Say it Ain't so, Joe

7/17/20

It’s too early for “I told you so,” but Friday’s Wall Street Journal editorial allows as how Joe Biden may shed his institutionalist ways in support of eliminating the filibuster.  You may recall before July 4th the Wall Street Journal editorial board wrote a piece that looked like a couple I wrote last August and September. Late last summer, I talked about the tradition of the 60-vote threshold in the Senate, why the Framers wanted the Senate to be slow and boring, and how the last two majority leaders have abandoned that intent.

Well here’s the upshot.  Bills that may not be helpful to your company will become law if the Democrats take control of the Senate. New Majority Leader Chuck Schumer (D-NY) will call a vote to change the rules such that 51 votes, not 60, would be required to end debate and advance a bill.

You may recall that then-Majority Leader Harry Reid (D-NV) changed the rules to require 51 votes for nominations other than the Supreme Court in 2013.  And in 2017 Majority Leader Mitch McConnell (R-KY) expanded the “nuclear option” for Supreme Court nominees.

Does Senator Schumer have enough votes – 51 – to change the rules?  If he is the Majority Leader he should right?  But can he keep all the Democrats in line?  

Senator Chris Coons (D-DE) recently changed his position and said he would support ending the filibuster because, he said, “if there's a Biden administration, it will be inheriting a mess, at home and abroad. It requires urgent and effective action.”  

Senators Joe Manchin (D-WV), Jon Tester (D-MT), and Kyrsten Sinema (D-AZ) announced last year they would not vote to eliminate the 60 vote requirement.  But wait, in a Democratic majority Manchin would be in line to be Chairman of the Energy and Natural Resources committee – an important post for West Virginia.  Would he get that job if he votes against his leader on the this one?  

If a Democratic Senate eliminates the filibuster and if Biden is president here is a sampling of projected new laws:
  • The Pro Act which would ease unionization, allow picketing of customers and suppliers (or your company as a customer or supplier) and eliminate of states’ right to work laws, and much more;  
  • Bills to impose stiffer penalties on corporations and hold company executives personally liable when they interfere with organizing efforts;
  • Legislation to codify Obama-era joint employer rules and California-like contractor definitions;
  • Mandates for paid family and medical leave;
  • Restrictions on scheduling;
  • Corporate tax increases for companies with large pay gaps between their CEO and median worker;
  • Mandates on board of directors membership to include worker representation.
 
These are the facts.  Schumer has stated he would like to eliminate the filibuster for legislation. And most of the policies I just ticked off are either on Biden’s website or in the Democratic unity document that was released last week.  We have NEVER experienced a policy environment like the one this step would unleash.

It all comes down to the Senate races in Arizona, Colorado, North Carolina, Maine, and Montana.  Then in January when the talk turns to Senate rules such as filibusters, cloture, and quorum calls being dispensed with, don’t let your eyes glaze over.  Procedures might seem arcane, but they can determine the policy.