CUPA-HR eNews

PUBLIC POLICY NEWS YOU CAN USE – February 17
February 17, 2010

Senate Confirms Solicitor of Labor, Controversial NLRB Nomination Blocked in the Senate, Healthcare Reform Still In Flux, Jobs Bill Gets Snowed In
By Josh Ulman, chief government relations officer, and Christi Layman, manager of government relations, CUPA-HR

Senate Confirms Solicitor of Labor
On February 4, 2010, the Senate voted 60 to 37 in a party-line vote to confirm M. Patricia Smith, President Obama’s nominee for Solicitor of the Department of Labor (DOL). Smith was nominated by President Obama in March 2009. Republicans, however, asked Obama to withdraw Smith’s nomination in August after documents surfaced that contradicted testimony she provided at her confirmation hearing. 

The issue in the testimony that raised concerns involved a program Smith oversaw at the New York Labor Department, which allowed labor unions to work with state officials to uncover wage and hour violations. Sen. Mike Enzi (R-WY), ranking member of the Senate Health, Education, Labor and Pension Committee, placed a hold on the nomination preventing it from moving forward without 60 votes to overcome a filibuster. Smith received those 60 votes, on February 1, just days before the new Republican senator from Massachusetts, Scott Brown, was sworn in, taking away the Democrats’ 60-vote supermajority. In her new role, Smith will represent the Secretary of Labor and the DOL in all litigation and alternative dispute resolution activities and provide legal opinions and advice for all DOL activities.

Controversial NLRB Nomination Blocked in the Senate
On February 9, 2010, the Senate blocked a floor vote on the controversial nomination of Craig Becker to the National Labor Relations Board (NLRB). Senate Democrats Ben Nelson (D-NE) and Blanche Lincoln (D-AR) voted with Republican senators in a 52 to 33 vote, bringing Democrats short of the 60 votes they needed. Becker’s role as counsel for SEIU and AFL-CIO, as well as his controversial writings in several published articles, caused many Republicans and much of the business community to have concerns. Senator John McCain (R-AZ) put a hold on the nomination after Becker’s confirmation hearing in 2009, preventing the nomination from moving forward and leading to the Senate returning Becker’s nomination to President Obama when they recessed for the Christmas break. However, on January 6, the president re-nominated Becker, forcing Democratic leadership to grant Republicans’ request to hold a hearing on the nomination. The hearing took place on February 2 and was quickly followed by a party-line vote approving the nomination out of committee two days later, on February 4. 

While Senate leadership could attempt another cloture vote at a later date, it seems highly unlikely at this point that they would be able to secure the 60 votes needed to make a second vote fruitful. This may not be end of the matter, however, as the president could exercise his authority to make one or more recess appointments to the NLRB this week during the President’s Day recess. A recess appointee may take his/her position without Senate confirmation and remain in the appointed position through the next session of Congress – which, in this case, is December 2011. To date, President Obama has not made any recess appointments, but recently announced that he will begin to do so. Presidents have used recess appointments regularly – with Bush making 179 and Clinton 139. 

Healthcare Reform Still In Flux
It has been a month since the Massachusetts special election of Republican Scott Brown derailed the Democratic healthcare reform effort and Democratic leaders are still trying to get it back on track. Hoping to pick up momentum and support for a larger bill, House Speaker Nancy Pelosi (D-CA) announced plans to proceed with a narrow bill that would remove the antitrust exemption for health insurance companies. Freshmen Democratic Representatives Tom Perriello (VA) and Betsy Markey (CO) will introduce the legislation together to show unified support for moving forward, after Perriello voted for the House healthcare bill and Markey voted against it. They say removing the exemption will increase competition. 

While the bill is expected to pass the House easily, its fate in the Senate remains unclear as the Senate opted against including the antitrust language in its larger healthcare bill. Pelosi had hoped to vote on the measure prior to the President’s Day week recess, but back-to-back snowstorms shut down Washington, D.C., last week, forcing Congress into a two-week recess and pushing consideration of the bill until the week of February 22.

President Obama has also been working to regain support from Congress and the public to proceed with an overhaul of the nation’s healthcare system. Obama has invited members of Congress from both parties to a televised healthcare summit on February 25 aimed at ending the partisan roadblocks on healthcare reform. Many Republicans and Democrats alike have responded to the invitation with skepticism that the meeting will be able to jump-start negotiations. Republican leaders have described the idea as a “less-than-genuine” public relations stunt and have reiterated their desire to move forward in a bipartisan manner but say that it cannot happen by looking at the same 2,700-page bill that will not pass the Senate and that they must start over. Democrats say it is too late to start over and feel Republicans are only interested in blocking the bill. 

The president says he is not wed to any specific healthcare bill and is “open to any ideas.” However, Speaker Pelosi’s top healthcare advisor outlined a plan on February 8 to pass a reconciliation bill, which only needs 51 votes, with the changes agreed to in early January negotiations, through the House and Senate and then have the House pass the Senate bill but have the president sign the bills in reverse order. This announcement left many in Washington even more skeptical that the president and Democratic leadership will not be coming to the February 25 meeting with a specific agenda and specific legislative text. 

Yet, Senator Judd Gregg (R-NH) sent a letter to the president on February 9 expressing an interest to help the president on healthcare reform. Gregg welcomed the opportunity to attend the president’s healthcare summit and expressed his desire to work with the president, if he is genuinely interested in Republican ideas, to move forward his proposal of a lower-cost approach focused on preventative care and guaranteed catastrophic coverage for all families he calls “CPR: coverage, prevention and reform.” Gregg is uniquely positioned to work in this capacity with the president, in that he has a background in healthcare and deficit issues and a proven ability to draw Republican votes and work across party lines. 

Meanwhile, polling numbers for the president and healthcare reform continue to drop. A new Rasmussen Reports national survey found that 61% of voters say Congress should scrap its plans and start all over again on healthcare reform legislation, while only 28% said it would be better to build on the current plan working its way through Congress. At the same time, a Gallup poll shows President Obama with only a 36% approval rating on his handling of healthcare, giving the president an uphill battle to get his top legislative agenda for the past year back on track.

Jobs Bill Gets Snowed In
Senate Majority Leader Harry Reid (D-NV) continues to work on a Senate jobs bill after the House passed its own $154 billion jobs package (H.R. 2847) on December 16. But Senate efforts have been slowed by the three feet of snow and blizzard conditions that plagued Washington, D.C., last week. Reid was unable to finalize legislation before many senators flew home before the storm and now will not be able to move forward with his bill until the Senate returns on February 22 from the President’s Day week recess.

The jobs package Reid proposed before the Senate officially went into recess on February 11 is a narrow $15 billion bill, rather than the more expansive $80 billion bill he was piecing together before the snowstorms. The narrow bill would include a Social Security payroll tax holiday for businesses that hire new workers, an extension of federal surface transportation programs, an expansion of the Build America Bonds Program and an extension for higher expensing limits for small businesses included in last year’s stimulus bill. Reid’s proposal would not include provisions many expected to see in the final jobs bill, like a three-month program renewals for unemployment benefits and health insurance subsidies for laid-off workers, which expire February 28, and renewal of $31 billion worth of expired tax breaks. Reid’s staff says the majority leader intends to move those in separate bills when the Senate returns from its recess.

President Obama held a bipartisan meeting with congressional leaders on February 9, in which he discussed a jobs bill, among other issues. The attendees reportedly found little common ground. Beyond party differences, the House and Senate Democrats have their own issues. Speaker Pelosi seems to disagree with the approach in which Leader Reid is drafting his bill and seems to hold a grudge that the Senate is crafting its own bill and not proceeding with the House-passed bill. In a press briefing after the meeting, Obama suggested it may be more “realistic” to pass a narrower bill to begin with.

Outside of Reid’s work on a jobs bill, Senators Max Baucus (D-MT) and Chuck Grassley (R-IA), the chairman and ranking member of the Senate Finance Committee, were also working on a jobs bill. Both were told they had the majority leader’s support, and thus were stunned when they released their draft language on the morning of February 11 only to be told their bill was a non-starter and hear Reid announce the Senate would be acting on his narrow bill after the break. Members of both parties and the White House were bewildered by the eleventh hour move after it seemed a bipartisan breakthrough had finally occurred. The Baucus and Grassley bill, called the HIRE (Hiring Incentives to Restore Employment) Act, would have offered a series of small business tax breaks and other tax provisions designed to draw Republican support, while also including the so-called “doc fix” for Medicare reimbursements and an extension of unemployment insurance and other benefits for out-of-work people.