Reader Comment

A reader writes:

So here's what I think is going to happen:

A committee of conservative Democrats (Feinstein - CA, Specter - PA, Pryor - AR) is now meeting regularly to come up with a compromise that will get them 59 cloture votes. This will most likely include at least some of the following: baseball-style arbitration instead of gov't-appointed arbitrator with creative powers, mail-in ballot instead of card-check/majority signup, stiffer penalties for ULP's (unfair labor practices), and an accelerated election calendar. When Al Franken gets seated to make it 60 votes for cloture, conservative Democrats draw straws to see which 10 of them get to take the low road and vote against the bill or not vote at all.

Then Labor will decide what companies, like WalMart, are still viable targets to organize under the new law.

As the saying goes, the devil is in the details, and I think the detail here is going to be cloture votes. As a former foil of mine once said, "Getting in the meeting is easy. It's the meeting before the meeting, where the decisions are made, that's the tough invite." I think his words are especially instructive in this case.

From reading the news and what few whispers I get from the Hill, it's safe to say that negotiations along the lines of this reader's description are taking place. All these compromises sound like concessions labor could live with, and might be proposing. But before this group meets, there are the innumerable meetings with business lobbyists, and I still believe a lot of this will come down to which side can exert the most leverage. I've seen nothing that would lead me to believe that labor can exert more pressure than business, or that labor's willing to exert as much pressure as business.

I think there are senators, and I think Specter is one of them, that are actually looking for a compromise of sorts. In a blue state like PA, where even in Specter's heart of hearts he's got to suspect that this will be his last race, he can afford to agree to a compromise of sorts, or put differently, he will probably negotiate in good faith.

But, for every Specter there's a Blanche Lincoln, and she's not voting for cloture. She's expressed huge concerns over the bill's two primary provisions and hails from a state that Obama didn't win. I've seen nothing she's said (or even in the subtext of what she's said) that makes me think that she's voting for cloture on this bill. The same could be said of Pryor, who's been less adamant in his opposition, but no where close to an active supporter. It's critical to remember, that if you lose one of those two, 60 votes is gone as things stand now. Are there any Republicans in those meetings my commenter mentioned? Maybe Collins and Snowe. Maybe Voinovich. All three have either voted against it previously, gone on record opposing it or both. And what if you can't get either of the Arkansas duo to come around? Now you need two of those three. We haven't even discussed Nelson or Bayh yet. You'd have to give them an arm and a leg to give you a cloture vote, and that's if you somehow made it to 58-59. Now that I think about it, that might be a clever way of describing the problem. There are 10 moderate Dems that would be happy to give you the 60th vote, but none a single damned one of them will give you the 59th.

In summation, I think my reader's take is dead on, I just don't think those discussions will yield 60 cloture votes in this Congress. I think the one thing that might conceivably shift the current balance is an aggressive push by President Obama, but there's no indication he sees labor issues as a high priority, or that labor is interested in trying to make him.

Harkin Grows Impatient

Courtesy of TPM's Brian Buetler, it appears that Tom Harkin, EFCA's primary sponsor, is becoming less patient with the growing group of EFCA equivocators, and is threatening to force an up or down vote unless they work harder on a compromise.

As I wrote a couple of days ago, some of those arguing for a compromise aren't doing so in good faith. I disagree with Buetler's assertion that Blanche Lincoln "...may ultimately need union support to prevail." Right now, there are no serious obstacles to her reelection, and a strong argument can be made that the only way a strong challenge emerges is if she flops on EFCA. She's garnered the tacit support of the Arkansas business establishment, and knows labor's not strong enough to derail her.

It's still my belief that for every compromise that gets made for an up-and-down vote, another Senator will appear from the ether to declare their previously unspoken concern to one provision or another. This whip count from Politico is a couple months old, but there's uncertainty all over that board, even with former sponsors.

Harkin's threat is idle. The inertia to wait for the next Congress will become unstoppable, especially once the environmental and health care talks progress. Forcing an EFCA vote would alienate the exact moderate Senate Dems whose support will be needed to pass the signature items on Obama's agenda.

The only factor that could change any of this is labor's response to their signature issue being put on the back-burner. Labor's die has yet to be cast, and they might have the power to influence that aforementioned inertia, though I think a lot of the paths before them are risky.

I actually think a meaningful corollary can be drawn between what's happening to labor and what's happening to the LGBT community, where the 'right time' to advance their respective agendas is always tomorrow. The powers of both support and opposition to those agendas are quite different, but the similarities in the dynamic are worth noting.

I know those last couple of paragraphs are a bit cryptic, but I hope to engage the strategic options labor has moving forward over the course of the next day or two.

Update: This quote from a Politico article today belies my point about the soft support for EFCA in the Democratic caucus:

But finding that magical middle ground won’t be easy: Business groups have already rejected compromise proposals floated by Specter last week. They also question whether Harkin and Specter are consulting all of the key moderate Democrats whose votes will be critical to overcome a Republican filibuster.

The Meaning of Blanche Lincoln's Defection

Until now, support for EFCA has fallen primarily upon party lines. Most Democrats have been supportive, while nearly all Republicans are opposed. With the Democratic majority in the House, it passage in present form would be nearly certain.

President Obama signaled his support for the bill during the campaign, though it appears more and more as though that support is of the 'I'll find the courage to lift the pen and sign the legislation if it shows up my desk' variety. Suffice to say it's not a meaningful part of the administration's agenda at this point.

Which leaves everything up to the Senate. It's been clear for quite some time that 60 votes don't exist for the bill in its present form. Most of the public opposition to the bill has been on the 'card check' provision, with quite a few elected officials and organizations echoing Rep. Tom Price (R-Ga) in labeling it the "Secret Ballot Destruction Act".

Recently though, we've seen Arlen (I was for EFCA, before I was a against it, before I was kind of iffy about it) Specter (D-Pa) say things like:

“I’m opposed to giving up the secret ballot or mandatory arbitration as they are set forth in the bill, but I do believe that labor law reform is past overdue."

Now, just last week we've saw Sen. Blanche Lincoln (D-Ar) coming out against EFCA, not on card check grounds, but on the section dealing with binding arbitration. This is significant for two reasons. First, as I mentioned in my EFCA explanation post, the binding arbitration section in EFCA is probably the most important provision to both labor and business. It hasn't received the hype of card check only because it's more difficult to explain and didn't fit into rhetoric about the sanctity of cherished American institutions. Translation: it's harder to make a 30 second TV ad with that binding arbitration as your straw man.

Secondly, and far more importantly, this now creates a fourth camp. Until now, you had perhaps 50 senators supporting EFCA in its present form, 38 senators in opposition, and 10-12 (nearly all of them Democrats) that had been hesitant to openly support the bill, but were perhaps open to some kind of 'compromise'. With Lincoln foraging the way, the compromise group has now been split into two camps -- those hellbent in their opposition to card check, and those hellbent in their opposition to binding arbitration.

This might sound wonky and complicated, but this is the defining development for EFCA right now. Multiple compromise camps will provide cover for moderate Democrats who want to oppose real labor reform, but count on labor to get them elected, and can't politically come out against EFCA. It also frames the debate poorly for Democrats in general, who can claim individually that they're in favor of 'compromise' while creating conditions under which compromise is impossible. I'll write far more about this soon, but this also frames the issue poorly for labor, as they'll probably be forced to take a hard line stance against those moderate Dems who refuse to wholly endorse EFCA.

Over the course of the next weeks and months, and probably into the next Congress, you can count on members of the Senate dividing themselves almost equally into these compromise camps, and subsequently refusing to budge on the one provision they just can't live with.

I'll be writing a lot more about this angle soon, but it's right to view this development as completely derailing EFCA in this Congress, and perhaps even putting it behind the curve in 2010. To the degree that this was in any part a coordinated strategy by groups opposing EFCA, I think it's brilliant.