AFJ: Senate restores NLRB to full functioning

       Alliance for Justice President Nan Aron released the following statement today in response to the confirmation of President Obama’s nominees to the National Labor Relations Board: 

        With these votes the Senate restores the National Labor Relations Board to full functioning.  That will ensure fundamental protections not just for union members but for all American workers.

For 75 years, the National Labor Relations Act has been the rulebook for relations between businesses and their workers.   But a rulebook is useless without an umpire.  The members of the NLRB are the umpires.  Soon they’ll be back on the field.

But that is not enough.  Obstruction of judicial nominees is every bit as debilitating as obstruction of executive branch nominees.  The same willingness to allow, at long last, yes-or-no votes on the NLRB nominees must extend to the nominees for the D.C. Circuit and other judgeships.

AFJ: Reported agreement on Obama nominees "an important step forward"

               Alliance for Justice President Nan Aron released the following statement today in response to media reports of an agreement concerning seven of President Obama’s executive branch nominations:

                The agreement, as described in media accounts, is an important step forward for the United States Senate and for the American people whose interests are served when government functions.  But it is not the end of the story.  There will be more legislation, more executive nominations and judicial nominees upon which the Senate will need to act over the next several months.  We hope the spirit of this agreement carries over to that business as well.  But if it does not, all options remain on the table for allowing the Senate to evolve in ways that make it a more effective institution.

              Today’s events demonstrate what can happen when a strong, unified, principled stand is taken against obstruction and dysfunction, and we will work hard to ensure that this same sense of purpose and firm resolve will be present when judicial nominations and vital legislation make their way to the Senate floor in the coming months.

            If this agreement fails to cure the culture of obstruction, we will fight for the reforms necessary to end the paralyzing gridlock that has characterized the Senate over the last several months.
 
         

Nan Aron on "The Broken Senate"

This is AFJ President Nan Aron's statement for today's forum at the National Press Club called "Fixing the Broken Senate: Restoring Democracy and Fixing the Filibuster."  

 ●Watch video of the forum at www.afj.org 
 ● Read more about Senate rules reform

Alliance for Justice is very pleased to be a part of this discussion about the “Broken Senate.” I feel like we’re coming to the end of the fifth season of a bad reality show.

Nan Aron

But what’s happening in the Senate is not fiction. It’s very real. The abuse of the filibuster has become a threat to the proper functioning of the government and to public faith in the institution of the Senate.  A recent poll by The Economist put the approval rate of Congress at nine percent. That’s incredible, but not really surprising.  It does make me wonder who those nine percent are. Family members? Campaign consultants?

It’s deplorable that the American people have so little regard for a crucial part of our government. It’s unhealthy for our democracy. And I don’t think there is any question that at least part of the problem has been the rampant misuse of the filibuster in the Senate, which has led to stalemate and gridlock in spite of the enormous problems the country now faces.

Let me be clear about something: The filibuster has a legitimate role when used responsibly. But we have entered an era of unprecedented abuse of rules and traditions, which is forcing the Senate to the brink of drastic action. The filibuster traditionally has been used to allow a minority to make a principled stand on matters of enormous and unusual importance.  It forces the process to slow down and helps ensure that all voices are heard. It’s a signal that something of significance is at stake. But that’s not what’s happening now.

This is the crucial point to understand.  As the motivation behind the filibuster has changed and its frequency increased, its legitimacy has declined. The fights over President Obama’s judicial nominees, for instance, are not ideological in any real sense. The president has gone out of his way to nominate men and women from the legal and political mainstream. Who could honestly say that the filibuster of Caitlin Halligan was some kind of titanic ideological fight?

Today’s filibusters are just crass politics. They reflect a desire to block the president’s agenda at every turn and feed the insatiable need of a hyper-partisan political base for endless obstruction. We’re in an era where one side believes cooperation is a dirty word—or an invitation to a primary challenge. When that intransigent attitude is paired with a procedural weapon as potent as the filibuster, gridlock is the result.  And that’s what makes the situation different today from what it has been in the past. And that’s why the nuclear option is back on the table.


Serious talk about changing the rules has been reborn because the filibuster has evolved from a                            
targeted tool to a weapon of indiscriminate disruption. The entire legislative process is now held captive to this threat. We’ve gotten to the point where just the threat of a filibuster is enough to derail the Senate. The abuse of the process has created a de facto threshold of 60 votes for action—a supermajority requirement for everyday business that can be found nowhere in the Constitution.

It’s important to remember that the problem isn’t just that bills and nominations with clear majorities are stopped, but that many nominations are never made and bills are never proposed, even though they could achieve a simple majority if they were given a chance. There is an invisible price for gridlock that the public never sees.

Obviously, the first test will come in the next few days when cloture petitions are expected to be filed on a series of executive branch nominees—Richard Cordray, Tom Perez, Gina McCarthy, and nominees for the National Labor Relations Board. What happens to these highly qualified nominees will set the tone for the rest of this Congress. If Republicans continue their current behavior and prevent final votes, then the choices will be narrowed to two options: allow crucial agencies that deal with hugely important issues to be left leaderless or reform the rules to permit up-or-down votes.

But the battle over executive nominees is just the beginning. The next big fight looming later this summer is over the President’s three nominees to the D.C. Circuit Court of Appeals.  This is a case of the Republicans engaging in what will be a kind of Group Filibuster, where they don’t even pretend to care about the qualifications or ideologies of the individual nominees.  They just don’t want anyone appointed by President Obama to this crucial court no matter who they are.

Senator Grassley has complained that the President is trying to “pack the court,” as if filling vacant judgeships is some kind of unprecedented power grab. Republicans pretend to be outraged that the president has sent names forward for empty seats on the 11-member D.C. Circuit--just like every other president has done since the Grover Cleveland administration. This would be laughable if the consequences weren’t so serious.

Of course, we know why the Republicans will threaten to filibuster Patricia Millett, Nina Pillard, and Robert Wilkins. The D.C. Circuit is the federal appeals court that most closely oversees the actions of federal agencies on topics like the environment, consumer protections, workers’ rights, banking regulations, and other vital issues. Those are the same issues, by the way, that are at stake in the current executive nominations fights.  In some ways, the two big summer battles over executive and judicial nominations are really one big fight over the future of the country. Fair enough. But the question is, will the Senate be permitted to bring these issues to a final vote on the merits, or will procedural hurdles be erected to prevent democracy from functioning.

So at some point in the next several months, when the three DC Circuit nominees reach the floor, the Senate will have to make another set of choices, just like the ones it will start to face next week on executive nominations. Either accept the obstructionism of a hyper-partisan minority or change the rules to allow the President and the Senate to do the jobs the Constitution demands of them.

For those who care about our democracy and the courts, the choice is easy.

The American people are saying enough is enough. The time for reform is rapidly approaching.

Democracy on trial in the Senate

Republicans seek to obstruct Obama
executive, judicial nominees

Nan Aron

By Nan Aron
President, 
Alliance for Justice

            With battles ahead over President Obama’s choices for Secretary of Labor, Environmental Protection Agency Administrator, Consumer Financial Protection Bureau Director and the National Labor Relations Board, and fights over the nation’s second most important court likely to follow, democracy itself is on trial in the United States Senate.

            If Republicans persist in preventing yes-or-no votes on President Obama’s executive and judicial nominees, the only recourse will be for the majority to revisit Senate rules reform and put an end once and for all to Republican efforts to subvert the Senate’s constitutional obligation to provide advice and consent.
 

Richard Cordray

        The first test is likely to come this week. Senate Majority Leader Harry Reid says he will schedule a vote on President Obama’s nominee to lead the Consumer Financial Protection Bureau, Richard Cordray.  The CFPB was created as part of the Wall Street Reform law as an agency solely devoted to protecting consumers of financial products from mortgages to credit cards.  In a transparent effort to protect the very special interests that collapsed our economy and brought ruin to so many Americans, Republicans so far have refused to confirm Cordray. In fact, Republicans have said they won’t confirm anyone to run the CFPB.

            Republicans have been equally obstinate about the president’s nominees for the National Labor Relations Board, the independent agency charged with protecting the rights of workers – and a hearing on those nominees just last week showed no thaw in that obstinacy.  That’s why Cordray and some of the current NLRB members had to be named through recess appointments.

            But three Republican-appointed judges of the United States Court of Appeals for the District of Columbia Circuit, breaking with decades of precedent, decided that the President doesn’t have the power to make such recess appointments.  The decision is part of a pattern in which the D.C. Circuit consistently sides with corporate interests over workers and consumers – blocking Wall Street reforms, undermining labor rights, and rolling back environmental protections.

            So it’s no wonder that Republicans also are trying to prevent the president from restoring balance to the D.C. Circuit, which is currently dominated by Republican appointees.  The latest underhanded tactic from Republican Senators amounts to a ‘pre-emptive filibuster’ – an effort to eliminate three of the four vacant judgeships on the court in order to prevent President Obama from filling those seats.

Tom Perez

          But even that isn’t the end of the obstruction.  We are pleased that two Senate committees were able to overcome Republican stalling tactics and vote last week in favor of President Obama’s highly-qualified nominees to lead the Department of Labor and the Environmental Protection Agency.  The next step must be swift yes-or-no votes by the full Senate on the nominations of Tom Perez and Gina McCarthy.

            Unfortunately, these two outstanding nominees’ ordeals may be far from over.  All of the Republicans on both committees voted no.  As AFJ has pointed out before, to Senate Republicans, one of the only things as bad as a Labor Secretary who will protect working people is an Environmental Protection Agency administrator who will protect the environment.

           A solid majority of voters twice has made clear that they support the approach to government taken by Barack Obama.  In response, the Republican strategy boils down to rule-or-ruin.  They have shown themselves prepared to paralyze government, no matter what the cost to the American people.  In the days ahead, we will see if the Senate is ready to break free of this paralysis.

AFJ responds to another bad decision from the D.C. Circuit

Alliance for Justice president Nan Aron issued the following statement today in response to the decision of the United States Court of Appeals for the District Of Columbia Circuit  in National Association Of Manufacturers, et. al. v. National Labor Relations Board, et al.

This decision illustrates how, years after leaving office, Republican presidents are reaping rewards from loading the nation’s second most important court with extreme ideologues.  That’s why Senate Republicans have been desperate to prevent President Obama from filling vacancies on the D.C Circuit

It is urgent to restore balance to the D.C. Circuit by filling its four vacancies with judges who will stand up for the rights of working Americans.

This decision once again reveals a court majority that seems determined to hobble the National Labor Relations Board, the very body charged with protecting workers against unfair labor practices.  In order to prevent employers from having to inform their employees about their rights under federal law, the panel twisted that very law to create a new right for employers to remain silent.

Read more about the D.C. Circuit 

Supreme Court should hear appeal of recess appointment decision ASAP

As expected, the Obama Administration is asking the Supreme Court to review a ruling by the United States Court of Appeals for the District of Columbia Circuit that nearly eliminates the ability of a president to make “recess appointments” to federal agencies.

Caitlin Halligan

With Senate Republicans abusing the filibuster at an unprecedented rate, a recess appointment sometimes is the only way to fill vacancies.  Indeed, Republicans have used the filibuster to cripple agencies they don’t like, such as the National Labor Relations Board (NLRB) and the Consumer Financial Protection Bureau.

But when the president used his only alternative, recess appointments, the D.C. Circuit broke with decades of precedent and decisions from every other circuit to rule on the issue to invalidate those appointments.   The decision being appealed now, discussed in detail in this previous post to Justice Watch, left the entire NLRB in limbo.   That post also discusses the fact that this kind of extreme activism is nothing new for the conservatives on the D.C. Circuit – a court widely viewed as the nation’s second most powerful.

They get away with it because there are four vacancies on the eleven-member court, and among the remaining seven judges, conservatives hold a majority.  Senate Republicans are going to extremes to try to keep it that way.  First, they filibustered an excellent nominee, Caitlin Halligan, and now some Republicans are trying to eliminate three of the Court’s seats.

The Supreme Court should hear this challenge as soon as possible.  President Obama needs to move full speed ahead and send the Senate enough nominees to fill every vacancy on the court.  And Senate Democrats need to reform Senate rules, if that’s what it takes, to break the Republican addiction to obstruction.

WHY JUDGES MATTER: NLRB, leadership of consumer agency threatened by DC Court of Appeals ruling

The issue is arcane, but the consequences are huge.  It’s a case study of how the Senate Republican minority’s abuse of the filibuster to block appointees, and the failure to fill vacancies on what is often described as the nation’s second highest court combined to produce potentially disastrous consequences.

 

Hundreds of decisions by the National Labor Relations Board (NLRB) could be invalidated and the entire agency effectively shut down if a ruling by three Republican appointees to the U.S. Court of Appeals for the District of Columbia Circuit is upheld by the U.S. Supreme Court.

The decision involves three appointees to the NLRB, a referee for disputes in the American workplace whose power extends beyond unionized workplaces.  The five-member NLRB board can’t function without at least three vacancies filled.  But for months Senate Republicans blocked three nominations by President Obama. 

Finally, the president resorted to what is known as a “recess appointment” – naming his nominees to the NLRB while the Senate was away for the holidays.  But Republicans used a technicality to try to pretend the Senate still was in session: Every few days someone would stop by the near-empty Senate chamber, declare the Senate “in session” and then promptly declare the session over.

This sham was good enough for three Republican-appointed D.C. Circuit judges. Ignoring longstanding practice and precedent, they ruled that the recess appointments were unconstitutional.  Moreover, the ruling could invalidate all the decisions made by those three recess appointees over the last year.

But wait, there’s more: Since one seat on the NLRB already is vacant that means, if the decision is upheld, the NLRB will have only one member.  As so long as it doesn’t have 3 members, it can’t function at all. 

Richard Cordray

And still more: Richard Corday, who heads the Consumer Financial Protection Board, was appointed the same way.  That happened after Senate Republicans first made clear they would never allow a vote on President Obama’s first choice, Elizabeth Warren (a decision they may now regret, given the job she ultimately got instead) and then stalled the nomination of Cordray.  A separate case is challenging the Cordray appointment.

None of this should come as any surprise.  Last October, Pulitzer-prize winner Steven Pearlstein, then a columnist for The Washington Post, blasted the D.C. Circuit for its extreme right-wing activism.

He wrote:

…[D]ysfunctional government has become the strategic goal of the radical fringe that has taken over the Republican party. After all, a government that can’t accomplish anything is a government that nobody will like, nobody will pay for and nobody will want to work for. For tea party conservatives, what could be better than that?

Nowhere has this strategy been pursued with more fervor, or more success, than the U.S. Court of Appeals for the District of Columbia Circuit, where a new breed of activist judges are waging a determined and largely successful war on federal regulatory agencies.

It didn’t have to be this way.  As Pearlstein also pointed out:

The prospect that some balance might be restored to the nation’s second-most powerful court has long since faded after Senate Republicans successfully filibustered every nominee put forward by President Obama for the three vacant seats on the D.C. Circuit.

That was then.  Soon there will be  four vacant seats.

Here’s why that matters: The 11-member D.C. Circuit currently has eight active members—five Republican appointees and three Democratic appointees—and, as noted above, three vacancies (the fourth vacancy will occur on February 12^th).  If the president had been able to nominate and confirm three people to fill the vacancies, the Court would have had a Democratic majority.  That means either the panel decision could have been different or the entire eleven-member court may have been more likely to review the panel's decision – with a six-to-five majority appointed by Democratic presidents.  But since that didn’t happen, Pearlstein wrote, there was only one other alternative:

The only hope now is that Chief Judge David Sentelle and some of the court’s more intellectually honest conservatives will move to rein in the judicial radicals before they turn the courts into just another dysfunctional branch of a dysfunctional government.

Guess who wrote the decision in the NLRB case: David Sentelle.

Legal Experts Speak Out Against Congressional Overreach

- Joshua Friedlander

Since the 2010 elections, the nation has seen a concerted effort by conservative politicians to weaken American workers’ rights, both at the state level and in Congress. This sentiment has been clearly exhibited by House Oversight and Government Reform Committee Darrell Issa (R-CA) who is waging an all-out corporate-directed attack on government agencies like the National Labor Relations Board (NLRB).

On July 29, a group of 34 legal experts spoke out against Issa’s strong-arm tactics with an open letter condemning his interference with an ongoing law enforcement investigation into an NLRB complaint against the Boeing Corporation. Issa has used his committee to bully NLRB investigators and to characterize the agency's adherence to the law as somehow politically motivated. His actions in this case are clearly inappropriate, and are a prime example of congressional overreach.  

The letter from legal experts was spurred by a July 12 letter sent by Issa to Lafe Solomon, Acting General Counsel of the NLRB, demanding that the committee receive all investigation-related documents from the complaint against Boeing. Although Solomon has already released "discoverable" documents to ensure due process and a fair trial for both parties, Issa continues to demand all case-related documents.

The legal experts are "gravely concerned by the undue pressure that this [Issa's] letter, and its threats to compel disclosure of privileged documents, have placed on an independent law enforcement agency" and that the committee’s intervention in an ongoing investigation could result in federal courts nullifying and overturning the decision in the case. The experts argue that “such a result would jeopardize our long-held democratic principles and respect for the rule of law.” The academics urge the committee to “let this case proceed according to the policies established in the National Labor Relations Act without further interference.” More than 30 academics from 29 universities and law schools joined the letter.

The NLRB’s complaint again Boeing alleges that the company violated federal labor law by transferring an airplane production line from a union facility in the state of Washington to a non-union facility in South Carolina for retaliatory reasons. The case is currently being tried before Administrative Federal Judge Clifford Anderson, who has rejected Boeing’s motion of dismissal for failing to provide a claim.

House Committee Passes Corporate Pardon Bill

Today the House Committee on Education and the Workforce marked up and passed H.R. 2587, which Republicans are calling the "Protecting Jobs From Government Interference Act." It might be more accurate to call it the "Corporate Pardon Bill."

Written less than 48 hours before the committee meeting, the bill specifically targets the National Labor Relations Board's ability to sanction corporations that retaliate against workers who have exercised their right to organize.

If passed into law, the bill would prevent the NLRB from regulating the relocation of corporate operations—a crucial regulatory function established by the National Labor Relations Act in 1935. The NLRB's authority to essentially "undo" retaliatory moves by corporations is one of the key ways the agency protects workers' rights and Americans' jobs.

Nearly as troubling as the bill's content is its timing: the bill directly targets ongoing litigation in which the NLRB is suing Boeing for discrimination against unionized workers. The facts of the case are being presented to an administrative law judge, where both Boeing and the workers will be given the opportunity to put forth evidence. The complaint that was registered with NLRB alleges that Boeing moved part of its operation from Washington to South Carolina in retaliation against a strike by workers at the Washington plant. H.R. 2587 becomes law, the NLRB will not be able to sanction Boeing, leaving the Washington workers without any recourse to get their jobs back.

The Democrats on the committee raised several important concerns with the bill. They argued that it would undermine workers’ rights. H.R. 2587 would take away an important remedy workers have when corporations relocate their jobs in order to avoid dealing with unions. Democrats also argued that the bill would take away the NLRB’s ability to keep corporations from sending jobs overseas. Some even questioned whether the bill was worth the committee’s time, asserting that the committee ought to be more focused on creating jobs instead of protecting corporations' ability to unfairly move jobs. Another concern was that the committee ought not to interfere with the ongoing judicial and law-enforcement process by passing this bill; doing so would be a violation of the separation of powers.

Ultimately, the majority-Republican committee voted to favorably report the bill, adding one amendment that changed the wording to clarify Congressional intent. The vote was split along party lines.