POLITICS MARCH 3, 2010
In a few weeks, Barack Obama will have a chance to do something he hasn’t done particularly well during his first year in office: successfully defy his opponents and, at the same time, reassure his most loyal supporters. At issue is the fate of Craig Becker, one of Obama’s nominees for the National Labor Relations Board (NLRB). Last month, Becker was denied a vote on his nomination when Senate Democrats failed to overcome a GOP filibuster. Now, the Senate’s coming Easter break will give Obama an opportunity to put Becker on the NLRB via recess appointment. And there are good reasons—among them, the need to restore some semblance of functioning government in Washington—why he shouldn’t pass it up.
Created in 1935, the NLRB was a cornerstone of the Second New Deal. The board was designed to protect the right of workers to form unions—by preventing companies from intimidating organizers and employees, as well as by overseeing workplace votes on unionization. In carrying out this mandate, the NLRB laid the basis for a new American pluralism in which the growing power of business could be countered by that of organized workers. The board functioned reasonably well for its first 44 years, but, toward the end of the Carter administration, with Republican conservatives on the rise, it became a political battleground. In 1980, Republicans filibustered Carter’s nominee to be general counsel of the NLRB. It was the first-ever use of the filibuster to block a nomination to the executive branch, and it was not on grounds of competence: Conservatives charged that the nominee, William Lubbers, an innocuous civil servant who had spent 27 years in the Labor Department, would favor unions over business.
Republicans, of course, were not acting simply on their own, but as allies of businesses that wanted to undermine the NLRB. In the mid-’70s, partly in response to competitive threats from abroad, many U.S. businesses had begun doing whatever they could—from firing organizers to threatening to move overseas—to prevent union organization. These tactics were often illegal, which was why big business was so eager to prevent the NLRB from doing its job.
Democrats finally beat the filibuster of Lubbers in May 1980, and, during Reagan’s presidency, the parties worked out an informal arrangement for nominating members to the NLRB’s five-person board. The party in the White House would enjoy only a simple majority, with two spots reserved for members of the other party (and, generally, the other side of the labor-management divide).
Obama has followed this pattern. Last spring, the White House reached an agreement with the Democratic chairman (Ted Kennedy) and ranking Republican (Mike Enzi) of the Senate Health, Education, Labor, and Pensions (HELP) committee to nominate two Democrats, Becker and Mark Pearce, and one Republican, Brian Hayes. Becker was a highly regarded lecturer at the University of Chicago Law School, as well as a counsel for the SEIUand AFL-CIO. Pearce is a Buffalo labor lawyer. And Hayes was a management lawyer for 25 years who also served as the Republican labor policy director on the HELP committee.
When the nominations came before the committee last October, Enzi and Alaska Republican Lisa Murkowski joined Democrats to send the slate to the Senate floor by a vote of 15-8. That should have been the end of it, but John McCain—who is facing a tough primary battle this year against a far-right conservative and has been eager to burnish his conservative credentials—decided to put a hold on the nomination. With the Senate needing 60 votes to break McCain’s hold and Senate Majority Leader Harry Reid failing to play tough on Becker’s behalf, the nomination died when Congress recessed at Christmas. Then, when it returned in January, Obama, to his credit, renominated Becker and reached an agreement with Senate Minority Leader Mitch McConnell to remove the hold on his nomination.
What happened next says a lot about the sorry state of politics in Washington. At the insistence of Republicans on the committee and the U.S. Chamber of Commerce, which has made defeating Becker a top priority, HELP held another hearing on the nomination. Republicans submitted a list of over 400 questions for Becker to answer—more than had been asked of Supreme Court nominee Sonia Sotomayor. In his responses, Becker dealt satisfactorily with the principal charge against him—that he would use the NLRB to administratively enact the Employee Free Choice Act. (The measure, which labor has been unable to get through Congress, would make it easier for unions to organize workplaces.) Becker said explicitly that he would not.
Yet this time, when the committee voted, Enzi and Murkowski both opposed him, and both backed a subsequent filibuster against him. Enzi lamely explained his vote, citing, among other things, Becker’s willingness to require employers to provide unions that win the right to hold elections with contact information for employees—a requirement that the board has previously upheld. The motion on cloture, which took place during a snowstorm that kept members out of Washington, still got 52 votes compared to only 33 in favor of maintaining the filibuster; but it was not enough for Becker’s nomination to proceed to the floor.
The defeat of Becker meant the defeat of Obama’s other NLRB nominees as well, since they were put forward as a package. And that leaves the NLRB in shambles. For over two years, only two members have been sitting on the board—Democrat Wilma Liebman and Republican Peter Schaumber. They have issued almost 600 decisions on matters on which they agreed but have put off any controversial decisions that might create or challenge precedents. Sixty cases have been sitting around for over two years. And even the decisions they have made may be in doubt. In scores of cases, the losing party has filed legal challenges to the board’s authority, arguing that it did not have a quorum with which to make a decision. One case is now before the Supreme Court, and, if the court rules against the NLRB, dozens upon dozens of its recent rulings could be thrown out.
All of this is fine with conservatives, since a weakened NLRB is good news for employers and bad news for employees who are seeking to unionize their workplaces. By gumming up the NLRB’s ability to function, Republicans are continuing the battle they launched three decades ago with the nomination of William Lubbers: They are impeding unions from providing a needed check on the power of business.
Can anything be done? Yes. Obama can issue recess appointments for Becker and the two other nominees. That means they could serve about a year and a half—until the end of the Senate’s term—as George W. Bush’s UN ambassador, John Bolton, did. If they are not confirmed at the end of that period, they can serve another two years, but without salary. Ronald Reagan made 243 recess appointments, Bill Clinton 140, and George W. Bush 171. In fact, Bush made seven recess appointments to the NLRB.
Obama’s first chance to make such an appointment was the Presidents’ Day recess from February 15 to 21. Both the AFL-CIO and the Communications Workers of America urged him to act. But nothing happened, and, when I contacted the White House to find out why, I got no response.
The administration has another chance to act during the Easter recess from March 29 to April 11. Jon Hiatt, chief of staff to AFL-CIO President Richard Trumka, says his union has a “strong belief” that Obama will act then. But other labor officials, who didn’t want to speak for attribution, are far less certain of the outcome. Obama’s failure to make the recess appointment in February has only added to their unhappiness with the administration, which began when Obama endorsed an excise tax on the generous health insurance plans that unions have won for their members—after he had pledged during the campaign to oppose such a tax and attacked McCain for favoring one. Trumka has told several people the story of how, when he went to the White House to discuss the health care bill, the president told him that, if he was not willing to accept the excise tax, there could be no discussion. Says one person who has worked closely with the AFL-CIO and its unions, “People are starting to think it is not just Rahm Emanuel.”
At the end of this month, Obama will have a chance to prove these critics wrong. It would certainly be the politically smart thing to do. Labor remains essential to the Democratic coalition, and, given that Obama cannot offer unions what they really want—the Employee Free Choice Act—he can at least mollify them with this. More than a shrewd political move, however, filling the vacancies on the NLRB is the right thing to do. It is a small agency but an important one. And, as long as it remains crippled, one of the core philosophical commitments of the Democratic Party—the idea that workers ought to have some counterweight to the overwhelming power of big business—goes unfulfilled.
John B. Judis is a senior editor of The New Republic and a visiting scholar at the Carnegie Endowment for International Peace.