by David S. Fortney and J. Robert Brame
Editors, Federal Employment Law Insider
The historic 2010 elections for the 112th Congress will significantly alter how Washington operates. The Republicans gained more seats than during any election since 1948, and we now move forward with a politically divided government following two years of Democratic control of both houses of Congress, plus the presidency.
The House of Representatives will experience the most dramatic change with the Republicans gaining at least 60 seats, resulting in a change in control from Democrats to Republicans and with a small number of seats still undetermined. Current House Speaker Nancy Pelosi (D-California) will be replaced by John Boehner (R-Ohio), who will lead the new Republican majority in the House. With 218 seats required for the majority, Republicans already hold a confirmed 239, which allows for a considerable cushion on controversial issues.
The Senate will remain in Democratic control, although with diminished margins. With one elections still not called, the Republicans have already gained six seats, resulting in a current tally of Democrats holding 53 seats and Republicans holding 46. The results for the senatorial election in Alaska still must be sorted out, to determine whether Senator Lisa Murkowski’s effort to be reelected as an Independent write-in candidate after she was upset in the Republican primary by Tea Party-promoted candidate Joe Miller.
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Congress’ agenda will change — the White House no longer will exclusively call the shots. At this point, we have two key sessions:
- First, the final session of the current 111th Congress will conclude with the 2010 lame duck session, starting this week.
- Then, in January 2011, the newly elected members of the 112th Congress will be sworn in, and Republicans will control the House.
Republican control won’t be as complete as was Speaker Pelosi’s, but they will name every substantive committee chair and determine the majority members of every committee. As a result, bills will get to the White House only with the Republican majority’s acquiescence.
In the Senate, Republicans can substantially affect the agenda because the smaller Democratic majority will no longer have even a credible hope of invoking cloture to end a Republican filibuster. Republicans have gained six of the 10 seats necessary for control. The nearly solid Republican block, which stood firm against major Democratic labor and employment innovations (excepting only the Lilly Ledbetter Act), may loosen under a softer appeal by the Obama administration. The election of new, conservative senators and loss of high-profile liberals, however, will shift the overall Senate balance in a more pro-business, conservative direction.
Lame-duck session
This week’s lame-duck session could address a number of issues, and at this point the result is highly unpredictable. The setting is unique with at least 60 Democratic members of Congress and six senators having been “fired” but retaining the opportunity to cast votes on significant budget, tax, and social issues not addressed before the election.
Leading the list for up-or-down votes will be the federal budget for the current fiscal year and an extension of Bush era tax cuts. These tough votes were deferred before the election by adopting a continuing resolution. In the lame-duck session, the House is expected to address the budget for each agency and whether to increase the federal deficit.
House of Representatives. The Democrats will still retain their controlling majority in the House during the lame-duck session. With the House’s organizational structure, the Democrats will have a strong, but no longer absolute, hand. The difference may lie partly among the so-called “Blue Dog” Democrats, those border-state and southern Democrats who viewed themselves as being more “moderate” than the Democratic majority. Two dozen of the more than 40 Blue Dog Democrats lost their reelection bids, most for having “drunk the Kool-Aid” of a number of controversial legislative initiatives pushed by the Obama Administration and Speaker Pelosi.
The Blue Dog survivors, many of whom had near-death experiences, will be far less willing to drink the Kool-Aid. Defeated members, who cast fatal votes under a promise of substantial reelection help (which either was insufficient or, for many, was pulled because of their dropping poll numbers), will be less persuaded by the threats and enticements of Speaker Pelosi. Some could be offered high positions within the administration, but neither the withholding of promised campaign support nor Obama’s single campaign appearance for a representative will be lost on them.
In the end, the Democratic majority will probably hold, but the more controversial bills will face heavy seas if they lack broad national support.
Senate. Clearly, Senate Democratic leadership had anticipated a number of critical votes in the lame-duck session. At least 10 separate bills have been queued up, including (1) the Paycheck Fairness Act (PFA), (2) a proposal to limit arbitration, and (3) Majority Leader Harry Reid’s promised vote on a bill to require state recognition of police and firefighter unions.
The so-called Paycheck Fairness Act (PFA) is the most problematic. It would substantially expand the remedies available to plaintiffs and make it much easier to pursue employment discrimination claims. It has much broader support than the Employee Free Choice Act (EFCA) or public employee recognition. It already passed in the House, and Obama has promised to sign it if it passes the Senate.
Unlike the situation in the House of Representatives, three Senate seats were expected to be filled immediately by the certified winners in West Virginia, Delaware, and Illinois. The Illinois seat was won by a Republican, but it now looks as if partisan policies in that state may well delay the necessary certification of Senator-elect Mark Kirk’s victory until after the lame-duck session, so the expected gain of another Republican Senate seat in the lame-duck session hasn’t materialized.
Republican Senator Murkowski lost in the Alaska primary but ran as a write-in candidate. The uncounted write-in ballots exceed the Republican candidate’s votes, so the odds are that Senator Murkowski will win. The Republicans and their senatorial leadership did not deprive her of committee assignments. She promised to caucus with the Republicans and likely won’t break ranks out of revenge.
On employment issues, Maine’s two Republican senators can never be assumed to stay in ranks, especially with the PFA. Offsetting that, however, is the memory of the recent conservative/Republican tsunami and the fact that 23 Democratic senators will be up for reelection in 2012. Having seen long-term Democratic senators such as Russ Feingold lose and others barely survive expensive reelection campaigns may convince Democratic senators from red or nearly red states to be absent when their leadership tries to force cloture votes on controversial bills.
As with the Lilly Ledbetter Act, the debate over the PFA isn’t a pure “union” vote and is more difficult to assess. The business community is mobilizing opposition. Prospects are uncertain and will depend on which side can mobilize the broadest public support in the three-week session.
Bottom line: more negotiating
When the 112th Congress convenes in January, the new Republican members will be in place and the legislative agenda is certain to change. That is when the leadership and committee assignments will be determined, which will be critical in deciding how business is conducted.
Addressing new programs to promote employment will be one of the first orders of business. Similarly, the Republicans will lead an effort to repeal or modify the health care reform bill. At a minimum, there may be revisions to the bill, but a wholesale repeal is unlikely because of the inevitable presidential veto and Republicans’ inability to muster enough votes to override it.
The dynamic of the Republicans being able to control the House agenda and influence Senate considerations may result in some bills being enacted. We expect, however, that President Obama will use his veto to reject bills he doesn’t want. Republicans’ inability to override the veto may result in only negotiated bills ultimately being enacted.
There are additional steps that Republican members of Congress may take to attempt to influence the Obama administration’s agenda:
- By controlling the House, Republicans will have significant input on the budget and the ability to control program funding, e.g., whether the new health care requirements are implemented.
- Specific riders can be included in the budget that restrict or dictate how programs will be administered or whether regulations are put into effect.
- The House also is likely to conduct more vigorous oversight of federal agency operations by subpoenaing records and compelling agency heads to testify under oath and cross-examination. If done well, it shouldn’t be underestimated as a check on administrative activism.
Additionally, the Senate’s confirmation of judges and agency leadership will remain in Democratic control, although the Republicans’ ability to filibuster may require that compromise nominees be offered. With respect to more controversial nominees, such as Craig Becker (who has a recess appointment to the National Labor Relations Board), it’s increasingly unlikely that the Senate will confirm such nominees.
Finally, the political abilities of the leaders will be tested in the new Congress. President Obama has demonstrated his abilities as a successful campaigner on a national stage. Speaker Boehner is untested on a national stage. Both will be trying to demonstrate why their respective party should be reelected and given expanded responsibilities and leadership in the 2012 elections based on their track records during the next two years.
David S. Fortney is co-founder of Fortney & Scott, LLC, a Washington, D.C.-based, woman-owned law firm. He counsels employers and executives on a wide range of employment and labor matters and can be reached at (202) 689-1200. J. Robert Brame is a partner with McGuireWoods LLP in Washington. He has more than 35 years of experience in litigation and counseling and can be reached at (202) 857-1718. As editors of Federal Employment Law Insider, they will analyze and report on the lame-duck session’s work – particularly regarding key employment law issues such as the Paycheck Fairness Act — in a future newsletter issue.