Senate Democrats Move to Restore Fair Pay Executive Order

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By Ben Penn

May 26 — Senate Democrats have moved to save the president's Fair Pay and Safe Workplaces executive order from a Republican attempt to impede it through the defense authorization process.

Sen. Richard Blumenthal (D-Conn.) and 10 co-sponsors introduced an amendment May 26 that would remove language related to the executive order from the fiscal year 2017 National Defense Authorization Act ( S. 2943).

The Republican-backed provision would exempt Defense Department contractors from the executive order unless they have already been suspended or debarred for labor violations under the existing mechanism.

The amendment has steep obstacles in the Republican-controlled Senate, but the NDAA may face a veto threat from the White House if the GOP language on the executive order is not deleted. The Fair Pay and Safe Workplaces order's ultimate outcome will likely be determined at the conference committee, where the president could exert his influence (101 DLR A-12, 5/25/16).

“I think the real action will be in conference,” Blumenthal told Bloomberg BNA May 26. Once there, “the stronger the support” from the White House “the better,” he added. That's why the senator said “we've begun” to make the case to the White House “and we have a sympathetic ear there certainly.”

President Barack Obama's executive order (Executive Order 13,673) would require businesses seeking government contracts worth more than $500,000 to disclose any violations of 14 federal labor and employment laws and state-law counterparts for the previous three years (147 DLR AA-1, 7/31/14). Agencies could deny contracts to egregious violators based on the information.

Advocates for the executive order say the Republican language would dramatically scale it back because the DOD accounts for most government contracts. Further, they say current law makes it extremely difficult to suspend or debar employers from federal contracts.

Blumenthal's Second Stab at Amendment

Blumenthal's amendment is co-sponsored by Democratic Sens. Patty Murray (Wash.), Al Franken (Minn.), Kirsten Gillibrand (N.Y.), Sherrod Brown (Ohio), Patrick Leahy (Vt.), Tammy Baldwin (Wis.), Jeff Merkley (Ore.), Jack Reed (R.I.) and Barbara Boxer (Calif.), along with Sen. Bernie Sanders (I-Vt.).

The Connecticut senator also introduced the amendment at the Senate Armed Services Committee markup but it failed by a vote of 16-10, with Sens. Joe Manchin (D-W.Va.) and Angus King (I-Maine) voting against party line.

However, lobbyists that support the Executive Order told Bloomberg BNA that Democrats were caught off guard by the Fair Pay and Safe Workplaces provision's inclusion in the base bill, rather than offered as a markup amendment. They feel the full Senate NDAA debate, which is expected to drag into June, gives them more time to re-educate.

And Blumenthal, in an interview, said, “I'm very, very hopeful about passage” of the amendment “in the Senate because it's a matter of such common sense.”

Looking Ahead to Conference

Even if the amendment were to survive, the House version of the NDAA, passed this month (97 DLR A-9, 5/19/16), includes comparable language to exempt employers contracting with DOD from the executive order. But significantly, the Senate and House bills differ in how they exclude certain contractors, as the House bill also blocks applicability to the National Nuclear Security Administration and doesn't allow the executive order to apply to companies already debarred or suspended.

Therefore, the two chambers will need to sort out differences at conference regardless of what happens to Blumenthal's amendment.

In the meantime, lobbyists and Blumenthal himself are still trying to determine whether the amendment would be subject to a 51-vote simple majority or 60 votes to invoke cloture. Senate leadership will decide that, largely based on how controversial they find the amendment.

Amid that uncertainty, worker advocates and other groups who support the president's action, as well as a business coalition that opposes it, are busy reaching out to members in both chambers, laying out their opposing stances on the executive order's impact.

Amanda Wood, director of labor and employment policy at the National Association of Manufacturers, told Bloomberg BNA May 26, “We don't know if” the Blumenthal amendment is “going to have a floor vote, so we will focus our efforts as if there is going to be a floor vote on this. And yes, after the Senate concludes its consideration, we will focus our attention on conference.”

Wood, who is part of a business coalition that includes the U.S. Chamber of Commerce and the H.R. Policy Association, said that she will be reiterating to lawmakers that the order isn't necessary, because there is already a process for the administration to remove law-breaking government contractors. But the executive order amounts to “instituting a complete regime change, making it more difficult for contracting and more difficult for manufacturers to compete for federal business,” Wood added.

White House Communication

Judy Conti, federal advocacy coordinator at the National Employment Law Project, told Bloomberg BNA May 26 that her alliance is looking for lawmakers in either party to “step up and support workers' rights” by supporting the Senate NDAA amendment. “But we're also painfully aware of the stranglehold that the Chamber of Commerce usually has on the Republican caucus, so we're also working the Democrats just as hard.”

Strong Democratic commitment would be particularly essential at conference, where Democrats could refuse to sign the policy bill if it scales back the executive order. Unlike appropriations measures, the defense authorization bill must be signed this year.

Karla Walter, director of the American Worker Project at the Center for American Progress, told Bloomberg BNA May 25 that CAP and its allies are communicating with the “White House to ensure that the final bill does not include these damaging provisions.” A strong veto threat from the president might force the GOP to reconsider inclusion of the executive order language.

To contact the reporter on this story: Ben Penn in Washington at bpenn@bna.com

To contact the editor responsible for this story: Susan J. McGolrick at smcgolrick@bna.com

For More Information

Text of the amendment is available at http://src.bna.com/fnq.