Late in the evening on November 7, I was driving through McLean, Virginia, listening to C-SPAN Radio coverage of a press conference by House Democratic leaders following the chamber’s narrow approval of a comprehensive health care bill.

At the time, it’s likely that I was passing the large homes of at least a couple business lobbyists who live in the tony Washington suburb.

No doubt they were still up and following closely the House vote that occurred during the 24th hour of that fall Saturday. They must have been relieved by the outcome.

Despite having 258 members, the House Democratic majority garnered only two votes more than the minimum to pass the bill—and one of those was from a Republican representing a liberal district. The employer mandates contained in the measure, along with its other provisions, are on somewhat shaky ground.

The legislation has something less than irresistible momentum as it heads into conference committee negotiations with whatever Senate bill emerges. As my colleague Jeremy Smerd points out, employers have a better chance of getting what they want in the Senate.

Business community criticism of the House health care measure is similar to what I heard at recent hearings on bills that would provide workers with paid sick days and prohibit sexual-orientation discrimination in the workplace.

Employers are leery of Washington telling them how to run their businesses and manage their employees. They want the flexibility to design health care and leave policies that best fit their workforces.

“SHRM has strong concerns with the one-size-fits-all mandate encompassed in the Healthy Families Act [the sick leave bill],” said Elissa O’Brien, vice president of human resources at Wingate Healthcare, who testified at a November 10 hearing on behalf of SHRM. “At a time when employers are facing unprecedented challenges, imposing a costly paid leave mandate on employers could easily result in additional job loss or cuts in other important employee benefits.”

O’Brien outlined her Needham, Massachusetts-based company’s generous paid-time-off policies. SHRM asserts that employers like Wingate should be exempt from federal leave directives.

At the November 5 hearing on the discrimination bill, witnesses acknowledged that the vast majority of Fortune 500 companies have policies that protect homosexual workers, who are seen as a key component of the talent pool.

Most Democrats in the House and Senate majorities, however, don’t want to depend solely on the market to provide sick days to employees and protect them from discrimination. They believe that achieving those social gains requires the intervention of Congress and the courts.

In some cases, they may be right. In other cases, they may be imposing overbearing government.

But it’s hard to deny one of their ripostes to employer criticism of the legislation: The economy has consistently prospered even after companies have warned that particular bills would undermine their ability to turn a profit.

At the hearing on paid sick days, Rep. Rosa DeLauro, D-Connecticut, noted that business was in a lather about the Family and Medical Leave Act before it was signed into law in 1993. There were predictions of job losses and other setbacks.

“We haven’t seen that to be the case with FMLA,” DeLauro said.

Another frequent argument against employment legislation is that it will open the floodgates to lawsuits. Sen. Al Franken, D-Minnesota, pushed back against that trope, noting that Minnesota has had a sexual-orientation discrimination law in place since 1993 and has not had its courts filled with related cases.

“Minnesota’s sky has not fallen,” Franken said at the November 5 hearing.

Employers sound convincing when they say that FMLA causes administrative nightmares. Heads nod when they maintain that some employment laws generate costly lawsuits.

But if their arguments are going to resonate in a Congress with strong Democratic majorities, they have to show examples of real job losses or investment that was spiked because of Washington mandates.

Otherwise, the natural skill, resilience and ingenuity of American corporations fosters the notion that they can survive any bill that comes out of Washington.

On Monday, October 26, Senate Majority Leader Harry Reid may have initiated a turning point in health care reform.

He indicated that a government-run insurance program for people under 65, a so-called public option, would be included in the measure that goes to the Senate floor next month.

Now Washington pundits are furiously doing the math, trying to figure out whether Reid, D-Nevada, has 60 votes to overcome a filibuster and send a sweeping health care bill to President Barack Obama’s desk. Of course the House will play some role as well.

This routine has been a staple of capital life since last November. That’s when Democrats took control of the White House and increased their margins in the House and the Senate, where their caucus has reached a filibuster-proof 60 members.

Every time a major piece of legislation comes along, there is the mandatory calculation to figure out whether Democrats can come up with 60 votes, either by holding their own ranks together or drawing in a couple Republicans.

But winning elections has another—and perhaps more profound—effect on governance when one party controls both the Senate and White House. Its nominees for administration positions are almost certain to be confirmed.

Personnel is policy, goes the Washington saying. The reason that aphorism has been repeated to the point of becoming a cliché is because it’s true. One of the most cherished spoils of political victory is determining who serves at government’s highest levels.

In the polite society of the Senate, the rule in the past has been that a president pretty much gets to appoint the nominees of his (one day “her”) choice unless they have a criminal background or are otherwise egregiously unfit for office.

But Obama’s rival for the White House, Sen. John McCain, has halted the confirmation process for one of the president’s nominees for the National Labor Relations Board because of policy differences.

In an October 21 hearing of the Senate Health, Education, Labor and Pensions Committee, McCain opposed Craig Becker, who currently serves as associate general counsel for the AFL-CIO and the Service Employees International Union.

Echoing Becker criticisms from the business community, McCain expressed qualms about some of Becker’s articles about labor-management relations. The Yale Law School graduate doesn’t mince words when it comes to organizing in the workplace.

In an excerpt from a 1993 University of Minnesota Law Review article highlighted in a U.S. Chamber of Commerce letter to the HELP Committee, Becker writes that “employers should be stripped of any legally cognizable interest in their employees’ election of representatives.” With his trademark irascibility, McCain first insisted on a roll-call vote on Becker. Sen. Tom Harkin, D-Iowa and HELP Committee chairman, said that NLRB nominees are typically voted on as a bloc. Becker was being considered along with two others.

But Harkin acquiesced and allowed a separate vote on Becker. “How generous of you,” McCain sneered through a smile.

Becker was approved by a 15-8 vote, but McCain vowed to block a Senate floor vote by placing a “hold” on him. It is the prerogative of each senator to put a hold on any nominee for any reason.

McCain said that all the commotion could have been avoided if Harkin had agreed to a hearing for Becker. Harkin responded that it is Senate tradition not to conduct hearings for members of the NLRB other than the chair.

Sen. Mike Enzi, R-Wyoming, also voted to uphold Senate tradition. He approved Becker along with all the other nominees in the package that was presented to the HELP Committee on October 21.

It may be true that Becker deserves more scrutiny than the usual NLRB nominee. Several senators would like to know whether he still holds what some call “radical” views of labor-management relations. Others want to know what role Becker may have played in the vote-buying scandal that drove former Illinois Gov. Rod Blagojevich out of office.

But there was a more straightforward way for McCain to put the kibosh on Becker. He wouldn’t be hassling with this nominee if he had won the White House in November. It’s one more reason why elections matter.

Not much was accomplished legislatively during the first day of the Senate Finance Committee’s formal work on a health care reform bill on Tuesday, September 22. But by the late afternoon, the political fault lines were clear.

Sen. Max Baucus, D-Montana and chairman of the panel, really has only one hope for securing a Republican vote. Sen. Olympia Snowe, R-Maine, seemed to have an open mind about the $774 billion bill. Keeping Snowe on board, however, might require patience from Democrats who are champing at the bit to get to the legislating—or voting—on health care reform.

Snowe made clear in her opening statement that one of her priorities is ensuring that the measure will not increase the burgeoning federal deficit. The Congressional Budget Office estimated that the original Baucus bill, introduced on September 16, would reduce the deficit by $49 billion over 10 years.

But during the past week, Baucus has modified his original “mark” to accommodate concerns from his Democratic colleagues. The bill doesn’t include a government-run public insurance option or an employer mandate—two policies that congressional liberals cherish. Some Democratic senators worry that the Baucus bill would impose too high a premium burden on middle-income individuals and families.

The chairman revised the underlying legislation to increase the health care tax credit for purchasing coverage on a national health insurance exchange; lowered the “affordability” test for employer-sponsored insurance to 10 percent of an employee’s income from 13 percent; reduced the penalty imposed on people who don’t buy health insurance; and increased the threshold for the excise tax on high-cost insurance plans.

Baucus intends to “pay” for these changes out of the bill’s $49 billion surplus. But they are just the beginning of the revisions to the bill. Over the next few days, the committee has to wade through more than 500 amendments.

The final product may have a different price tag, if not a completely different look, from the original. Snowe wants to know exactly what Congress is paying for before voting the bill out of the committee.

“I hope we will have the opportunity to review the final mark and revised CBO estimates on the bill as amended—before we move to any final vote,” she said. “We simply cannot address one-sixth of our economy, and a matter of such personal and financial significance to every American, on a legislative fast track.”

President Barack Obama also has the deficit on his mind. In his September 9 address to Congress, he guaranteed that the final health care reform effort will not add a “dime” to the federal deficit.

But Obama and Democratic leaders—as well as Baucus—are eager to get to a vote by the full Senate. That can only occur after the Finance panel approves its bill and the measure is merged with a bill approved over the summer by the Senate health committee. Baucus wants to move the process along by finishing the Finance markup this week.

The timeline is causing Republicans other than Snowe to throw in the towel. Snowe and Sens. Charles Grassley, R-Iowa, and Mike Enzi, R-Wyoming, were members of the “Gang of Six” who had been negotiating the bill with Baucus for months.

But Grassley is not satisfied with the outcome so far.

“That artificial deadline pushed us aside and put an end to that bipartisan work before it could produce a bipartisan bill,” he said. “It seems that the White House and the leadership were never really going to give it time to do it right.”

That timetable for the Finance bill could be slowed, however, by the CBO. Director Douglas Elmendorf testified at the September 22 markup that the agency requires at least several days, perhaps as much as two weeks, to determine the effect of hundreds of amendments on the cost of the bill.

That answer didn’t sit well with Baucus, who displays equanimity even in tense circumstance. But Elmendorf’s answers caused him to wince, even growl slightly.

“We’ll figure a way out of this box,” Baucus said.

But staying inside the box may be the only way to placate Snowe. So far in Obama’s “post-partisan” Washington, bipartisanship means getting Democrats and Snowe to back a bill. Democrats may have to wait for her to get the answer she wants about the cost of the health care bill.
 

 August is a month of respite for Washington. Endless political fights continue but the battlefield moves back to the states and districts of members of Congress.

The traffic and decibel level ease in the capital as people take their summer vacations. The quirk in the calendar this year extended the August congressional recess into the first days of September.

But the Workforce Management beat was busy this week. Organizations on the left and right—the AFL-CIO and the U.S. Chamber of Commerce, respectively—hosted Labor Day briefings. Individual experts also weighed in on the state of the U.S. employment market.

In the midst of the predictable rhetorical tussle over the Employee Free Choice Act, the bill that would make it easier for workers to form unions, there was a surprising moment of convergence between labor-leaning representatives and those who favor management.

It was on a topic that concerns both sides: How to ease worker anxiety about the wrenching changes wrought by global economic competition. They agreed that one answer is to make sure that workers receive their fair share of the productivity gains they produce for their employers.

Productivity is profit. If a company makes better products or delivers better service quicker and more cheaply than its competitors, it will win market share.

But over the last several years, the people who have reaped the vast majority of the gains are executives and shareholders. Wage disparity between the top of corporations and the middle and bottom is accelerating. The resentment of middle-class workers—and voters—has manifested itself in political pressure on Congress to rein in executive pay.

The answer from organized labor is to give workers more leverage through unionization.

“The fastest, the surest and the most effective mechanism for raising workers’ wages is the collective bargaining process,” said Richard Trumka, AFL-CIO secretary treasurer, in a speech at the Center for American Progress in Washington on August 31. “Increasing productivity only raises wages when workers have bargaining power. Take bargaining power out of the equation and you’ll still generate wealth—but it won’t get into the hands of the people who created it.”

Trumka’s answer to this dilemma—passage of EFCA—is anathema to the business community. But he also is using this argument in part to appeal to younger workers he is trying to bring into the labor movement. They are the ones who are the most technologically savvy and will deliver many of the productivity advances that corporations seek.

On September 2, I attended a book launch at the Center for Strategic and International Studies. Grant Aldonas, former undersecretary of commerce for international trade, introduced Globalization and the American Worker: Negotiating a New Social Contract.

Aldonas, principal managing director of the consulting firm Split Rock International and a veteran of Republican administrations, spent part of his presentation focusing not on social contracts writ large but on labor contracts.

He made a similar argument to Trumka’s. Look at Page 18 of his PowerPoint. Aldonas calls for “aligning the interests of workers with the long-term interests of their firms” through “contracts that ensure that workers profit directly from the productivity gains they create.”

Aldonas criticized EFCA as misguided. But he did not trash unions in general.

He asserted that the only way for workers to achieve a higher standard of living is through acquiring the skills demanded in the global economy.

One of the best providers of such training in Aldonas’ view is unions. “Labor makes a much more profound investment in human capital than people realize,” he said. “We ought to honor that.”

Almost everyone agrees on the need to bolster education and training. Business and labor should step away from the battle over EFCA long enough to figure out how they can collaborate to strengthen the U.S. workforce.

Post-election jubilation among Democrats last fall as they achieved huge House and Senate majorities is melting into the reality of governing during the dog days of summer.

The House has already departed Washington to begin its summer recess. The Senate’s break is set to begin on Friday, August 7.

Each chamber has missed the deadline set by President Barack Obama to pass health care reform bills before leaving town for their summer getaways. The delay can be attributed in part to Republican resistance and to fissures within the Democratic Party.

In order to achieve their majorities, Democrats wisely extended their tent. The head of their House campaign arm in 2006—Rahm Emanuel, who is now White House chief of staff—recruited moderates who could win conservative-leaning districts. Many of those victors became members of the Blue Dog Coalition.

Now the Blue Dogs are barking on health care legislation. Several of them who sit on the House Energy and Commerce Committee were successful in getting the panel to include amendments that would lower the cost of the measure and allow negotiated reimbursement rates in a government-run insurance option, rather than setting them based on Medicare rates.

Their intervention inflamed House progressives—formerly known as liberals. Just before the House broke for recess, 57 members of the Congressional Progressive Caucus sent a letter to House Speaker Nancy Pelosi, D-California, asserting that the Energy and Commerce agreement would reduce subsidies for the poor and middle class.

“In short, this agreement will result in the public, both as insurance purchasers and as taxpayers, paying ever higher rates to insurance companies,” the letter states.

Moderate and liberal Democrats will now have to wrestle a final House bill to the ground. The commerce, labor and tax committees have approved measures with varying kinds of employer mandates and public options.

In a July 30 press conference, which was held outdoors despite 90-degree temperatures and high humidity, leaders of the progressive Democrats warned that they would oppose what they called a watered-down bill.

“We want a plan with a meaningful public option,” said Rep. Lynn Woolsey, D-California and a former HR professional. “We can compromise no more.”

She and her colleagues were occasionally drowned out by protestors chanting for a single-payer government health care system. Some progressives support such a plan, but congressional leadership has ruled it out. Nonetheless, opponents of the public option call it the first step on a slippery slope to government-run health care.

Over in the Senate, health care reform also is in flux. The health committee has approved a bill with an employer mandate and a public option, while the Finance Committee is trying to cobble together a bill with bipartisan support that would jettison each idea.

Reconciling those two bills—once Finance has introduced and approved its version—is going to be a big challenge, if Democrats want to attract more than token GOP support and ensure that their own moderates stay on board.

The rising tension was illustrated in a July 30 Senate press conference. Majority Leader Harry Reid, D-Nevada, dropped all senatorial courtesy in answering a question posed by my Crain Communications colleague Matthew DoBias of Modern Healthcare.

DoBias asked a legitimate question: How will the two Senate committees be able to bridge the differences between divergent bills? The answer, which will unfold over the fall, may determine the outcome of health care reform.

Reid took umbrage. “With all due respect,” Reid said, pausing and casting an icy stare at DoBias, “you don’t know what you’re talking about. These are not two separate products.”

But then Reid seemed to endorse the premise of DoBias’ query with the rest of his answer about how he is going to merge the bills.

“I’m going to do it very carefully, recognizing we have to have 60 votes,” Reid said. “I’d like to have a few more than that.”

There are a total of 60 Democrats in the Senate, just enough to overcome a filibuster. Getting that number of votes—and 218 in the House—will be as much a test of Democrats’ ability to line up their colleagues as it is to attract Republicans.