative financing measures such as public-private partnerships. But Christie wouldn’t budge.

“Christie’s behavior was so rash, so hurried, and he was so unwilling to listen to other points of view, even from his own transit agency,” says Martin Robins, the initial ARC project director and director emeritus at the Alan M. Voorhees Transportation Center of Rutgers University.

Perhaps Christie was unwilling to listen because killing the ARC project had an additional advantage besides avoiding a gas tax increase. It also enabled him to redirect more than $3 billion that had already been put aside for the tunnel.

Diverting the Tunnel Money

In a commuter state like New Jersey, transportation spending is a hot political issue. Christie’s Democratic predecessor, Jon Corzine, had set off a political firestorm in 2008 when he tried to pass a plan that would have used dramatic increases in highway tolls over a 12-year period to cut the state’s $32 billion debt in half and pay for transportation improvements. Although the plan was defeated, Corzine did succeed in doubling tolls on the New Jersey Turnpike. While the revenue wasn’t enough to resolve the state’s long-term fiscal problems, it included $1.25 billion earmarked for the future ARC tunnel.

Christie took that money as well as $1.8 billion from the Port Authority’s ARC capital fund and used the more than $3 billion in total to pay for road and bridge projects in the state. Critics insisted that Christie did not have the legal authority to redirect those Port Authority funds to state infrastructure repairs, but he did so anyway. (The Securities and Exchange Commission and the Manhattan District Attorney are currently investigating the legality of the diversion.)

Christie’s use of the funds was part of a larger pattern regarding the Port Authority. He crammed more than 60 political appointees into what had long been a highly professional, independent agency. It was through those appointees that lanes on the George Washington Bridge were closed in 2013 to send a message to a local official who refused to endorse Christie for re-election.

Under the Port Authority’s rules, a governor of New York could have refused to go along with the diversion of the tunnel money. But Christie’s move came just as Andrew Cuomo was elected governor. “By January 2011,” Robins said, “the first thing on Cuomo’s desk was Christie’s demand to the Port Authority that $1.8 billion be given to New Jersey for highway projects, and [Cuomo] approved it.” The ARC tunnel was generally considered a New Jersey project, and Cuomo may have wanted Christie’s cooperation with projects such as rebuilding the World Trade Center in New York.

But the diversion of the tunnel funds meant that besides forfeiting $3 billion in federal money, New Jersey would no longer have Port Authority funds or its own capital set aside for a future tunnel. As the editorial board of the Newark Star-Ledger—New Jersey’s largest-circulation newspaper—put it this past August:

If this were about fiscal responsibility, New Jersey’s tunnel money would have been set aside until a better project came along. Instead, commuters and taxpayers are left with no tunnel, and no tunnel fund—and no solid prospects for building either one.

The implications of Christie’s decision go well beyond New Jersey because passenger rail development along the Northeast Corridor depends on expanding the Hudson River tunnels.

The implications of Christie’s decision go well beyond New Jersey because passenger rail development along the Northeast Corridor depends on expanding the Hudson River tunnels. Peter C. Goldmark Jr., who served as executive director of the Port Authority from 1977 to 1985, points out that except for the interstate highway system, America’s transportation infrastructure lacks a “systemic” owner. “Each piece of an artery like the Northeast Corridor needs the political and often financial support of the states,” says Goldmark. “So any single governor has a huge ability to slow down or shut down a ‘piece’ of what is really a system.”

“ARC was a carefully crafted project over two decades, two governors, and two mayors,” observes Richard Leone, who was chairman of the Port Authority from 1990 to 1994. “It’s tough to get a package approved by the state, and then approved in Washington, and whether right or wrong, [Christie] should have had to make a case that it was really worth abandoning, or that he had a better use for the funds. [The money] was essentially used to fill potholes in the budgets.”

And to help propel Christie’s rise onto the national stage.

The National Politics of Public Investment

Cancelling the ARC tunnel had national political ramifications. The federal funds for the project came partly from the stimulus program that President Barack Obama and congressional Democrats had passed in response to the Great Recession. “The Obama administration really wanted [the ARC project] to go on,” a senior New York transportation official recalls. “It was the definition of ‘shovel ready,’ so basically the poster project of the American Recovery and Reinvestment Act.”

Christie’s cancellation of ARC earned him points with the Republican Party and conservative anti-tax groups. “I refuse to compromise my principles,” Christie boasted to prominent Republicans at a conference hosted by the George W. Bush Institute in 2012. “No matter how much the administration yells and screams, you have to say no. You have to look them right in the eye, no matter how much they try to vilify you for it, and you have to say no.”

Mike Proto, the New Jersey communications director for Americans for Prosperity, the Koch-funded anti-tax group, says that Christie’s decision to kill the ARC project “was one of the best he’s made.”

The political advantages for Christie from cancelling the ARC tunnel reflect a deeper malady: the role of anti-tax conservatives in blocking public investment to meet future needs or even to maintain vital systems in good repair.

Today, the basic elements of America’s transportation infrastructure—roads, tunnels, bridges, and passenger rail lines—are in abysmal shape. According to the American Society of Civil Engineers’ 2013 Report Card, one in nine of the nation’s 607,000 bridges are “structurally deficient.” The Federal Highway Administration estimates that annual investments of $20.5 billion would be needed to eliminate the nation’s bridge backlog by 2028—$8 billion more per year than is currently spent.

Infrastructure spending as a percentage of GDP, according to the Congressional Budget Office, has dropped from 3 percent prior to the 1980s to less than 2 percent today. In addition, average state gas taxes, the most important source of state transportation funding, have not kept up with inflation. The Institute on Taxation and Economic Policy, a nonpartisan state and federal tax policy think tank, found that, on average, a state’s gas tax rate has effectively fallen by 20 percent since the last time it was increased.

Stagnant earnings for working-class and middle-income Americans have also undermined support for public spending and have created an opportunity for anti-tax groups to gain a greater following. Yet Americans were poorer during the 1930s than they are today, and the country still undertook public works on a massive scale. In fact, as the economic historian Alexander Field argues in his book A Great Leap Forward: 1930s Depression and U.S. Economic Growth, the infrastructure investments during that period had an enormous payoff in higher growth in subsequent decades.

Public investment has a long history in the United States, dating back to New York State’s construction of the Erie Canal (opened in 1825), federal land grants to support the transcontinental railroad (a project of the Republican Party in the 1860s), and federal financing of the interstate highway system (created under a Republican president, Dwight Eisenhower, in the 1950s). Until relatively recently, public investment in transportation has been an area of bipartisan agreement. Especially in the Northeast, many Republican officials in the tradition of former New York Governor Nelson Rockefeller joined Democrats in supporting the development of infrastructure, including public transit.

Nationally, however, the Republican Party of the 1860s, the 1950s, or even the 1980s is not the Republican Party of today. Since the 1994 Republican “revolution” under Newt Gingrich, many areas of policy that were previously bipartisan have become polarized, and one of those is transportation. With fewer Rockefeller Republicans and more Tea Party types, the efforts of transportation advocates to find Republican allies have become more difficult.

In September 2010, Republicans lined up against Obama’s $50 billion transportation stimulus package. Then the 2010 midterms brought a wave of Tea Party Republicans to Congress and state governments. Newly elected Republican governors in Wisconsin (Scott Walker), Ohio (John Kasich), and Florida (Rick Scott) positioned themselves against federally funded passenger rail projects, which they denounced as wasteful initiatives that would drain state budgets. All three governors proudly rejected millions of dollars in federal grants for rail projects that had been previously awarded to their states.

The shift of the Republican Party’s center of gravity from the Northeast to the South has also affected the party’s views of transportation.Public transit—passenger rail in particular—is far less developed in the South and has less support there than in the Northeast and urban centers in the Midwest.

As a result, Republicans have grown more opposed to projects like the ARC tunnel, which would help increase passenger-rail capacity in the Northeast. In 2012, House Republicans introduced a transportation bill (including cuts in Amtrak subsidies and increases in truck-weight limits) that Ray LaHood, secretary of transportation during Obama’s first term, called “the worst transportation bill I’ve ever seen during 35 years of public service.” LaHood himself had been a seven-term Republican congressman from Illinois before he agreed to serve in Obama’s cabinet.

The increased opposition to public transit in the Republican Party is the context for understanding Christie’s cancellation of ARC. Although his decision broke with the long tradition of Northeast Republicans, he was positioning himself well within the mainstream of today’s national Republican Party.

Derailing Passenger Rail

The partisan politics of transportation show up in differing policies and attitudes toward public transit and the automobile. Consider what happened to transportation costs and spending in New Jersey when the Corzine administration gave way to Christie’s. Corzine had raised highway tolls (and would have raised them more) to finance transportation projects, including the ARC tunnel. Together with Cuomo, Christie did approve an increase in tolls for vehicles on cross-Hudson bridges and tunnels. But he canceled ARC, used the bulk of the money for roads, and pledged not to raise the gas tax. Three months after Christie assumed office, New Jersey Transit raised its fares by 25 percent.

Nationally, passenger rail has recently undergone significant growth after a long period of decline that came with the rise of the auto and air travel. Between 1946 and 1964, the annual number of rail passengers dropped from 770 million to 298 million. By 1965, according to the GAO, only 10,000 rail passenger cars were left in operation, 85 percent fewer than in 1929. But that trend has reversed. Amtrak has now been carrying record numbers of passengers; ridership grew by 55 percent from 1997 to 2012.

Yet passenger rail still faces an obstacle in public opinion. Many people, particularly conservatives, have a double standard in judging subsidies for rail versus subsidies for roads. Americans are socialists when it comes to financing roads. Government is just expected to build them and make them free for people to drive on. Most streets and highways don’t even have tolls. Yet year after year, Amtrak gets criticized for needing substantial federal subsidies to maintain expensive—and obligatory—long-distance routes.

“We spend an awful lot of money building and maintaining a system for people to travel on with cars and trucks … but mass transit is always seen as this expensive add-on,” says Leone.

“We tell ourselves this little myth that our gas taxes fund everything,” says Phillip Longman, a policy expert at the New America Foundation. Indeed, as the Tax Foundation, a tax policy research group, found, gas taxes and tolls cover only a third of all state and local road spending.

Getting Rail Back on Track

In the wake of Christie’s decision to cancel the ARC tunnel, the challenges facing passenger rail in the Northeast are steep. As Amtrak officials point out, even if the ARC tunnel had been built to handle commuter rail between New Jersey and New York, Amtrak would have still needed additional capacity under the Hudson River to accommodate the burgeoning travel demand along the Northeast Corridor. With ARC, Amtrak wouldn’t have faced the same degree of time-sensitive pressure for tunnel construction, but the long-run need is for even bigger investments.

Amtrak’s proposed alternative, known as the Gateway program, would include a new two-tube rail tunnel under the Hudson River, with a price tag that could reach $16 billion. The full Gateway program also calls for an expansion of Penn Station and the development of other transportation arteries into New York and would not be completed until 2030. Amtrak estimates that the new tunnel could be built by 2025 if funds were appropriated immediately. Amtrak officials are not sure, however, whether the existing tunnels will hold up for another decade in light of the damage from Hurricane Sandy.

“We don’t yet know what the rate of deterioration will be for the existing tunnels in terms of reliability of service,” says Stephen Gardner, the vice president of Northeast Corridor development for Amtrak. “We can see the damage, but we don’t know what that will mean for future operations.” Currently, Amtrak says, repair work on the tunnels is being done during 55-hour weekend periods, but “longer-term closures cannot be avoided.

The damage from Sandy highlights a new issue that policymakers must take into account: the need to “climate-proof” infrastructure so that it can withstand future storms and rising sea levels. Climate-proofing will require even heftier investments than previously envisioned.

But there is another kind of climate—the political climate—that stands in the way of addressing these needs. Neither the federal government nor the state has committed the necessary capital for rail and other infrastructure development. The federal stimulus dollars are gone, the funds that New Jersey previously earmarked for ARC have been spent, and New Jersey’s Transportation Trust Fund has been depleted.

In New Jersey, the state government’s finances have spiraled downward under Christie’s leadership. New Jersey’s credit rating has been downgraded eight times. The state pension system has lost billions of dollars under management by one of Christie’s political appointees. After Christie withheld legally required state contributions to the pension fund, the fund’s trustees filed a lawsuit against the governor to demand that the payments be made. And Christie’s support at home has been slipping. A Rutgers University poll released last October found that more New Jersey voters held an unfavorable impression of Christie than a favorable one.

Still, many Republicans in the country consider Christie a real leader, a “tough guy” who stands up to big interest groups (like schoolteachers!). After friendly gestures toward Obama in 2012, Christie won re-election as governor the following year with 60 percent of the vote, including 32 percent of registered Democrats. Since then, Christie has been cultivating support from the Republican base. As chairman of the Republican Governors Association, he spent significant amounts of time throughout the 2014 midterm election season campaigning for Republicans in 37 states, all the while expanding his own personal national donor network.

Enthusiasm among Republicans for Christie may not be as robust as it once was, but he remains a serious contender for the party’s presidential nomination. After all, Republicans around the country are not going to ask why the governor of New Jersey canceled a rail tunnel under the Hudson River. And Christie will be long gone from state politics when people in the region are left to suffer the consequences of that decision.

In the wake of Christie’s decision to cancel the ARC tunnel, the challenges facing passenger rail in the Northeast are steep. As Amtrak officials point out, even if the ARC tunnel had been built to handle commuter rail between New Jersey and New York, Amtrak would have still needed additional capacity under the Hudson River to accommodate the burgeoning travel demand along the Northeast Corridor. With ARC, Amtrak wouldn’t have faced the same degree of time-sensitive pressure for tunnel construction, but the long-run need is for even bigger investments.

 

Chris Christie Counts on Public Amnesia

Originally published in The American Prospect on January 14, 2015.
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In 2010, New Jersey Governor Chris Christie took over $3 billion in revenue earmarked for a new rail tunnel under the Hudson River and used it to plug a hole in his budget —leaving the people of his state and the region with no tunnel, and no money left for one in the future. Now Christie has endorsed a new report that includes a recommendation for expanding rail capacity between New Jersey and New York, as if no one would remember that he killed an earlier federally subsidized project that would have accomplished that purpose.

In the Winter 2015 issue of The American Prospect, I report the story of Christie’s 2010 decision and its disastrous consequences, particularly in the wake of the damage that Hurricane Sandy did to the two existing rail tunnels built over 100 years ago that are currently the chokepoint for rail transportation in the Northeast.Though Christie backed building a new rail tunnel on the campaign trail in 2009, he cancelled the project after entering office, when it became clear that it would require him to raise New Jersey’s gas tax(the next-to-lowest in the country). Doing so carried risks of antagonizing local anti-tax groups and jeopardizing his national ambitions within the Republican Party.

Last May, Christie and New York Governor Andrew Cuomo convened a panel tasked with recommending how to improve the Port Authority of New York and New Jersey, a bi-state agency that controls river crossings, regional airports, and marine terminals. The move came amid a flurry of Port Authority political scandals. Though the two governors publicly endorsed the panel’s proposals, which were published in a 99-page report on December 27, they both vetoed bills their state legislatures had passed to reform the Port Authority, insisting that they would enact better measures on their own.

The panel’s report notes that cross-Hudson River travel has not kept pace with population growth and that passenger demand is projected to double by 2030. Accordingly, the panel recommended that the Port Authority lead a regional planning team in 2015 to explore, among other things, expanding rail capacity between New Jersey and New York.

This is all well and good, except that political leaders have known about these population projections and regional risks for over two decades.

As Christie gears up for a presidential run, the chances of his endorsing a tax increase to finance a new rail tunnel (and other infrastructure needs in his state) are vanishingly small. Catering to the anti-tax fervor in the Republican Party will have a big cost not only for the commuters in New Jersey but for the entire Northeast region.