The Oklahoma legislature continues to impose new mandates on individuals and businesses that grow government and restrict free and open markets. This despite being comprised of a supermajority of legislators affiliated with a political party that claims to support limited government and individual liberty.

One can apportion blame for such myopic legislation in several ways. Among the contributing factors is a concerning lack of public testimony in the Oklahoma legislative process. Public testimony allows for viewpoint diversity. On occasion throughout my career, I have witnessed public testimony inspire legislative epiphanies, causing a legislator to ask a thoughtful, probing line of questions. Unexpected testimony often changes minds.

A recent hearing of the House Transportation Committee serves as just one recent example of the testimony deficiency in the Oklahoma legislative process. The committee unanimously approved House Bill 1048, sponsored by Representative Dell Kerbs, which mandates that private railroads maintain at least “two crewmembers in the control compartment of the lead locomotive unit of a train.”

The committee heard from the bill sponsor followed by a couple of technical questions fielded by the Secretary of Transportation. That’s it. As a result, the committee voted on a simple bill that it believed was an innocuous codification of current practices that would protect public safety indefinitely into the future.

Indeed, HB1048 is a straightforward bill, and it does codify a current practice among many railroads. In the short term, there really isn’t much of a burden on private industry. However, conceding those points, one could easily conclude that, at a minimum, this bill is presently unnecessary. Therefore, any intended value must lie almost exclusively in securing future public safety.

However, not only does the future public safety angle fall flat, it is the future for which this bill is most problematic. In the long term, the bill is an example of an overly restrictive mandate on a private industry that reduces operational flexibility, impedes future innovation, and drives up costs through legislatively disguised union featherbedding (mandating more employees than are truly needed).

First, the argument that HB 1048 will help promote public safety is unsupported. Trains are already relatively safe. According to the U.S. Department of Transportation, in 2018, there were a total of 7 deaths resulting from rail transit. Contrast that with the fatalities involving large trucks. According to one source, in the same year 4,136 people died due to collisions involving large trucks. The forecast for future fatalities, injuries, and accidents involving trains appears to follow a downward trajectory.

Additionally, a few years ago, the Federal Railroad Administration (FRA) withdrew a similar proposal to impose mandatory minimum crew sizes because the railroad safety data does not support a crew size mandate. They concluded that there were no data to support the premise that a two-person crew was any safer than a one-person crew.

What makes this type of mandate even more senseless is that there is already a great deal of safety-centric innovation occurring in the railroad industry, due in part to the federally mandated Positive Train Control (PTC) system. PTC systems are innovative technologies that allow for network-wide communications to increase efficiency, improve safety, and reduce accidents resulting from human error. According to the Association of American Railroads (AAR), human error was responsible for the largest percentage of accidents in 2019 (41%).   

Second, HB 1048 represents the type of overly restrictive mandate that impedes increased efficiency through future innovation. Currently, across the nation, there is talk of smart cities, robotic delivery, automated retail services, and, particularly relevant to this bill, driverless cars. Michigan is working toward dedicated autonomous vehicle lanes between Detroit and Ann Arbor; Waymo has been running driverless vehicles for millions of miles on public roads in the Phoenix Metropolitan Area; and companies are piloting self-driving semis to haul goods across the country.

Such innovation in the railroad industry could benefit consumers, businesses, and even the environment by increasing efficiency in operation, driving down costs, and providing an energy-efficient, relatively safe mode of transporting freight. Yet, despite this environment of innovation and futuristic thinking, the Oklahoma legislature insists on locking trains, that may just be passing through, into a standard that may soon be obsolete.

Indeed, the only apparent value to this measure is creating job security for union members long after technology renders them unnecessary. Not only would railroads be required to pay for a job that doesn’t need to be done, but they would also be losing out on the productivity those employees might have otherwise provided.

In a recent statement, Ted Greener, the Assistant Vice President for public affairs at the Association of American Railroads (AAR), seemed to confirm that a mandate of this nature is both unnecessary and overly restrictive. He said, “This is about the future … Railroads couldn’t go to less than two-person crews tomorrow. Crew Size mandates are preemptively restricted. The industry just wants the flexibility to change its model in the future. A legislative mandate would just be locking in current standards and not allowing for this issue to be solved through collective bargaining as it historically has.”

A legislature should not pass mandates on private industry, restraining the market and impeding innovation, without a compelling reason. Unfortunately, as was the case with HB 1048, committee members are voting in a vacuum. None of the issues raised herein were presented to committee members primarily because public testimony is not heard in Oklahoma.

It is unfair and unreasonable to expect state legislators to be experts for every bill that comes through their committees. That alone is sufficient reason to allow public testimony. Testimony provides an opportunity for legislators to hear divergent viewpoints and expert considerations. Without it, the only voices that legislators typically hear are those of lobbyists who represent the interests responsible for introducing the bill. Receiving only half of the debate is detrimental to making informed decisions and passing sound public policy. 

In my experience, Oklahoma is atypical in its refusal to open committee hearings to public testimony. I have worked with and for legislatures in no less than nine western and midwestern states. Without exception, public testimony was accepted and welcomed in each.

For example, the New Mexico legislature prioritized public testimony, even in the whirlwind of a 30-day long legislative session. It is so open that the only requirement to testify was a physical presence – no sign-in, no prior registration – just stand, express your position, and present your arguments. In Alaska, physical presence was not even required. On a couple of occasions, due to winter conditions, I testified telephonically before Alaska’s House and Senate committees. While varying in their procedure, public input is an integral piece of the legislative process in each of these states. 

Legislators are not omniscient, nor should they be expected to be. Collectively, members of a society possess a great deal of information. As a concerned citizen, I’ve raised at least a few critical issues related to HB 1048. On any given bill, there are other citizens and experts who could give the legislature access to a wealth of information through public testimony. For the sake of better public policy, the Oklahoma Legislature needs to open up committee hearings for public input. Look to Texas. Look to New Mexico. Look to Colorado. Are Oklahomans’ voices any less valuable to our legislature than Texans’, New Mexicans’, Coloradans’, or Alaskans’ to theirs? Then why does our legislature put less value on hearing them?

Brad Galbraith is Land Use Fellow at 1889 Institute. He can be reached at [email protected].

The opinions expressed in this blog are those of the author, and do not necessarily reflect the official position of 1889 Institute.

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