It’s the first week of the 111th Congress and it’s a little like the first week back at school in September. "So what did you do over the holidays?" is the standard greeting as "What did you do over the summer?" was in high school. There are the new kids (freshman Congressman numbering over 50), the missing kids that graduated (retired or elected to something else), and you also notice the absence of kids that were expelled (lost reelections). So, we all get sworn into office for another term, reacquaint with one another, introduce ourselves to the freshman who we don’t recognize, and note Congresswomen with new hairstyles and Congressmen with changes in facial hair. I have added to that number by growing a beard in the off-season.
Then it’s back to work, and given a terrible economy and a fragile international climate, there is plenty of work to do.
As those of you who read these missives regularly know, I have been rather complimentary of President-Elect Obama’s words and actions to date. He says he wants bipartisan ideas and votes for the stimulus package and every indication so far is that he means it. He does seem to be quite inclusive at this point. I wish I could say the same for Speaker Pelosi.
But I can’t. In fact, the first 3 votes we made in the 111th Congress were perfectly awful. Here they are:
Rules: Each Congress must enact a set of rules by which it governs itself. This is the first act of each Congress. Many of the rules have been around since the start of the Union and others have changed from time to time. Speaker Pelosi made 3 major changes in the rules from those that governed the last Congress. First, she repealed much of the ability of the minority to offer a single amendment to any bill. The rule had been around since 1995 when part of the Republican "Contract with America" was to allow the minority to have a greater voice in presenting alternatives to the majority’s bills. Speakers Newt Gingrich and Dennis Hastert both allowed the then minority Democrats to have significant options to present alternative bills or amendments and demand a vote on the floor. The majority almost always wins these votes so it’s more about letting the minority have a voice than actually changing policy. But Nancy Pelosi moved to silence that voice by greatly restricting the ability of the minority Republicans to offer alternatives now that she has a substantial majority. She also repealed another "Contract with America" provision which was to limit the terms of committee chairman to 6 years so that their nearly limitless power is not abused for decades and so there is some rotation of that power. Under the new rules, Henry Waxman could remain Chairman of the Energy and Commerce Committee or Charles Rangel of Ways and Means for as long as they live and Democrats retain the majority.
But Pelosi did not just repeal the reforms of 1995. She also repealed some of the Democrats’ own promised reforms called "6 for ’06" when they first took the majority back in 2006. She basically eliminated the so-called "PAYGO" provision which was supposed to require any new spending or new tax cuts were "paid for" by reduced spending or tax increases elsewhere.
Pelosi in 2006 promised the most open and bipartisan Congress in history. She is heading towards the opposite of that. There have also been press reports comparing her dictatorial style to that of Speaker Joe Cannon who is generally considered the most controlling speaker since the Civil War. I can only hope that Obama’s inclusiveness will continue and trump the Speaker’s style.
Paycheck Fairness Act (HR 12 – DeLauro D-CT): One of the first bills we voted on was the improperly named "Paycheck Fairness Act.” It was sold as a bill requiring equal pay for equal work between the genders. But equal pay for equal work has been the law of the land for decades. What this bill really establishes is a trial lawyer bonanza to file more lawsuits and get more fees in this area of employment law. Amongst the changes are:
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Shifts the burden of proof by assuming that a female who is paid less than a male counterpart is being discriminated against unless the employer can prove that the lower pay is for another reason;
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Removes limits for compensatory and punitive damages so that awards may now be unlimited;
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Removes the current requirement that members of a "class" must opt-in to be included in a class action lawsuit. Therefore, attorneys can include all females in a company in a class action suit even without their knowledge or consent;
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Gives lots of new powers and $15 million more money to the Department of Labor to investigate and make new requirements of employers.
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This bill passed the House by a vote of 256-163.
Lilly Ledbetter Fair Pay Act (HR 11 – George Miller-CA): This is another trial lawyer bonanza disguised as something else. Lilly Ledbetter was a woman who sued her employer for gender pay discrimination which had occurred some 20 years before she filed suit. At the time she filed the suit, she was still employed by the same company but the supervisor who had allegedly discriminated against her was dead. The case went to the US Supreme Court which ruled that the statute of limitations applied in this case and that she had waited far too long after the alleged incident to file her suit.
This bill is designed to remove the statute of limitations on pay discrimination lawsuits and literally allow such a suit no matter how long after the discrimination allegedly occurred. This means that you could literally file a suit for something that happened 50 years ago, even if all of the supervisors and other company managers were dead. Combine this with the “paycheck fairness" change on the burden of proof and how can an employer prove that the pay was not discriminatory if all managers are gone, dead, or can’t remember? Add on unlimited damages with interest for 50 years……and you see where this is going. The bill passed the House by a vote of 247-171.
So, the first acts of the 111th Congress were to stifle the ability of the minority to speak and present alternatives; and to create new trial lawyer bonanzas. The trial lawyer bills obviously will need to pass the Senate and be signed by the President to become law. Hopefully, either the Senate or the President will recognize that these bills are just about more abusive lawsuits.
Interestingly, all of the debate this week and next will be about a stimulus package. Much of the objective of the stimulus package will be job creation, particularly by small businesses and the creation of incentives and a climate under which businesses will want to hire more people. At the same time we are doing that, this kind of legislation will have the complete opposite affect by increasing the cost of employment, insurance and lawsuit defense to those same employers. Will this Congress give businesses your tax money with one hand, and then take it and give it to trial lawyers with the other?
As a Democrat once said, "our problem is that we love employees but we hate employers." Right now, we need stable, solvent employers more than ever.