Dan Hilton 2014-05-30 01:20:53
The Senate Just Became Less “Cool” Recent actions in Congress are affecting business. Legend has it that when George Washington was founding what is now the United States of America, he described to Thomas Jefferson that the Senate’s purpose is to be like the saucer that cools a hot drink. In fact, the oft-quoted story about the “coolness” of the Senate involves Washington and Jefferson, who was in France during the Constitutional Convention. When he returned, Jefferson visited Washington and asked why the convention delegates had created a Senate. Washington replied, “Why did you pour that tea into your saucer?” “To cool it,” said Jefferson. “Even so,” responded Washington, “we pour legislation into the senatorial saucer to cool it.” Through the years, the Senate has done its job of “cooling” down fast-moving pieces of legislation that the House majority had easily passed. Being the body that is closest to the people, and the only national office that requires election by the people, the House has the unique opportunity to operate under true majority rule. Not so in the Senate: the Senate requires a steep threshold in order to pass a bill into law or to confirm an appointee for executive or judicial appointment. While a simple majority (50+1) vote, ultimately, is what is needed to pass anything in the Senate, the process that precedes the vote is the more difficult process — and one that most Americans are familiar with: the filibuster. The filibuster comes in two forms, but everyone thinks of one name when it comes to speaking for hours on the floor of the Senate until near exhaustion: Mr. Smith, from Frank Capra’s classic film “Mr. Smith Goes to Washington.” Rarely is it the case today where a senator will speak for hours just to prevent a vote on a bill. Today, the filibuster can be used to prevent what is known as cloture, when a 3/5 majority (60 votes) in the Senate has voted to bring the debate to a close. Once this is achieved, a simple majority vote is all that is needed to finally pass a law or confirm an appointee. However, late last year, Senate Majority Leader Harry Reid pulled the trigger on what is known as the “nuclear option.” Did I forget to mention that the esteemed bodies in the House and Senate actually make their own rules? While their job description is rooted in the Constitution, they set their own rules, and they only require another simple majority to change these rules. A majority in the Senate finally voted to end the 60-vote threshold for appointments, excluding those for the Supreme Court. This change means that no matter how controversial or unqualified a nominee may be, he or she requires only 51 votes to be confirmed. So what does this mean for folks outside of Washington and businesses? The nominees at the center of the so-called nuclear option fight were to fill Seats on the U.S. Court of Appeals for the District of Columbia Circuit, called the D.C. Circuit for short. Still not so sure why this is so important? With progress in Washington at a near standstill, and gridlock at an all-time high, it is believed that President Obama will use the powers of the executive order and administrative actions to pursue his agenda and circumvent the divided Congress as much as possible. Get ready for an aggressive OSHA, EPA and NLRB — among many more of Washington’s alphabet soup — to potentially camp out in your businesses. By now you must be thinking, “Surely businesses and trade groups like ASA have the ability to fight this in the courts?” If a judge on the D. C. Circuit was so far outside of the mainstream that he or she needed the United States Senate to change its rules, do you think they’re on your side or the president’s? This scenario has already played itself out, which led to the president seeking this change in Senate rules. The D.C. Circuit hears cases dealing with the executive branch’s authority and use of power. In fact it was just last year when this same Senate majority turned a blind eye and enabled the president to use his recess appointment powers to appoint new members to the National Labor Relations Board (NLRB). Because the Senate never truly was in recess — which would have been necessary in order to empower the president to make the appointment — it was groups like the Coalition for a Democratic Workplace, of which ASA is a proud member of, whose members challenged this appointment in the courts (and won). A large number of other legal challenges to regulations and agency actions are brought before the D.C. Circuit, and the court has repeatedly frustrated the administration’s efforts by finding many of the government’s actions and regulations unlawful. These include appointments to the NLRB and the board’s notice posting and ambush elections regulations. After the president’s inability to pass a cap-and-trade program, the EPA is now poised to enact strict carbon emissions regulations, and OSHA is preparing to implement incredibly strong regulations on crystalline silica particles and the limits on exposure — both of which absolutely will cost business millions of dollars to comply with — without the voice of Congress and now a permissive court. What remains to be seen is if the rules will be changed further to enable 50+1 votes to pass legislation? What happens if the majority flips and Republicans are now in control? Do they change the rules back or keep them in place? Now that the courts are poised to have federal judges more favorable to the administration’s position and less so to the business community, a rocky road can be expected. Buckle up.
Published by SupplyHouseTimes. View All Articles.
This page can be found at http://digital.bnpmedia.com/article/Washington+Update+/1725264/211858/article.html.