Jottings By An Employer's Lawyer

Tuesday, March 03, 2009

EFCA - Strongarm Majority Leader Reid?

Last week I spent Thursday and Friday at a seminar sponsored by my firm and a number of trade associations in DC about the Obama administration and Congress as it impacts labor and employment law. Obviously, one of the key topics addressed by a number of speakers and panelists was the Employee Free Choice Act, affectionately known as EFCA. The seminar was unique in that it had representatives from both sides of the aisle, government officials like Wilma Liebman, now the chair of the NLRB (who did not take a position on EFCA), congressional staffers and journalists.

Clearly everyone at the conference sees EFCA as a major issue that will be a major fight between organized labor and the business community when it is brought to the floor. Caught in the middle are the Obama administration, which supports EFCA but has plenty on its plate and really would like to avoid a huge, bitter fight with the business community if it could avoid it, and certain Democratic senators who are beginning to feel the squeeze put on them between their conservative constituents and organized labor. Another Senator on the spot is Arlen Spector (R - PA) who is faced with a threat from the Republican right if he votes for cloture as he did in the last Congress. See David Yglesias suggestion for a novel way out, Specter’s Dilemma.

The consensus, and that probably is too strong a word, seems to be that the business community has done a better job than expected of organizing opposition to EFCA and that right now is probably ahead, but it's a long term fight and still could go either way. A compromise bill remains a distinct possibility and something that the Administration, at least, would likely welcome. But I don't think anyone is betting their share of TARP money, or even lesser sums, on what may ultimately happen.

Since returning to Texas the stories I have read, albeit in the blogosphere, have re-enforced those views, with an article in the Huffington Post quoting Andy Stern:

"In the end, we have to pass this bill in the House and the Senate. I'm not a congressional strategist," he said, "[but] I would say that in the end both houses are going to get to vote. And whatever way makes sense -- where it starts and where it ends is really not that important, as long as in the end everybody understands the importance of getting this job done. Which I believe they do."

in what some viewed as an indication he is settling in for a longer term fight. Several other stories about labor fearing it is losing some of the Democratic senate votes it will need, added to that view. See Worry Grows Over Dem Defections on EFCA and Boulder Democrats. (Everyone agrees that the fight is over cloture in the Senate, which will take 60 votes. The bill will pass the House, will pass the Senate if you can get over cloture, and will be signed by Obama if it passes both Houses of Congress.)

Then in today's Huffington Post is an article by David Sirota which advocates labor giving Senator Harry Reid an ultimatum: either schedule a vote and corral the 59 Democratic votes for cloture, or face a labor funded candidate that would ensure his defeat in his 2010 re-election bid, even though it meant allowing a Republican Senator to win. Threatening to End Reid's Career in 2010: The Best Chance to Pass EFCA.

Although I don't know where Sirota ranks in the supporters of EFCA, to even see such an idea floated makes me think that there really is some truth to the softness of support for the bill on the Democratic side.


After having attended the conference, which was great by the way, and listening to a panel discussion including Patrick Szymanski General Counsel for Change To Win, it seemed pretty clear that in the minds of CTW there is little to compromise upon. It will be interesting to see how this all progresses.
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