January 6th, 2009
Pay Legislation Bolts Out of House Gate but Faces Muddy Senate Track
The founders of the United States envisioned the House as the chamber that reacts quickly to public sentiment (the hot cup of coffee) and the Senate as the more deliberative body (the saucer that cools the cup).
Perhaps a more modern view is that the House makes a point. The Senate makes laws. As a former Senate staffer, I may be biased toward the “upper body.” But the construct that I’ve laid out applies to two bills sharing the pole position in the House.
Congress came back into session Tuesday, January 6. By Friday, the House is expected to vote on the Lilly Ledbetter Fair Pay Act, which would make it easier for employees to sue for pay discrimination, and the Paycheck Fairness Act, which would lift compensatory and punitive damage caps on pay suits.
The House is reacting quickly to a couple of developments. First, the Democratic majority has increased its numbers. Combine those gains with House rules favorable to the party in charge, and it is guaranteed that the bills will easily pass again.
Additional momentum comes from the fact that President-elect Barack Obama touted pay equity in his campaign as he sought to increase female support for Democrats and widen the gender gap with Republicans. Soon-to-be first lady Michelle Obama hosted many forums last year designed to highlight women’s issues, with these bills at the forefront.
Presumably, House leadership sees an opportunity to score political points immediately. They also believe that the bills will bolster the middle class and help working women who have not enjoyed the same pay increases as men over many decades.
Interestingly, Democrats are not starting the Employee Free Choice Act, which would make it easier for workers to form a union. That measure is fiercely opposed by the business lobby and promises to start a legislative Armageddon.
The two pay bills, however, are going straight to the floor after they’re introduced on Wednesday. There will be no hearings and no committee votes.
That doesn’t leave the business community much time to object. Randel Johnson, vice president for labor, immigration and employee benefits at the U.S. Chamber of Commerce, says the bills are examples of a “massive rewrite of labor laws” that Capitol Hill Democrats will be pushing during this session of Congress.
The proposed changes in the statute of limitations and damage caps “clearly crosses a new threshold in civil rights law,” Johnson says.
He and other business lobbyists are quick to add that they oppose pay discrimination. But they think that the bills up for a vote in the House this week are misguided.
Mike Aitken, director of government affairs at the Society for Human Resource Management, says that SHRM is open to discussing whether pay laws currently on the books are working.
“We don’t think the Ledbetter legislation or the Paycheck Fairness Act as passed in the last Congress is the appropriate approach to address pay discrimination in the workplace,” Aitken says.
Johnson and Aitken may have a better chance to make their argument in the Senate than in the House. If the House track is fast, the Senate track is muddy.
First, there are at least three seats still unsettled. Obama’s replacement in Illinois does not have the support of Senate Democrats because of a scandal surrounding Gov. Rod Blagojevich, who appointed him. In Minnesota, Al Franken has prevailed by a razor-thin margin after a recount, but the Republican incumbent, Sen. Norm Coleman, is going to file a lawsuit. And there is no replacement yet for Sen. Hillary Clinton in New York, who has been nominated for secretary of state.
It may take a while for the Senate to hit full strength. But when it does, there will be 59 Democrats, up from 51 in the last Congress. That puts the party tantalizingly close to the 60-vote threshold to break a filibuster.
The news is even better for proponents of the Ledbetter bill. Only 42 Republicans supported a filibuster last April, when it was on the Senate floor. Several of the people on that GOP roster lost their seats in 2008.
Still, the 41 remaining Republicans could persuade enough freshman Senate Democrats to join them in halting workplace legislation. That would force Democratic leadership to negotiate—and commence the tough process of making law.
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