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By Ben Penn
June 13 — The Senate will likely approve a Republican-backed bid to weaken the Fair Pay and Safe Workplaces executive order through the defense authorization process, but the issue is far from resolved.
When the Senate takes a final vote on the National Defense Authorization Act, it will almost certainly include language exempting most defense contractors from the order. But Democrats are now strategizing about new ways to restore the executive order's applicability to all federal contracts.
They're considering introducing a bill to counter the NDAA language by codifying the order, and they also want to try to remove the defense contractor provision when the bill gets to conference committee, a Democratic staffer told Bloomberg BNA June 13.
It's too soon to determine whether the new bill might be standalone legislation—which the Republican majority could stall—or attached to another bill, such as an appropriations measure, that the GOP wants to pass.
The White House has already issued statements objecting to the House and Senate bills' inclusion of the defense language related to Executive Order 13,673. But advocates for the executive order are hoping for a stronger veto threat to provide leverage for Democrats heading into the NDAA conference.
Signed by President Barack Obama in 2014, the order requires businesses seeking government contracts worth more than $500,000 to disclose violations of 14 federal labor and employment laws—and state-law counterparts—for the previous three years.
Democrats and worker advocacy groups have called the defense authorization measure an effort to “gut” the EO because defense accounts for about two-thirds of all government contracting.
Senate Democrats are pivoting after they had initially attempted to strike the Fair Pay and Safe Workplaces language via an NDAA amendment introduced by Sen. Richard Blumenthal (D-Conn.) in May. Blumenthal announced on the Senate floor June 9 that his amendment would not receive a vote.
“My hope is that we can work with colleagues and overcome the potentially harmful effects of this provision” to exempt DOD contractors, Blumenthal said June 9. “I look forward, in fact, to a collegial effort to make sure that we provide longterm protection to American workers through this executive order.”
Republicans and business lobbyists refer to the order and its implementing regulations as “blacklisting” rules. They criticize the administration for imposing what they call unnecessary burdens on law-abiding contractors when there already exists a mechanism to suspend and debar law-breaking companies from federal procurement.
The House version of the NDAA, passed in May, includes an amendment exempting the DOD and the National Nuclear Security Administration from the executive order. The Senate measure, which could receive a final vote June 14, contains slightly different language, meaning the variance will need to be sorted out at conference committee.
That's where Democrats may have the best shot at restoring full applicability of the EO, as a veto threat from Obama would weigh heavily on lawmakers who have no option but to pass an NDAA for fiscal year 2017.
Asked if Republicans will make a strong push to ensure the DOD remains exempted from the final NDAA, a spokeswoman for House Education and the Workforce Committee Republicans told Bloomberg BNA June 13, “The president’s executive order creates an unnecessary, redundant, and burdensome new layer of bureaucracy that will threaten the resources our Armed Forces depend on to keep this country safe.”
“That’s why we’ll continue to do everything possible to block this harmful regulatory scheme, and we’ll continue to encourage the administration to protect workers by enforcing the current suspension and debarment process,” the spokeswoman added.
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