EFCA Re-Introduced in Congress -- Senate Likely to Decide the Bill's Fate
A week after President Obama sent a video message to the leaders of the AFL-CIO assuring them that "[w]e will pass the Employee Free Choice Act," the bill was re-introduced in both houses of Congress yesterday (March 10). The bills, S. 560 and H.R. 1409, are essentially the same version of EFCA that was passed by the House in 2007 but then failed to get the 60 votes needed to defeat a Republican-led filibuster in the Senate. The legislation would eliminate secret-ballot elections during union organizing drives and replace them with a "card check" scheme and, amongst other things, would allow a panel of federal arbitrators to decide the terms of the first labor contract if a newly-certified union and an employer could not agree on the terms within 120 days.
There is near-unanimous agreement that the prospects for EFCA becoming law in 2009 will depend on whether President Obama, the Democrat leadership, organized labor, and other supporters of EFCA can muster the 60 votes needed in the Senate to overcome another Republican-led filibuster. (The bill is expected to pass easily in the House, and President Obama has repeatedly pledged to sign the bill into law if it makes it to his desk.) At this point in time, however, there is much debate and speculation about whether the pro-EFCA forces will be able to get the 60 votes they need in the Senate. While there are currently 56 Democrats in the Senate (and this number would increase to 57 if Al Franken prevails in the contested election in Minnesota) and two Independents who vote with the Democrats, it is unclear whether all of the Senators in the Democratic caucus will vote in favor of EFCA. It is also unclear whether any of the 41 Republican Senators will vote to enact EFCA.
Yesterday, the Wall Street Journal reported that at least six Senators who previously supported EFCA -- five Democrats and one Republican -- "now say they are opposed or not sure." The Journal article is here. The Journal article specifically identified three Democrats who may now be "on the fence" -- Mary Landrieu (D-LA), Blanche Lincoln (D-AR), and Mark Pryor (D-AR) -- although just last week Bill Samuel, the AFL-CIO's legislative director, was quoted as saying that he was "confident" that all three of these Senators would vote in favor of EFCA. The Journal article does not identify the other two Democrats who may be wavering, but it has been reported elsewhere that Senator Ben Nelson (D-NE) is now opposed to EFCA.
Yesterday's Journal article also identified Arlen Specter (R-PA) as the Republican Senator who may be wavering in his prior support for EFCA. Even if Senator Specter withdraws his support for EFCA, however, there is still speculation that some "moderate" Republicans, such as Susan Collins (R-ME) and Olympia Snowe (R-ME), may succumb to lobbying from organized labor and support the passage of EFCA.
Democratic leaders in Congress have said that the Senate will vote on EFCA before the House takes it up. Senator Tom Harkin (D-IA) said earlier this week that he hopes that the bill will be on the floor of the Senate by May. In the meantime, expect the lobbying and public relations efforts of proponents and opponents of EFCA to intensify.
For quite some time, we have been recommending that employers should take proactive steps to ensure that they are ready in the event EFCA is passed into law. Employers still seeking guidance should not hesitate to contact us.