EFCA Support May Be Faltering Under Pressure

Despite the dramatic gains in the Senate by the Democrats and the support of President-elect Obama, there are a number of signs indicating that the Employee Free Choice Act in its current form, may still not have enough votes to become law next year. On Tuesday, Senator Blanche Lincoln (D-Ark.), a supporter until now, announced that she deemed the card-check proposal “unnecessary.” While refraining from stating that she would vote against EFCA altogether, it appears that Lincoln – who is up for reelection in 2010 – cannot be counted on to support this legislation without reservation and it is very possible that she would not again vote to end a filibuster of the bill in the Senate. Meanwhile, on the other side of the aisle, Republican Senator Arlen Specter –who was the only Republican Senator who voted in favor of the measure in 2007 – has yet to declare publicly whether he will once again cast his vote in favor of EFCA’s passage, and there are indications that he is uncomfortable with the bill in its current form.

To add to the growing unease among EFCA proponents, there have been some rumblings that despite President-elect Obama’s continued support for the measure, his advisors are not as supportive of this bill. According to a recent article by the Las Vegas Sun, Rahm Emanuel, Obama’s Chief of Staff, declined to say at a meeting of chief executives and business leaders whether the White House would support this legislation if reintroduced. This is a strong non-statement, given Obama’s staunch support of EFCA during his campaign, no doubt to secure the support of organized labor.

Recent indications are that EFCA will be re-introduced early-on in the House of Representatives during the 111th Congress (and will most likely pass easily); but the Senate may not act so quickly. As efforts by the business community and other opponents of EFCA to educate lawmakers and the public gain strength, the staunch support of EFCA seen in the 110th Senate appears to be weakening; and when EFCA is reintroduced, supporters and labor may be scrambling to garner sufficient votes to avoid the inevitable filibuster that prevented passage of the bill in the last Congress.

The current vote count shapes up something like this: if all Senators who voted for cloture in 2007 vote the same way, (and assuming Tim Johnson (D-SD), who co-sponsored the Senate bill, votes this time), AND assuming the new Democratic senators vote along party lines (far from certain) and that the replacements for Senators Obama, Biden, Clinton, and Salazar vote the same as their predecessors, EFCA supporters have at most 59 votes in favor of cloture. This would mean that EFCA supporters would only need to pick up one vote. HOWEVER, Senator Lincoln has now indicated that she may not support cloture and Senator Specter is not committed to saying yea or nay, so committed EFCA support would be down to 57 votes. Newly elected Senator Mark Warner (D-VA) is the only new Democratic Senator who is uncommitted, meaning that he cannot be counted on to support a cloture vote on EFCA.

If lobbying efforts against the measure continue to escalate, causing other Democratic senators to “turn,” it is entirely possible for EFCA to once again fail.

Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.