What Does a 50-50 Senate Mean For Labor Law?

The NLRB can flourish, but legislative reform remains unlikely.

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It doesn’t need to be stated how important last night’s Georgia elections were. It was the difference between Democratic and Republican control of the Senate, but more importantly it meant whether we would have a unified or split government. With Raphael Warnock the clear winner in his race and Jon Ossoff almost certainly heading there, too, Democrats will have pulled the Senate into the necessary 50-50 tie to make Vice President-elect Kamala Harris the tie-breaking vote.

Everyone in labor knew what was at stake. If Republicans had retained both or even one seat in Georgia, it would have resulted in Mitch McConnell’s continuation as Majority Leader. That meant everything flowed through him on what reached the floor for a vote. The Protecting the Right to Organize Act and other progressive legislative proposals were obviously dead in the water in this scenario, and it meant Biden’s nominations were in dire straits—to his cabinet, to regulatory agencies, and to the federal judiciary. Deals with the devil seemed the best-case scenario for reform-minded progressives, but complete and utter gridlock was certainly on the table.

That calculus has changed. With Harris serving as the decisive vote on any future ties, the question becomes who in the caucus could stray from the lockstep that future Majority Leader Chuck Schumer will be demanding on all votes of consequence. The two most reputedly conservative Democrats, West Virginia’s Joe Manchin and Arizona’s Kyrsten Sinema, will garner the most attention when gaming vote counts. Sinema hasn’t built up much of a voting record yet in her two years in the Senate, but so far she hasn’t bucked the caucus on Trump’s judicial nominees. And while she developed her reputation in the House by voting with Republicans on many large budget issues, she consistently held the liberal line on all NLRB matters.

But what about Manchin? For better or worse, I think his record on labor law reveals where we’re heading for the next two years.

Since 2011, Manchin has essentially been a doctrinaire Democrat on matters the AFL-CIO cares about. He voted against Trump’s NLRB picks and voted for Obama’s. He voted no on Eugene Scalia as Labor Secretary and voted yes on defending prevailing wage in the Davis-Bacon Act. He was with unions on “small” technical stuff like the Department of Labor’s persuader rule, which required employers to disclose advice they received regarding opposition to unionization. These are the bread-and-butter issues that unions were going to sweat with McConnell in charge.

However, as many have pointed out, Manchin marked his first year in the Senate by chickening out on the Employee Free Choice Act at a time when Democrats couldn’t afford to lose a single vote. He reportedly objected to the main components of the bill, i.e. the card check and compulsory arbitration (for first contract) provisions. It is unclear whether he felt emboldened to do this by other Democratic defectors or if he was the one leading this charge, but the Obama administration—who many already suspected to be lukewarm on expending any political capital on the EFCA—took the few voices of opposition as reason to not seriously whip votes for it. As we all know, the EFCA never even reached a floor vote under Obama despite his party at one point having a filibuster-proof, 60-vote majority.

Where does that leave us now on the filibuster? The history of labor law reform in this country is that you need 60 votes to pass anything. The Right to Work repeal bill of the mid-1960s, the 1975 common-situs picketing bill, the 1977-78 Labor Law Reform Act, the permanent replacement for striker ban bill in the early 1990s, and the TEAM Act of the mid-90s all possessed clear majority support in the Senate but fell victim to legislative filibusters. Gutting the filibuster is thus the only way Democrats can even hope of passing the PRO Act in the 117th Congress, but Manchin has already voiced his opposition to doing that. So have Sinema and Montana’s Jon Tester.

So where does that leave us? It means we’re getting Biden’s first choice for Labor Secretary (whoever that may be), a functioning NLRB, and a judiciary re-stocked with people outside of the Federalist Society mold, but we’re almost certainly not getting the comprehensive changes to the National Labor Relations Act that Biden ran on.

This is certainly disappointing, especially if you bought what Democrats were selling during the campaign season. However, I’m grateful that the NLRB will once again be functional. When I wrote earlier about the many impactful things that a Biden Board can do to further the NLRA’s pro-collective bargaining principles, I was not sure how the administration would actually go about getting the necessary personnel appointed to the Labor Board if Democrats lost even one of the Georgia races. There was a real possibility that McConnell would have refused to seat any of Biden’s NLRB nominees even after Trump’s picks saw their terms expire, likely forcing us into an Obama redux of fleeting recess appointments (and with a hostile 6-3 SCOTUS likely reviewing their constitutionality). But now, Democrats can look forward to obtaining a majority on the Board once they fill the open fifth seat and replace the departing William Emmanuel, whose term ends on August 27. A new General Counsel can be appointed (at the latest!) in late November. The Biden Board will thus have all of 2022, 2023, and 2024 to operate at full capacity, barring any budget hijinks.

For those of us with low expectations but who nonetheless care about labor law enforcement, that alone feels like a major win. And I hope I am wrong about the PRO Act’s fate. Maybe the Biden administration will wise up, declare death to the filibuster, and hold dissenters to the fire until they see the light. If nothing else, it’s wonderful to know that this even a possibility going forward.