Employee Free Choice Act set to sneak up on Senate next year

Despite months of virtual gridlock, Congress is grinding toward some form of health care reform. Once the health care debate is either resolved or postponed, the next item on the legislative agenda is likely to be the Employee Free Choice Act, or EFCA.

The bill essentially amounts to a quid pro quo payback for the labor unions that poured over $400 million into Democratic campaigns last year. That’s a lot of money, but if EFCA becomes law those unions will have gotten a bargain.

EFCA originally included a provision called “card check” that effectively would have replaced secret ballots in union elections, forcing workers to declare their choice in high-pressure and public confrontations. Vigorous opposition from the business community has made it unlikely that card check will make it through to the final bill, but its replacement, so-called “ambush elections,” is scarcely better at all. By giving employers only a few days notice before a unionization vote, ambush elections make it virtually impossible for firms to educate employees about the consequences of union takeovers.

Even a compromise version of the bill almost certainly will impose a deeply flawed mandatory arbitration process on employers and employees negotiating their first contracts. Barring renewed advocacy by the business community, in the 2010 Senate there’s every chance that EFCA will garner the 60 Democrat votes to break a unified Republican filibuster.

In the polarized environment of Washington, D.C., the prospects for a controversial bill like EFCA are a lot more complicated than just rounding up enough support for a majority vote. The Senate’s rules are particularly convoluted, in part because individual senators can indefinitely delay the entire chamber—a tactic known as a filibuster. In normal circumstances it takes 51 votes to pass a bill. To overcome a filibuster, however, requires 60 senators; this has its own (equally unhelpful) name: cloture.

Despite the unfamiliar vocabulary, the rules are actually pretty simple—if Harry Reid rustles up 60 senators to end the Republican filibuster, he only needs 51 to pass the bill in an up-or-down vote.

The solution he has seized on is ingenious, and a classic example of Washington doubletalk. A few Democrat senators have signaled their willingness to be part of the 60 who vote for cloture, and then against the bill itself when their vote is no longer necessary. The union bosses with their hands on the purse strings will be satisfied when they get the bill they want, and meanwhile ordinary voters will be hoodwinked into thinking their senator has a backbone.

Here’s the reality: A “yes” vote on cloture is a vote for EFCA. No ifs, ands or buts.

Some of the senators I expect to adopt the split-vote strategy already have begun justifying themselves, telling reporters things like, “I don’t want to lock down the Senate with procedural hurdles.” Those words ring less true after a look at their actual voting records—senators don’t hesitate to vote against cloture when it suits their agenda, despite any high-minded statements to the contrary. Four of the most talked-about senators, Ben Nelson, Blanche Lincoln, Mark Pryor and Arlen Specter, have collectively voted to “lock down the Senate” with a “no” vote on cloture more than 300 times.

It’s ironic, really, that so much complexity surrounds what should be a very simple issue: EFCA ultimately will force millions into unions that 82 percent of Americans don’t want to join. And any senator who sincerely intends to represent his or her constituents on EFCA should forget about the arcane bylaws and rules of Congress, and instead remember one simple word: No.

Richard Berman is president of Berman & Co., a Washington, D.C.-based lobbying firm specializing in research, communications and advertising.