Midterms Could Slow Labor Nominee Confirmations

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By Tyrone Richardson

The approaching midterm elections could impair Senate Republicans’ efforts to get several of President Donald Trump’s nominees, including labor candidates, confirmed quickly, political observers told Bloomberg Law.

Senate Majority Leader Mitch McConnell (R-Ky.) filed a motion to kick-start the debate on Patrick Pizzella, deputy secretary designate for the Labor Department, and John Ring, Trump’s third pick for the National Labor Relations Board. Pizzella was nominated in June. The two are expected to be confirmed in a party-line vote following debate sometime this week.

Seven other labor nominees also await confirmation. A total of 131 political nominees are in the confirmation queue, according to the Partnership for Public Service, a nonprofit that keeps track of nominations.

Democrats and Republicans blame each other for the backlog. Democrats say the Trump administration was slow to name its picks. Republicans say Democrats intentionally stall the confirmations by requiring 30 hours of floor debate—with floor time a precious commodity—before voting on a nominee.

Senate confirmation is the last step and a key part of the Trump administration’s goal to seat personnel who can help reverse several Obama-era regulations.

“Qualified nominees stand ready but Senate Democrats are using the procedural playbook to obstruct and delay,” McConnell said on the Senate floor April 9.

Focus Is Elsewhere

Some nominees will get attention this week, but it’s uncertain how long Senate leadership will keep trying to move names for confirmation. The majority party traditionally focuses on symbolic bills that could drum up voter support during midterms but aren’t likely to be passed, political observers say.

“Usually you see more aggressive legislative activity as the midterms get near and they have to go back to their home state and campaign,” said David Lewis, a Vanderbilt University political science professor. “It’s primarily focused on the legislative agenda of the majority party and that doesn’t include nominations.”

Cornell University political science professor David Bateman echoed those thoughts, adding that lawmakers tend to focus on legislation that will resonate with voters on the campaign trail.

It won’t sway voters to say the Equal Employment Opportunity Commission “is now fully staffed,” Bateman told Bloomberg Law. “That’s not a selling point for the election,” he said.

The federal job discrimination watchdog has three vacant leadership posts and Commissioner Chai Feldblum (D) awaits Senate reconfirmation, which would extend her current term, expiring July 1.

Janet Dhillon (R) and Daniel Gade (R) are expected to be confirmed for chair and commissioner of the EEOC, but their nominations have been stalled since October. The Senate labor committee is scheduled to consider Trump’s EEOC general counsel nominee Sharon Fast Gustafson on April 10.

The EEOC’s general counsel position, empty since December 2016, is tasked with the commission’s litigation strategies.

Some consider the vacant counsel spot a “missed opportunity” for the Trump administration “to steer the agency in the way that aligns with their view of the law,” James Plunkett, a lawyer at Ogletree, Deakins, Nash, Smoak & Stewart P.C. in Washington, told Bloomberg Law.

Delays Threaten Reversals

Republicans need a simple majority vote to confirm a nominee, but that could be a problem as lawmakers leave Washington for the campaign trail. The GOP holds a slim majority, with 51 senators versus 47 Democrats and two Independents who caucus with the Democrats.

The agency nominees also will have to compete for time with the Senate’s legislative agenda, which could include immigration reform and efforts to remedy the nation’s opioid crisis.

Nominations also mount as Trump shuffles his administration, for example, tapping Mike Pompeo, former CIA director, to replace Rex Tillerson as secretary of state, Lewis added.

It’s possible the backlog could be cut some by a bulk confirmation of certain nominees. The two parties agreed to pass a cluster of Trump’s nominees at the end of 2017 and a similar situation could happen this year. History has shown that the Senate confirms masses of nominees in the days before the August recess, Bateman added.

Debate Requirement Slowing Process?

Without such an agreement, McConnell must carve out 30 hours of floor debate for each nominee. That has labor nominees competing with other pressing matters like keeping the government funded and confirming dozens of judges for permanent posts.

That also has meant that the Senate will be playing “catch-up” for the remainder of the year, Lewis said.

“The nominations usually happen in the first year, but this administration was slow and they missed the opportunity,” he said. “They’re playing catch-up and it’s hard for the Senate to allocate a time for high-level nominations this late in the session.”

If confirmed, John Ring would bring the NLRB back to a 3-2 Republican majority. The GOP majority is expected to look at reversing a wide range of board decisions issued during the Obama administration, such as joint-employer liability and “ambush elections,” which employers say favor unions.

Meanwhile, agencies like the Department of Labor are stuck in neutral until a handful of critical nominees are confirmed. On that list is Wage and Hour Division Administrator-designate Cheryl Stanton, who would play a role drafting a new overtime rule slated for publication in October.

Confirming Stanton and others would offer political “certainty” on a list rules before the DOL, Glenn Spencer, vice president of the Chamber of Commerce Workforce Freedom Initiative, told Bloomberg Law.

“We would like to get clarity and until the rules are finished, you just don’t know,” he said.

Backlog Bickering

The debate over whose backlog it is continues. White House Legislative Affairs Director Marc Short recently told reporters that the slow progress is due partly to Democrats forcing the 30 hours of debate on nominees.

Senate Democrats say the problem has been slow submissions and even some withdrawals, a spokesman for Minority Leader Chuck Schumer (D-N.Y.) told Bloomberg BNA in a written statement.

“You can’t cry unprecedented Democratic obstruction while, a) many Republicans publicly block President Trump’s unqualified and controversial nominees, and b) hundreds of other key positions remain vacant simply because the administration has failed to actually submit nominees for said positions,” he said.

White House officials didn’t respond to Bloomberg Law’s request for comment on whose fault it is. A spokeswoman for McConnell responded to Bloomberg Law in an email saying, “That’s a good question for Senate Dems—the only ones slowing down votes.”

—Jacquie Lee contributed to this story.

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