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What the Death of Sen. Ted Kennedy Means for the Future of the Employee Free Choice Act

By Brian Harris

[This posting is for informational purposes only and should not be construed or interpreted as legal advice on any matter or as in any way creating an attorney/client relationship with the author and/or Dilworth Paxson LLP.]

A little while back I posted about how the Senate may wait until 2010 to take up the Employee Free Choice Act, a bill that would make unionization easier for employees.

Now with Sen. Edward Kennedy?s passing, there is little doubt that the Employee Free Choice Act, a bill that the senator -- a longtime ally of organized labor -- strongly supported, will have to wait until next year.

In a comment posted on the labor-friendly Web site Firedoglake.com on Aug. 24, the day before Kennedy succumbed to brain cancer, AFL-CIO Secretary-Treasurer Richard Trumka wrote that President Obama and Chief of Staff Rahm Emmanuel ?have both said they [don?t] intend to bring Employee Free Choice Act up until Health Insurance Reform is done.? 

Trumka further identified Kennedy as the 60th vote required for cloture, the only procedure by which the Senate can vote to place a time limit on consideration of a bill or other matter, and thereby overcome a filibuster. Accordingly, without Kennedy?s cloture vote, the Employee Free Choice Act cannot be voted upon in the Senate.

Concerned about losing momentum on health care reform, prior to his death, Kennedy had asked Massachusetts Gov. Deval Patrick to be prepared to name his immediate successor. However, current law mandates that a special election be held not earlier than 145 days after a Senate seat opens. Therefore, unless the law is changed, no one will fill Kennedy?s seat until January 2010 at the earliest.

So organized labor presently lacks the 60 votes in the Senate to reach cloture on the Employee Free Choice Act. In fact, notwithstanding that 59 Democrats remain in the Senate, there may be fewer cloture votes than that.

Sen. Robert C. Byrd, D-W.V., the longest serving senator in U.S. history and a supporter of the Employee Free Choice Act, is ill and presently unavailable to vote. Sen. Blanche Lincoln, D-Ark., has broken ranks and announced that she will not vote for cloture on the Employee Free Choice Act. At best, that leaves only 57 votes for cloture.

Several obstacles now stand in the way of the Employee Free Choice Act.

Eric B. Meyer is a member of the Labor and Employment Group at Dilworth Paxson LLP. Readers can contact Meyer via e-mail and follow him on Twitter.

Full post as published by The Legal Intelligencer Blog on September 02, 2009 (boomark / email).