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.

One of my regrets from my undergraduate days was that I didn’t major in economics. I was in the School of Management at Purdue University when a professor encouraged me to change my degree track.

I turned him down. Years later, I wish I hadn’t ignored Professor Hueckel’s advice. An economics education provides a compelling framework for discerning how the world works. But I did take a couple econ courses.

One of the terms I still remember is “stickiness of wages.” This is the concept that once someone has been given a raise, it’s difficult, if not impossible, to get him or her to give it up.

During the congressional debate over the auto bailout last week, Senate Republicans essentially asked autoworkers to immediately cut their wages. Part of the deal proposed by Sen. Robert Corker, R-Tennessee, would have required the United Auto Workers to lower its members’ pay by a certain date to achieve parity with the compensation offered by U.S. operations of Toyota, Honda and Nissan.

Senate Republicans claimed that car companies spend $71 per hour on labor versus the $49 per hour that foreign manufacturers pay. They demanded union concessions as one of the prices for their support of an auto industry bailout.

“We simply cannot ask the American taxpayer to subsidize failure,” said Senate Minority Leader Mitch McConnell, R-Kentucky, in floor speech during the debate.

The UAW disputes that the wage disparity is that great. The union also maintains it already made sacrifices to pave the way for a bailout. It agreed to let the car companies delay billions of dollars of payments into the fund that would cover retiree health benefits. It also shut down the “jobs bank” that allowed workers to continue collecting their pay even when they were laid off.

The unions say they went the extra mile by negotiating with Corker. But they refused to agree to the arbitrary deadline for wage parity. The union said in a statement that it “recognized that this would take time to work out and implement, using attrition programs to allow the companies to hire new workers at the lower wage and benefit rates.”

Reasonable people can disagree about whether generous union contracts have led to the near downfall of U.S. carmakers. But the wages earned by auto workers are a fact of life.

What American worker, in any industry, would have the wherewithal to immediately give up a big chunk of his or her pay? Could you do that? I couldn’t.

In the days since the demise of the bailout bill, the UAW has made its displeasure with Corker known. The only thing keeping a lid on the passion is that the Bush administration is going to use some of the previously approved federal rescue money to help the car companies.

But the bad blood between the GOP and unions will continue to boil. Leo Gerard, president of the United Steelworkers, expressed his frustration even before Senate Republicans filibustered the bill.

In a conference call last week on an economic stimulus bill sponsored by the Campaign for America’s Future, Gerard said that the recession is gutting America’s industrial base.

“There’s a whole bunch of angry and anxious [union] members out there,” Gerard said.

He warned the GOP not to scuttle the auto bailout.

“If we have Republicans that try to hold this up, we’re going to take to the streets,” Gerard said.

Republicans make some cogent and persuasive arguments that unionization raises costs for employers. But you have to wonder whether the party chose the right fight by going after organized labor on the auto bailout.

The unions may have earned sympathy during the tussle. And now they will be even more fired up to push through Congress the Employee Free Choice Act. The so-called card-check bill would make it easier for workers to organize.

Republicans and business groups have vowed to kill the bill. Their assertion that it undermines the secret ballot in the workplace might gain traction. But the GOP may find that poking labor in the eye over the auto bailout enraged its competitor—making a win on card-check a sticky proposition.
 

This week’s meltdown on Wall Street took some air out of the Sarah Palin surge. But the Alaska governor’s addition to the Republican presidential ticket is turning the heads—if not capturing the hearts—of many women voters.

As a way to counter the Palin offensive, Democrats are sending Lilly Ledbetter to the political barricades.

A bill that bears the name of the former Goodyear supervisor, who was the center of a landmark pay discrimination case, would overturn a 2007 Supreme Court ruling and allow the statute of limitations to be reset with each paycheck affected by discrimination.

The court held that such cases have to be filed within 180 days of the original discriminatory act, making it much harder for women to sue because it might take years to discover the discriminatory treatment.

The business lobby opposes the bill, saying that it would force companies to defend stale claims. Most Republicans, including presidential nominee John McCain, oppose the bill. They say it is designed to foster litigation and help an important Democratic constituency—trial lawyers.

Democrats believe that they can make political gains with women by putting the bill in the legislative spotlight. The measure, which has been approved by the House, may come up in the Senate before the end of the congressional session. It fell three votes short of overcoming a filibuster in April.

If it goes down to defeat again, blame will be placed squarely on McCain.

“McCain has a chance to right his ways with working women,” says Ellie Smeal, chair of the Feminist Majority political action committee. That statement was as much a threat as an invitation.

McCain was out campaigning in April when the Senate took its first vote. But in subsequent appearances, he indicated that he would have supported the filibuster.

He cited concerns about litigation. He also said that the pay gap between men and women could be caused by factors other than discrimination, such as education, training and experience.

Smeal takes umbrage at that argument.

“We tend to have more education and training than our male counterparts,” she says.

Smeal spoke at a September 16 event at the National Press Club in which several women’s groups endorsed Democratic presidential nominee Barack Obama. The roster included the National Organization for Women, the Feminist Majority and the Business and Professional Women Political Action Committee.

It was an exercise in stating the obvious. There was never any question that these left-leaning organizations would oppose a Republican ticket, especially one that included someone as conservative as Palin.

Ledbetter endorsed Obama at a Richmond, Virginia, event on September 17. She will appear at a September 23 Senate Judiciary Committee hearing on equal pay.

But what was interesting is that the women’s groups felt compelled to make such a strong statement. It is indicative of how important women will be in deciding the election, especially the so-called Wal-Mart moms.

That demographic includes suburban females who may not have a college education and who might have voted for Sen. Hillary Rodham Clinton in her Democratic primary bid.

Their support is up for grabs, and they may see a lot of themselves in the working-mom Palin.

The question that will be answered between now and November 4 is whether Wal-Mart moms support the policy prescriptions advocated by NOW and the other women’s organizations or by McCain and Palin.

This is the worst time of year in Washington. The heat and humidity are daily reminders of the misguided political machinations that resulted in the nation’s capital being built on what was once a swamp.

Every other year (i.e., every election year), the stultifying weather outdoors resembles the political atmosphere indoors. A lot of perspiration is produced as the remaining legislative days dwindle.

At this point on the congressional calendar, most of the activity is designed to score political points and lay the foundation for next year’s policy debate when a new Congress is seated.

For example, take pay-discrimination legislation. Democrats are trying to build on what they see as an advantageous gender gap over Republicans. I’m not implying that Democrats don’t genuinely believe that women are being shortchanged in the workplace. In their view, the correct policy prescription also is good politics.

As I wrote in my posting last week, Democrats are pushing the issue hard. Advocates are urging the Senate to schedule another vote on legislation that would overturn a recent Supreme Court decision and make it easier to sue over pay disparity.

This week, the House Education and Labor Committee approved a bill, the Paycheck Fairness Act, which would increase penalties for wage discrimination.

 That measure would allow plaintiffs to sue for compensatory and punitive damages in addition to recovering back pay. A company that pays women at a different rate than men would have to prove the practice is based on a business necessity.

The bill would permit workers to share pay information and prohibit employers from banning such discussions from the office. It also would establish Department of Labor grants for “negotiation skills training programs for girls and women.”

Some modifications of the original bill made it less stringent. For instance, in the final bill, employees can sue for disparities compared to colleagues who work for the same company within the same county. Previously, the language allowed nationwide coverage.

The change did nothing to help bring committee Republicans onboard; they hung together to oppose the measure. They said the Equal Pay Act of 1963 already makes wage discrimination illegal and that the paycheck bill would increase litigation costs while undermining recruiting and hiring.

Although the House labor committee markup on Thursday, July 24, was amiable, with Republicans and Democrats engaging in friendly banter as GOP amendments were blocked or defeated, the party-line votes demonstrate that bipartisanship on employment law is hard to attain.

The labor committee proceeding contrasted sharply with a House Energy and Commerce Committee markup of a health care IT bill earlier in the week. Democrats and Republicans forged a delicately balanced bill that was approved by a voice vote.

Don’t expect such comity on gender issues any time soon. Polls show presumptive Democratic presidential nominee Barack Obama with a substantial lead among women over GOP candidate John McCain. Michelle Obama is scheduled to announce her husband’s Blueprint for America’s Working Women and Families on Monday, July 28, in a Chicago speech.

As the economy falters, Democrats believe they will make further gains among women because they’re addressing issues like pay equity.

“There is a sense of economic insecurity for women,” said Rep. Rosa DeLauro, D-Connecticut and author of the paycheck bill. “It’s palpable nationwide.”

Republicans will have to figure out how to address those fears, if they’re going to broaden their electoral base this fall.

I have worked in Washington for 15 years. Of course, we insular Washingtonians believe that the United States—well, OK, the world—revolves around what we do in the nation’s capital.

That may be true. But sometimes you have to travel far away to get a sense of what could be percolating here. For instance, the Pensions & Investments Defined Contribution Conference in San Francisco last week provided insight about the potential path of a bill that would increase the transparency of 401(k) fees.

The luncheon keynote speaker on October 8 at the P&I conference was originally supposed to be Rep. George Miller, D-California and chairman of the House Education and Labor Committee. Miller’s speech was highly anticipated because he would be discussing his 401(k) fee legislation to the industry that would be directly affected.

It would have been a skeptical audience. Earlier in the day, James Delaplane, a partner in the benefits group at Washington law firm Davis & Harman, criticized the Miller bill for being too stringent on its disclosure mandates and a threat to investor confidence.

Well, Rep. Miller sent his regrets and asked Rep. Robert Andrews, D-New Jersey, and chairman of the subcommittee on pensions, to take his place. Andrews, one of Miller’s key allies on the panel, did stand in for the chairman—but he didn’t exactly stand with him. Perhaps this is a sign that there is wiggle room on the bill.

Andrews was supportive enough that his speech could not have been delivered by Rep. Howard “Buck” McKeon, R-California and ranking member of the labor committee. But Andrews’ remarks may have drawn a few “amens” from McKeon.

Andrews didn’t give Miller’s bill a big bear hug. He sort of patted it on the shoulder. “Bills are the beginning of a legislative process, not the end,” Andrews says. He described the Miller measure as “only a starting place.”

He said that a bill “should not be a solution in search of a problem.” Instead, “any legislation should go forward if we build the record of a need for legislation.”

So far, Andrews isn’t convinced that there is systematic overcharging of 401(k) fees. “My initial reaction is there isn’t,” he says.

He also expressed skepticism about mandating that an index fund always be an option in 401(k) plans—another key component of the Miller bill. “I favor investment advice, not favoritism,” Andrews says.

The New Jersey congressman, who seemed to indicate his interest in running for the Senate one day, denied that he is splitting with Miller on the 401(k) fee issue. “What he did was initiate a process,” Andrews says. “We’re going to need bipartisan support. The chairman shares that view and there is no daylight [between Andrews and Miller].”

Perhaps not. But by declining to fully embrace and defend Miller’s approach, Andrews may have been signaling that negotiations are possible on a bill that, as currently written, would require itemization of at least 12 expenses for each investment option.

Industry advocates say Miller’s approach could overwhelm participants with too much information and potentially scare them away from retirement saving.

“It takes a very granular, line-item, disaggregated approach to fees,” Delaplane says.

Andrews, like most people representing the industry at the conference, agreed that greater 401(k) transparency is needed. He outlined the key questions for legislation to address:

• What should be disclosed?
• To whom should it be disclosed?
• What should be disclosed as opposed to what should be made available if requested?
• Should an index fund be mandated?

But Andrews did not frame 401(k) fee legislation in the language that Miller often uses. The California Democrat asserts that opaque fees are undermining retirement security and contributing to the “middle-class squeeze.” Andrews never uttered a word about the “squeeze” during his San Francisco speech.

Andrews, Miller, their Democratic and Republican colleagues and many, many industry lobbyists will be weighing in on the questions Andrews posed over the next few months in Washington. Perhaps we’ll see some compromising on both sides, if Andrews’ presentation thousands of miles outside the Beltway is any indication.