Congress Limited by Elections, Calendar in Waning Days

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By Chris Opfer

Sept. 2 — The end of summer means the start of the final stretch for Congress, as lawmakers return to the Capitol with little time left and few incentives to get things done before the November elections.

All eyes are on the ballot box, where voters will decide who follows President Barack Obama in the White House. They’ll also determine whether Republicans retain control of both chambers of Congress.

That means long-awaited battles over government funding and a pending Pacific Rim trade deal are likely to be put off until at least the lame-duck session following the elections.

A tight schedule—lawmakers are slated to be in session for just four or five weeks before returning to their districts—also leaves little opportunity for action on other fronts.

“Whatever is left hanging out there that they can reasonably get done, I think they will try to do,” Donald Wolfensberger, a senior scholar for the nonpartisan Wilson Center’s Congress Project, told Bloomberg BNA. “But they’re not going to be breaking any new ground.”

In the meantime, critics of Obama administration labor initiatives such as the new overtime rule and disclosure requirements for federal contractors will try to keep the heat on the White House through Congress and the courts.

Democrats will likely spend most of their time trying to help Obama and company beat back the onslaught. They’ll also seek to sharpen their message to voters by urging colleagues to take up measures to raise wages and ease the burden on working families.

A chart with information on the employment bills most likely to see action this year appears in Section C.

All About Elections

Election concerns will be at the forefront on both sides of the aisle when lawmakers return to Washington Sept. 6. What happens in November will largely determine what happens in Congress for at least the next two years.

Democrats need to pick up five seats to win a majority in the Senate, a task made easier by the electoral map. They’re only defending 10 seats in the chamber, while another 24 seats currently held by Republicans are in play.

On the House side, Republicans are largely expected to retain their control. If the GOP majority shrinks, however, that may mean that Republican leaders will have to work more closely with Democrats to get things done.

“You will have some form of divided government, no matter who wins the White House,” Wolfensberger said.

The White House race will help shape how much of the legislation Congress moves actually becomes law.

Randy Johnson, senior vice president of labor, immigration and employee benefits at the U.S. Chamber of Commerce, recently told reporters that congressional election results will also determine lawmakers’ power to serve as a check on regulatory action by executive agencies.

“It would certainly be helpful for the Senate to stay Republican for a couple of reasons, one being oversight hearings on agencies’ misplaced regulations,” Johnson told reporters Sept. 1. “Obviously, the House staying Republican is a backstop to a number of anti-business initiatives that might arise out of a Democratic White House.”

Overtime Threats Cause for Concern

Bill Samuel, the AFL-CIO’s director of government relations, told Bloomberg BNA the labor group’s biggest concern during this Congress’s final days is protecting the Labor Department’s move to expand overtime eligibility.

A DOL rule (RIN:1235-AA11) slated to go into effect in December is expected to make some 4 million workers newly eligible for time-and-a-half pay for all hours worked beyond 40 per week.

The rule faces a number of legislative challenges in Congress, including an appropriations rider to block it. A handful of “blue dog” Democrats also filed a bill ( H.R. 5813) shortly before the summer recess that would phase the rule in over three years and eliminate automatic increases to the salary threshold under which workers are eligible for overtime pay.

That annual kicker, indexed to inflation, is likely to see some challenges in court. Opponents question whether the DOL has the authority to make threshold increases automatic, and say the department should at least have to go through the notice-and-comment rulemaking process each time it wants to change the salary threshold.

“The automatic indexing seems contrary to the intent of Congress,” David French, the National Retail Federation’s senior vice president for government relations, told Bloomberg BNA. “They could have provided for indexing when they originally passed the law and they chose not to.”

Employer groups already scored a victory against the Labor Department in June when a federal judge issued an injunction blocking the DOL’s long-awaited persuader rule (RIN:1245-AA03).

Critics claim the rule, which broadens employer disclosure requirements about outside advisers brought in to help resist union drives, tramples on attorney-client privilege.

A House staffer familiar with a resolution pending in the chamber that would stop the persuader rule told Bloomberg BNA the measure isn’t likely to see a floor vote before the elections.

Overtime Expansion Legacy Issue for Obama

The overtime expansion is seen as a centerpiece of Obama’s worker rights legacy. Samuel and Ross Eisenbrey, vice president of the Economic Policy Institute, said they’re confident the president won’t sign any legislation that stops or waters down the rule.

“The rule would be left to ad hoc updates whenever there’s the political will to do it,” Eisenbrey said of eliminating the automatic threshold increase. “That’s the whole point: if you leave it up to the DOL to update the threshold, it doesn’t happen.”

The EPI, which receives about a quarter of its funding from labor unions, is a think tank that says it is committed to including low- and middle-income workers’ needs in policy discussions.

Michael Lotito, a management attorney and co-chair of Littler Mendelson’s Workplace Policy Institute, said a policy rider mirroring the Democrat phase-in measure could make its way into government funding legislation. He noted, however, that the clock is ticking.

“The closer you get to December, I think the less likely it is that’s going to take place,” Lotito said of stopping the rule in Congress.

Defense Bill Could Clamp ‘Blacklisting’ Order

The overtime rule is just one of the Obama administration labor initiatives that opponents are hoping to beat back through the appropriations process. Republicans are looking to use a separate military spending authorization measure to limit the impact of new disclosure requirements for federal contractors.

The Labor Department and the Federal Acquisition Regulatory Council in August published finalized rules and guidance implementing the Fair Pay and Safe Workplaces executive order (E.O. 13,673).

The directive requires certain contractors to disclose violations of 14 federal labor and employment laws and state-law counterparts over the previous three years.

The House and Senate passed National Defense Authorization Act bills ( H.R. 4909, S. 2943) for fiscal year 2017 that would exempt defense contractors from the order. The Defense Department awards the majority of government contracts each year.

A conference committee is already working to iron out differences between the bills, but it appears votes on any negotiated legislation won’t come until the lame-duck session.

Critics of the executive order say it will give government bureaucrats the power to “blacklist” contractors based on subjective interpretations of settlements and non-final administrative rulings, as well as for misconduct by subcontractors.

The Obama administration argues the disclosures will make it easier to ensure that contractors play by the rules if they want to compete for taxpayer money.

The NDAA is considered must-pass legislation. The measure has been enacted into law 54 years in a row. But Defense Secretary Ash Carter has already raised a wide range of concerns with the bills being considered by the conference committee, and it’s unlikely that Obama would sign either measure into law in its current form.

“That’s a significant threat,” Samuel said, referring to the NDAA riders. “Hopefully, the White House will be able to convince the conferees that they’ve made some adjustments to the order.”

The DOL and the FAR Council revised earlier rules and guidance to address certain contractor concerns, including uncertainty about how to track subcontractor compliance. The rules, set to be phased in over several years, would require subcontractors to make disclosures directly to the Labor Department.

Rider Negotiations Coming

The fate of overtime and other appropriations riders will likely be decided in negotiations on an omnibus spending package expected to come after the elections or early next year.

A measure approved by the House Appropriations Committee in July would stop the Labor Department’s fiduciary rule on conflicts of interest for brokers handling retirement accounts, in addition to pumping the brakes on the overtime expansion.

The measure also would undo National Labor Relations Board decisions to expand joint employer liability and recognize “micro-union” representation election units, block a board rule to streamline representation election procedures, and prohibit the board from exercising jurisdiction on tribal lands.

That bill isn’t likely to move in either chamber of Congress. Lawmakers are instead expected to turn to a continuing resolution to keep the government funded in the short term, before negotiating a larger appropriations package as soon as November.

“What most people are assuming is that they will pass a continuing resolution,” Wolfensberger told Bloomberg BNA. “Then the question will be whether they wrap up longer-term funding in the lame duck.”

Joint Employer Liability, Tribal Sovereignty

At least some of the labor policy riders are likely to be considered in omnibus negotiations. Those provisions have little chance of making it into the final package, however, if Freedom Caucus members and other conservative Republicans continue to oppose the omnibus route and force leadership to court Democrat support.

That includes the joint employer provision, which would undo the NLRB’s decision in Browning-Ferris Indus. of Calif., Inc., 362 N.L.R.B. No. 186, 204 LRRM 1154 (2015). A strong lobbying effort spearheaded by the International Franchise Association forced the White House to issue a veto threat that ultimately got the same rider dropped from last year’s omnibus measure.

The tribal labor rider may have the best shot at surviving omnibus negotiations. The measure has at least some support among Democrats, many of whom appear to be wary of getting in the way of Indian sovereignty.

The rider tracks legislation (H.R. 511, S. 2943) already passed by the House with the help of 24 Democrats and approved by the Senate Indian Affairs Committee. It would bar the NLRB from exercising jurisdiction over tribal businesses, like casinos, operating on Indian lands.

Opponents of the measure say it gives tribal employers carte blanche to mistreat workers, many of whom are not tribe members. The NLRB currently exercises jurisdiction over Indian-owned businesses operating in tribal territories unless doing so would touch on “purely intramural matters” or abrogate treaty rights.

The White House has said the Obama administration would back the tribal labor sovereignty measure only if it’s amended to require tribes to adopt their own “reasonably equivalent” labor rights standards. Sovereignty concerns could nevertheless make that provision easier to swallow than other labor riders.

Trade Votes Packed Away for Next Year

Perhaps the most closely watched labor issue in Congress this year is looking more and more like it won’t be resolved until after a new crop of lawmakers is seated in the Capitol in January.

Both sides in the debate over the pending Trans-Pacific Partnership have been gearing up for a final vote in Congress on whether to approve the 12-nation trade deal. Supporters say the TPP will spur economic activity, while labor groups and other critics are concerned the agreement will just make it easier for employers to ship jobs overseas.

House Speaker Paul Ryan (R-Wis.) and Senate Majority Leader Mitch McConnell (R-Ky.) have recently signaled that they don’t expect lawmakers to weigh in on the deal before the end of the year.

McConnell told reporters the TPP won’t see a vote in the Senate this year because the deal has some “serious flaws,” but he also left open the chance the agreement would get a vote in the next Congress.

That’s probably the clearest sign that there’s not currently enough votes to get the deal passed. An unlikely smattering of lawmakers from both sides of the aisle have already come out against the TPP, not to mention White House candidates Hillary Clinton and Donald Trump.

“The odds are very, very long that it will be considered this year,” Andy Roth, the Club for Growth’s vice president of government affairs, told Bloomberg BNA. “You’ve got a president who is frankly doing a lousy sales job of trying to promote it and two presidential candidates who say they oppose it.”

The Club for Growth supports what it calls pro-business policies like expanding free trade, shrinking government and cutting taxes.

Still, Roth said he’s confident that the deal will get done sooner or later. He said that’s because the next commander-in-chief will eventually feel some pressure to offset China’s economic influence in the Pacific Rim.

“Presidents are generally pro-free trade once they get in office because they understand the geopolitical concerns,” Roth said.

To contact the reporter on this story: Chris Opfer in Washington at

To contact the editor responsible for this story: Susan J. McGolrick at

Copyright © 2016 The Bureau of National Affairs, Inc. All Rights Reserved.

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