Associated Press: US construction spending slumped in September
U.S. builders cut their spending on construction projects in September, the second straight monthly decline. Much of the decrease came as government spending for schools, sewers and transportation projects tumbled — part of a broader yearlong decline as infrastructure funding has become a key policy issue in the presidential election.
Tech Crunch: The next investments in infrastructure should include more than roads and bridges
While both political parties seem to agree that Congress should spend several hundred billion dollars on infrastructure, their spending plans ignore one of the most woefully out-of-date pieces of American infrastructure.
Financial Times Adviser: Infrastructure will be the biggest winner of US election
Regardless of who wins next week's US presidential election, investors will benefit from a greater scope to invest in infrastructure, according to Jamie Ware of Churchill Investments.
Wall Street Journal Video: Opinion Journal: The Infrastructure Illusion
Hoover Institution Senior Fellow Michael Boskin on why the construction of roads and bridges doesn’t necessarily spur economic growth.
Wall Street Journal: Obama’s Electric Car Money Grab (full article follows Morning Transportation)
A federal judge last week approved a $14.7 billion settlement to partially resolve the legal fallout over Volkswagen’s installation of “defeat devices” designed to cheat air quality rules in more than 500,000 vehicles sold in the U.S.
Bloomberg: Uber Teams Up With GM, Backer of Rival Lyft, on Car-Sharing Service
Uber Technologies Inc. is working with General Motors Co., a major backer of ride-hailing rival Lyft Inc., to help drivers get access to vehicles. The automaker's Maven car-sharing service will let Uber drivers lease cars from GM's fleet in San Francisco.
New York Times: City Unveils Possible Routes for Streetcar in Brooklyn and Queens
As Mayor Bill de Blasio’s administration moves forward on plans for a new streetcar line from Queens to Brooklyn, city officials on Tuesday unveiled the different routes they are considering for the project.
New York Times: Drivers Descend on New Jersey Pumps for Final Hours of Cheap Gas
Stephanie Long roared into a service station in her red Mustang late on Monday, yanked a red lollipop from her mouth and told the attendant to top off the tank, fast. She was worried about the red ink in her budget.
Associated Press: Strike by Philadelphia transit workers enters 2nd day
Commuters in Philadelphia are facing another day of transportation woes Wednesday as a transit strike enters its second day.
Washington Post: Auto-centric suburb considers making developers pay more for transit, walking
Montgomery County is considering changing how it measures the transportation impact of proposed development, focusing — for the first time — on how accessible new buildings would be to transit rather than how many vehicles they would add to roads.
Washington Post: It has come to this: It’s time to consider a federal takeover of Metro
IT IS time to consider a radical step to arrest what looks increasingly like a death spiral for Washington’s transit system: federal intervention and control. It is not just folly, but willful neglect, to wait any longer to see if Metro’s problems will somehow solve themselves. They won’t.
Sheepshead Bites: Four Years After Sandy, Climate Resiliency Planning For Sheepshead Bay Continues
In recognition of the fourth anniversary of Superstorm Sandy, we’re taking a deeper look this week at the status of recovery efforts along the Brooklyn waterfront and in Southern Brooklyn. We’re also trying to understand how the City is working to protect communities in these areas from rising seas and the storms of the future.
San Francisco Chronicle: Bay Area voters asked to support transportation fixes
BART’s appeal to voters to boost their property taxes to rebuild the rail transit system has generated a lot of debate as election day approaches. But it’s not the only, or even the biggest, transportation tax measure Bay Area voters on Tuesday will be asked to decide.
Denver Business Journal: Hickenlooper plans transportation, hospital funding cuts in Colorado budget
Colorado Gov. John Hickenlooper on Tuesday proposed cutting transportation funding in the state’s general-fund budget by 41 percent over the next two years, even as his staff expressed concern about increasing congestion and more fatal accidents on the state’s roads.
Philadelphia Inquirer: SEPTA strike tries the city's patience
A day of frustration devolved into an evening of confusion for Philadelphia commuters Tuesday as pickets blocked SEPTA crews from reaching trains, causing delays and cancellations in an already stressed Regional Rail system.
By Brianna Gurciullo | 11/02/2016 05:40 AM EDT
With help from Lauren Gardner and Tanya Snyder
NO CLINTON BUSINESS TAX REFORM DEETS BEFORE ELECTION: MT readers know well that Hillary Clinton has promised to spend $275 billion on the nation's infrastructure over a five-year period. But when it comes to how she'll pay for that plan, the Democratic presidential candidate has only said publicly that the money will come from "business tax reform." Now, one of her economic advisers says Clinton won't detail her business tax proposal until after Election Day. As Pro Tax's Brian Faler reports , former Treasury official Roger Altman said Tuesday that "at some appropriate point, she's going to make a proposal in terms of what the rate should be and how the base should be affected and so forth." Clinton could be worried about putting off progressive voters, who might think her plan is too Big Business-friendly, Brian reports.
A little history: When Clinton gave a paid speech a couple years ago, she seemed to back the idea of giving corporations "a really low rate" if they repatriate their profits overseas and invest "a percentage" in a national infrastructure bank, according to a partial transcript that WikiLeaks released as part of its dump of emails purportedly hacked from her campaign chairman. Clinton has neither confirmed nor denied the authenticity of the transcript. She wants to spend $25 billion on starting up an infrastructure bank, but President Barack Obama's plans for such a bank never got far.
Trump's plan: Donald Trump has promised to push legislation through Congress that would leverage "public-private partnerships, and private investments through tax incentives, to spur $1 trillion in infrastructure investment over 10 years." He claims the bill would be "revenue neutral."
IT'S WEDNESDAY: Good morning and thanks for tuning in to POLITICO's Morning Transportation, your daily tipsheet on all things trains, planes, automobiles and ports. Please send tips, feedback and, of course, song lyrics to email@example.com or @brigurciullo.
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APPEALS COURT UPHOLDS E-LOG RULE: A federal appeals court in Chicago this week threw out a trucking industry group's challenge to an FMCSA rule — required by Congress — mandating that electronic logging devices replace paper logs in most commercial trucking outfits, our Lauren Gardner reports for Pros. The Owner-Operator Independent Drivers Association sued DOT in December 2015, arguing that the rule didn't do enough to both ensure the technology would automatically register changes in a driver's duty status (even when they're not in the cab) and protect drivers from harassment by their superiors. OOIDA took DOT to the same court for an earlier version of the rule over the harassment concern and won, but a three-judge panel of the 7th Circuit wasn't swayed this time.
"We are disappointed and strongly disagree with the court's ruling," OOIDA President and CEO Jim Johnston said through a spokeswoman. "Because this issue is of vital importance to our members and all small business truckers, we are reviewing our next steps to continue our challenge against this regulation."
Singing from the same song sheet: Meanwhile, safety advocates and the American Trucking Associations applauded the decision. "ATA is pleased that the court has cleared the way for this important regulation and we look forward to its implementation," spokesman Sean McNally told Lauren.
"Far too many people have been killed and families needlessly devastated from crashes caused by tired truckers who have exceeded [hours of service] limits," said Henry Jasny, general counsel and senior vice president at Advocates for Highway and Auto Safety. "With this court decision, safety prevailed and an affordable and available technology will now be required."
IN TOSS-UP RACE, MICA SEEMS UNCONCERNED: Former Transportation Committee Chairman John Mica (R-Fla.) has failed to take his Democratic challenger seriously, even as he's been "buffeted by Donald Trump headwinds, a well-funded Democratic challenger and a redrawn voting district," POLITICO's Rachael Bade reports . His younger opponent, Stephanie Murphy, has a fine-tuned message and the support of big-name Democrats. But Mica, first elected in 1992, still thinks he's doing well in the race. Rachael reports that during a "ride-along interview, he pointed to a dozen infrastructure projects he helped build in some way, shape or form: a commuter rail system, highway and overpass improvements, airport renovations. He's counting on work like this to carry him across the finish line."
HOW BAD IS AIRCRAFT CABIN NOISE? Rep. Peter DeFazio, the House Transportation Committee's top Democrat, wants the GAO to take a look at how cabin noise affects flight crews. In a letter to the office Tuesday, the Oregon Democrat says "cabin crewmembers may sustain permanent hearing loss from their continuous exposure to wind, engine, and other equipment-generated noise inside cabins where they repeatedly work for up to 14 hours per day." But, DeFazio points out, there is no "reliable, comprehensive, scientific data" on cabin noise. As our Tanya Snyder reports for Pros, he wants to know whether noise levels are so high that OSHA should step in.
UNION ADS PRAISE SHUSTER, ATTACK COMSTOCK: Ads by the Amalgamated Transit Union started running Tuesday in Pennsylvania's 9th District, where Bill Shuster is fighting to keep his seat against Art Halvorson, and in Virginia's 10th District, where Barbara Comstock is facing Democratic challenger LuAnn Bennett. The ad for Shuster lauds his work on the FAST Act: "While others have been fighting and bickering, Bill Shuster rallied both Republicans and Democrats to support and pass the most importation transportation bill for America in years," it says. Meanwhile, the ad about Comstock claims she "voted against Northern Virginia getting its fair share of support for roads and transit," referring to a bill she opposed while a member of the Virginia House of Delegates.
MT MAILBAG: Sen. Martin Heinrich (D-N.M.) sent a letter to the FTC asking the agency to look at how common it is for rental car companies to make travelers pay fees for using electronic toll paying technologies. He pointed out that consumers don't always know whether they will end up on a toll road when they rent a car and some toll stations don't take cash payments. "In the cases of plate reading technology, cameras at the toll station automatically record when a vehicle passes through the station and charge the account associated with the license plate," Heinrich wrote. "Rental car companies then forward the charge for the toll to the unaware renter, with extremely high fees attached for the 'convenience' of using the only toll-paying option available."
Heinrich wants the FTC to "determine whether rental car companies using these fee structures are unnecessarily price gouging consumers and engaging in unfair and deceptive business practices." He asks that the agency "report on measures that the industry can take to make sure that these fees are reasonably priced, adequately disclosed and understood by consumers before renting a car."
WAPO EDITORIAL BOARD CALLS FOR FEDERAL CONTROL OF METRO: The Washington Post's editorial board says "it is time to consider" whether a federal control board should manage Metro amid "what looks increasingly like a death spiral for Washington's transit system."
"Along with new investment, Metro must have new governance," the editorial board wrote. "Under federal auspices, that would include a governing board of transit, finance and management professionals, not local politicians, who have overseen the agency in its descent. The status quo is untenable; Metro desperately needs a clean slate."
A4A EXPECTS INCREASE IN THANKSGIVING TRAVELERS: Over 27 million people will take flights with U.S. airlines around the time of Thanksgiving, Airlines for America predicts. The estimate of 27.3 million travelers is a 2.5 percent increase from last year. The association says the boost stems from cheaper airfare. With extra flights and bigger planes, airlines have increased capacity by 74,000 seats for each day of the travel period, which A4A considers to be Nov. 18 to 29. The association says Sunday, Nov. 27 will be the busiest day.
NTSB ON SITE IN BALTIMORE: NTSB is investigating after a school bus and Maryland Transit Administration bus crashed in Baltimore on Tuesday, leaving six people dead, including both drivers. The Baltimore Sun reports that the school bus, which didn't have any students on board, hit the back of a car and then a pillar before it swerved into the oncoming MTA bus. A police spokesman told the Sun there were no signs that the school bus driver had tried to slow down before the collision.
SHIFTING GEARS: Smita Satiani, deputy director of the White House Presidential Innovation Fellows, is heading to San Francisco to work for the policy team at X, a "moonshot factory" founded by Google that includes self-driving car and automated aircraft projects.
Mark McAndrews is the new board chairman of the American Association of Port Authorities. McAndrews, the port director in Pascagoula, Miss., replaces Jim Quinn, the president and CEO of Port Saint John in Canada.
— "The future of America is driverless." An interview with Transportation Secretary Anthony Foxx. The Verge.
— "Europe wrestles with Uber: Critics say a U.K. labor case could be a watershed moment." POLITICO Europe.
— "Transit strike tries the city's patience." The Philadelphia Inquirer.
— "Uber teams up with GM, backer of rival Lyft, on car-sharing service." Bloomberg.
— "Drivers descend on New Jersey pumps for final hours of cheap gas." The New York Times.
— "Your Uber driver is twice as likely to cancel if you're black." The Washington Post.
— "No lights, signs required at site of fatal California crash." The Associated Press.
— "Can mega-fast maglev revive Japan's rail reputation?" CNN.
POLITICO New Jersey's coverage of the Bridgegate trial:
— "Bridgegate defense attorney rages as judge deals setback." Ryan Hutchins.
THE COUNTDOWN: DOT appropriations run out in 37 days. The FAA reauthorization expires in 331 days. The 2016 presidential election is in 6 days. Highway and transit policy is up for renewal in 1,431 days.
THE DAY AHEAD:
10:30 a.m. — At the NBAA-BACE second day general session, James Carville and Mary Matalin discuss the election. Sen. Bill Nelson (D-Fla.) will also receive the NBAA Meritorious Service to Aviation Award. Orlando, Fla.
11 a.m. — A4A holds a conference call on third quarter financial results, the association's predictions for travel during Thanksgiving and ICAO's recent emissions agreement.
1 p.m. — APTA and the Center for Transportation Excellence hold a briefing on transit ballot measures. Registration is here.
6:30 p.m. — The Scher Sustainability Forum at American University holds a discussion on "opportunities for linking environmental and economic goals through smart investments in infrastructure" with Carol Browner, former director of the White House Office of Energy and Climate Change Policy and former EPA administrator, as well as Democratic Rep. John Delaney of Maryland. American University, Ward Circle Building, Room 2, 4400 Massachusetts Ave. NW.
Did we miss an event? Let MT know at firstname.lastname@example.org.
Stories from POLITICO Pro
Clinton adviser says her business tax plan won't come before the election Back
By Brian Faler | 11/01/2016 02:29 PM EDT
Democratic presidential nominee Hillary Clinton will not spell out her plans for business tax reform before next week's election, an economic adviser said today.
"She does think we need business tax reform" but "the campaign isn't the place to negotiate the rate," said Roger Altman, a former Treasury official.
"Let's wait until the election is over and we'll see who's elected — and I think it's going to be Secretary Clinton — and at some appropriate point, she's going to make a proposal in terms of what the rate should be and how the base should be affected and so forth," he said.
Clinton has proposed using business tax reform to finance increased infrastructure spending. But she has declined to explain what she has in mind for the corporate tax code, even though she's detailed her policy proposals in a host of other issue areas.
Many observers see politics at work, saying Clinton is wary of deflating Democratic turnout with a plan that some progressive voters might see as too friendly toward big business.
Altman's comments came in a debate sponsored by Yahoo Finance with Peter Navarro, an economic adviser to Donald Trump. Navarro criticized Clinton's tax plans.
Trump has proposed a comprehensive tax reform plan that includes cuts in corporate and small business taxes. He has also called for leveraging "public-private partnerships, and private investments through tax incentives, to spur $1 trillion in infrastructure investment over 10 years."
Court rejects trucking group challenge to electronic log rule Back
By Lauren Gardner | 11/01/2016 10:51 AM EDT
A federal appeals court has denied a trucking group's challenge to a revamped DOT rule mandating electronic logging devices on tractor-trailers.
The Owner-Operator Independent Drivers Association sued DOT in December 2015, arguing that FMCSA didn't adequately comply with a requirement for the devices to automatically record any changes in a driver's duty status, even when not behind the wheel.
The group's "reading of the statute seeks to pit one statutory requirement against another rather than allow the agency to balance competing policy goals endorsed by Congress," a three-judge panel of the U.S. Court of Appeals for the 7th Circuit wrote in the opinion.
OOIDA also contended that the new rule, which was rewritten after the group successfully challenged an earlier version, didn't do enough to address its previous concerns that the technology could be used to harass drivers.
The judges wrote that FMCSA sought comment from a range of sources when defining "harassment" in the rule and "ultimately provided a reasonable definition of the term."
Congress mandated the rule requiring electronic logging devices in most big rigs in 2012.
Top GOP congressman laughs his way to possible defeat Back
By Rachael Bade | 11/01/2016 12:28 PM EDT
ORLANDO, Fla. — John Mica is facing his toughest reelection bid in more than two decades, as he's buffeted by Donald Trump headwinds, a well-funded Democratic challenger and a redrawn voting district.
But at a canvassing kickoff just over two weeks before Election Day, the Florida Republican wasn't fretting. Instead, he was cracking jokes.
"I don't have a campaign manager," he chuckled during a speech that was supposed to inspire volunteers to get out the vote. Just a few minutes before, he highlighted his "terrible press operation" — a single, part-time press secretary who's actually a Democrat.
And after noting the more than $3 million worth of attack ads Democrats have aimed his way, Mica laughed it off, saying "we haven't had that kind of money ... nor would we waste that kind of money," before shifting gears to highlight an unusual strategic advantage: "I do have my secret weapon: my wife, Pat. She'll be driving the getaway car today!"
The 12-term incumbent may be in denial, but his political future is no laughing matter. After sailing to easy reelection for more than two decades without a serious Democratic challenger, the ex-chairman of the House Transportation Committee has suddenly found his congressional seat in serious jeopardy.
Thanks to a new congressional district, about a quarter of his constituents don't know him. A good chunk of those new voters are Democrats, turning the 73-year-old conservative's formerly red district into one evenly split between the two parties for the first time ever.
Meanwhile, Democrats in Washington — who for years were unable to recruit a solid candidate to contest the popular lawmaker known for earmarking favors for his district — have finally found themselves a formidable challenger in Stephanie Murphy. The 38-year-old daughter of Vietnamese refugees is young and dynamic, a polished presence on the campaign trail.
The left is pulling out all the stops to get her elected, flying in big-name Democrats to support her, including House Minority Leader Nancy Pelosi of California and gun-control advocate Gabby Giffords. President Barack Obama endorsed her in a video released Monday. Democrats are also spending millions on TV ads that have been running for nearly two months now. Mica, conversely, just went live with his about a week ago.
The Cook Political Report changed Mica's district rating from "likely Republican" to "lean Republican" to "tossup." And the last-minute frenzy forced the National Republican Congressional Committee to come to Mica's rescue with an influx of cash just two weeks before voters headed to the polls.
Senior Republicans, meanwhile, aren't happy with Mica, grumbling that he should have done more to get to know his new district months ago — or at least sensed a threat in Murphy much earlier.
Mica, however, still isn't taking his challenger seriously — which could be his undoing.
"You walk down the street, and you'll see: They know me; they greet me. They wouldn't know her from Adam's house cat," he said, intentionally refusing to name his challenger, Murphy.
While they live in the same neighborhood just north of Orlando, the two candidates are polar opposites.
Mica has a reputation for being something of an oddball. He obsessively hordes throwaway coffee cups in his office and home, insisting that his companions reuse the same paper or Styrofoam carries because "it's recyclable!" He's known to offer candid comments, telling one reporter several years ago that the journalist looked homeless and like he "slept on a grate" the night before. During a ride-along interview with POLITICO on Saturday, he noted that the local county Republican headquarters was across the street from a strip club. ("It's kinda a local joke.")
In Washington, he's famous for his colorful news conferences. During one protesting Amtrak food subsidies, hosted outside a McDonald's near Union Station in 2012, Mica waved a hamburger in the air while yelling at a train zipping by. At another, held in Florida a few years ago, he dared local budget officials to walk the rail of a busy four-lane bridge — just as pedestrians had to because the structure lacked a sidewalk.
By contrast, Murphy, a mother of two, is laser focused on message. She has a moving backstory: When she was 6 months old, in the 1970s, her family fled communist Vietnam on a tugboat. When they ran out of fuel and were stranded at sea, a U.S. Navy vessel rescued them.
"I've been frustrated with the gridlock and partisanship that has locked down Washington," she said in an interview at her upscale campaign headquarters, located inside a fancy architecture firm building with floor-to-ceiling windows. "They just aren't producing legislation, and when they're not doing that, they're not serving the country."
On a brisk Saturday morning in mid-October, the candidates' sharply different styles were on full display. Mica — who went 20 years in office without having a press secretary — hustled by himself from door to door in a middle class Orlando-area neighborhood. He passed out black-and-white leaflets that he bragged are "cheap" and "printed from the copy machine."
When people weren't home, he scribbled little personalized messages on the back of each pamphlet. And when they were, he just thanked them for their support — notably forgoing an opportunity to ask a single person to vote for him.
Just a few hours later, Murphy attended a vegan festival with a posse of a half-dozen campaign staffers in purple "Stephanie Murphy" shirts. As they passed out colorful, glossy leaflets to people eating at picnic tables, Murphy made a pointed effort to ask attendees for their vote.
"I'm running for U.S. Congress against Congressman Mica," she told Kristine Iverson, a 38-year-old yoga teacher and longtime Mica constituent. "He's voted against common-sense gun-safety measures. He's taken a check from the gun lobby two days after the Pulse nightclub shooting ... and he's voted against equal pay for equal work; the Violence Against Women Act and ... he doesn't believe that climate change is real!"
Iverson, who only knew Mica before the exchange, now intends to vote for Murphy.
Gun-control has become a central pillar of Murphy's campaign, in part because the gay nightclub shooting last June,in which a gunman killed 49 people, occurred just minutes away in downtown Orlando.
Murphy's also trying to label Mica as anti-woman, tying his votes against the Violence Against Women Act to Trump's lewd comments about women. (Mica notes that he has indeed voted for VAWA several times and only opposed it when the bill was "weaker" than he believed it should be.)
In one of the most talked-about DCCC ads, the narrator tells Floridians to vote for Murphy because Mica believes "marital rape should be legal." (Mica, who voted in the early 1980s against a bill that would have made marital rape a crime, says there were loopholes in the bill that would have made it harder to prosecute rape in other circumstances. He says he's voted for legislation protecting women dozens of times and views marital rape as a crime.)
Nursing a cup of coffee at a local cafe in his hometown, Mica's wife, Pat, says these kinds of ads have made the race "very tough on the family." She's doesn't watch TV anymore because of them. And while she's battling colon cancer, she grimly jokes that "I don't know which is worse: chemotherapy or this."
"'Make rape legal, that's what Mica said!'" she mimics one DCCC ad. "'Mica may be more dangerous than Trump!'" she says as she echoes another. "I'm very appalled at what they've done ... the way they've gone about destroying him and his record, and not even just his record, but who he is."
Asked how he's countering Murphy's message, Mica admits he hasn't really been able to.
"We haven't had the money to do much countering!" he explains. He said he had been "holding fire" before the last two weeks of the race, when he planned to go up with last-minute ads defending himself. "When you don't have the money, you can't just dribble out your message. I have enough money to be somewhat competitive the last two weeks, so that's where we'll do most of our countering."
Even though fellow Republicans here are worried about him losing, Mica says "we're doing extremely well considering the battering we're taking." During the ride-along interview, he pointed to a dozen infrastructure projects he helped build in some way, shape or form: a commuter rail system, highway and overpass improvements, airport renovations.
He's counting on work like this to carry him across the finish line.
"I've represented the general area for 23 years. ... I walked all of these areas in the past and I know folks, and I think I have a good reputation," he said. "You'll see."
DeFazio wants more data on airline cabin noise Back
By Tanya Snyder | 11/01/2016 03:23 PM EDT
Rep. Peter DeFazio (D-Ore.) wants the GAO to study the impact of cabin noise on airline crewmembers, saying "reliable, comprehensive, scientific data" simply doesn't exist.
In a letter sent today, DeFazio expressed his concern "that cabin crewmembers may sustain permanent hearing loss from their continuous exposure to wind, engine, and other equipment-generated noise inside cabins where they repeatedly work for up to 14 hours per day."
Available data on cabin noise is inadequate, DeFazio said, despite OSHA standards for workplace noise limits.
Noisy aircraft can have safety consequences for passengers too, DeFazio suggests: "When an emergency situation is unfolding in the cabin, the safety of everyone on board depends on a well-trained, well-rested crew with the sensory faculties necessary to spring into action."
DeFazio asked the GAO to report back on OSHA's and the FAA's responsibilities to measure and address ambient noise on aircraft, the availability of relevant data, whether aircraft noise levels are high enough to prompt action by OSHA, and what might be done to mitigate crewmembers' noise exposure.
Bridgegate defense attorney rages as judge deals setback Back
By Ryan Hutchins | 11/01/2016 02:02 PM EDT
NEWARK — Jurors in the George Washington Bridge lane closure case were instructed on Tuesday afternoon that they can find the defendants guilty of conspiracy even if the two former allies of Gov. Chris Christie weren't motivated by political revenge.
The ruling by U.S. District Court Judge Susan Wigenton — in response to a question submitted by jurors — seemed to deeply anger defense attorneys, who argued that the defendants believed the lane closures were part of a legitimate traffic study, rather than a scheme to punish the mayor of Fort Lee for not endorsing Christie for reelection in 2013.
Michael Critchley, the lead attorney for Bridget Anne Kelly, visibly reacted to Wigenton's ruling, prompting the judge to chastise him for not keeping his opinion to himself.
Critchley sat brooding, staring forward and shaking his head as she spoke. Then, even after she made her decision clear, he rose to challenge it.
"By answering the way you're answering, you're directing a verdict of guilty," Critchley said, in one of the tensest moments since the trial began six weeks ago. "You're directing a verdict of guilty."
Kelly, Christie's former deputy chief of staff, and Bill Baroni, the Christie-appointed former deputy executive director of the Port Authority of New York and New Jersey, were indicted last May on charges of conspiracy, fraud and civil rights violations.
They are accused of manufacturing traffic jams by closing local access lanes to the bridge — the world's busiest — in order to punish Democrat Mark Sokolich for not endorsing Christie.
The jurors began their deliberations on Monday afternoon and resumed their work on Tuesday morning. By lunchtime, they had two questions for the judge to address, most notably about how the intent of the defendants played into their decision.
The key question the jurors asked was whether the defendants "can ... be guilty of conspiracy without the act being intentionally punitive toward Mayor Sokolich."
Though jurors didn't know it, the question hit on an issue that had already prompted an angry debate last week when the defense attorneys, prosecutors and the judge met to discuss the jury instructions.
Wigenton decided last week to remove from her instructions almost any mention of the reason prosecutors say Kelly and Baroni decided to close several lanes: punishing Sokolich, whose name is mentioned 80 times in the indictment but was mentioned only once in passing during Wigenton's instructions.
The judge had sided with prosecutors with the U.S. attorney's office, who have said that "the object of the conspiracy" was not relevant to the charges of misusing and conspiring to misuse Port Authority property.
Critchley and Michael Baldassare, Baroni's lawyer, noted on Tuesday that the punishment of Sokolich is specifically mentioned in the indictment as charge of the conspiracy charge. Critchley also noted it is key to their primary defense strategy, known as the "good faith defense," which holds that they can't be found guilty if they honestly didn't know what was going on.
"The punishment is right in the words of the good faith defense," Critchley argued.
Beyond the issue of intent, the jurors also asked the judge whether it was legal for prosecutors to meet with the star witness in the case without making the two defendants aware of the discussions.
"Is it legal to prepare a case without the defendant's knowledge or representation?" the jurors asked in a note to Wigenton, saying their question was in reference to meetings the government had with David Wildstein, the controversial Christie appointee to the Port Authority who is the admitted mastermind of the scheme.
Wigenton ultimately told jurors that doing so was appropriate, sending a note that indicated it "is legal for each side to meet with witnesses, with or without the other side being present, with or without representation."
The attorneys for the two defendants strongly objected to giving the jury such a response, saying the jurors should be referred back to the instructions they had been given.
Baldassare spent a significant amount of time during the trial asking Wildstein about the numerous meetings he had with prosecutors and FBI agents in the years leading up to the trial. He noted that neither he nor his client were present for any of those meetings, appearing to suggest that they were wrongly kept in the dark.
Baldassare urged Wigenton not to answer the question, saying it could prejudice jurors.
"If the court says yes, your Honor is vouching for the prosecution and impeaching me because of the arguments that were presented," he said in U.S. District Court on Tuesday afternoon.
Assistant U.S. Attorney David Feder said it was "a straightforward legal question with a straightforward legal answer.
"Those interviews occurred pre-trial, in some instance a year-and-a-half or two years before trial," he said, adding that "the record should reflect that the government invited both defendants to meet" with witnesses.
The debate over the legal issues had the prosecution and defense angrily sniping at each other. Feder interrupted Critchley at one point to suggest the loud argument to the court could be heard by jurors.
"Take it down a notch," Feder said.
"The court tells me what to do, not you," Critchley yelled back.
"Relax," Wigenton said. "Relax."
She later said, "You guys are too much."
"You're so feisty," she said, prior to Critchley's angry response to her ruling. "Just relax."
Wall Street Journal: Obama’s Electric Car Money Grab
A federal judge last week approved a $14.7 billion settlement to partially resolve the legal fallout over Volkswagen’s installation of “defeat devices” designed to cheat air quality rules in more than 500,000 vehicles sold in the U.S.
The complicated settlement resolves a number of legitimate claims, providing relief for car owners, the state of California and the Federal Trade Commission. But it also includes a dubious provision that Volkswagen invest $1.2 billion in a plan to be approved by the Environmental Protection Agency to promote “zero-emissions vehicle technology,” a euphemism for electric vehicle charging stations. This is an affront to both common sense and the Constitution.
According to the Justice Department, the $1.2 billion investment remedies Clean Air Act violations for “deceptive marketing.” But this is absurd. The Clean Air Act has nothing to do with the policing of false advertising, of which Volkswagen was guilty. That’s the job of the FTC, which is party to the settlement.
With no basis in existing law, the origins of the $1.2 billion “investment” can be found in a failed legislative proposal from the Obama administration. In his 2011 State of the Union address, President Obama promised to put one million electric vehicles on the road by 2015. To this end, the White House requested from Congress $300 million. Congress demurred.
In 2016 the president once more sought federal spending to support increased usage of zero-emissions vehicles through a program called the 21st Century Transportation Initiative. Again, Congress refused.
Having failed to persuade Congress, the administration now seeks to co-opt the judiciary’s injunctive and contempt powers in order to advance the president’s failed legislative agenda. The proposed consent decree would give the government authority over $1.2 billion in zero-emissions vehicle investments, which is four times what the administration unsuccessfully sought from Congress for effectively the same purpose in 2011.
If allowed to stand, the $1.2 billion electric-car money grab would provide a powerful model for future presidents to cut Congress out of the appropriations process. All future presidents would have to do is allocate resources into regulatory enforcement and then pursue settlements whereby the regulated entity “voluntarily” agrees to fund the president’s preferred policies.
The Volkswagen settlement includes a stipulation that would have allowed the court to remove the industrial-policy provision without altering the rest of the agreement, but the judge refused to exercise this authority.
Because an appeal of the settlement’s approval appears unlikely, it is incumbent on Congress to defend against such blatant executive overreach. In September a bipartisan majority in the House of Representatives passed H.R. 5063, the Stop Settlement Slush Funds Act, which would rein in the president’s power to pursue failed legislative priorities through regulatory enforcement. In the name of constitutional order, the Senate should approve this worthy bill.