Published by Tanielon March 12, 2009 in EFCA and Senate.

Campaign Diaries

While it is not expected to be brought to a vote just yet, the Employee Free Choice Act was introduced in both chambers of Congress this week. 220 House members - more than enough to ensure passage - have already co-sponsored the measure, so everyone’s attention is turned to the Senate, where the fate of one of the year’s most consequential piece of legislation will be decided in the months ahead.



Over the past few weeks, conservatives have sounded upbeat about their chances of stopping the reform, and a number of Democrats have pulled back their past support. So what is the current situation, and do EFCA’s opponents really have the momentum? Yesterday, I delved into the Democratic caucus’s ideological fault lines and how they are influencing the EFCA debate; today, it is time to look at at where individual members fall on the bill and at the chances of passages.

I have put together a detailed head count, going through each individual Senator, especially the 23 who are not co-sponsors and whose vote will be decisive. I broke down their recent statements and past positions, and organized them in a table available below. A number of Senators have not taken an official stance yet, and phone calls to their offices yielded differing results. Kay Hagan’s office told me that she supported EFCA, other offices responded that their Senators were taking their time, others said that they were concerned with some aspects of the bill.



Here is the overall head count I have come to:

40 co-sponsors 4 Senators are not co-sponsors but look to be supporting the bill (3 + Al Franken) 16 Senators are undecided (this includes Ben Nelson, who says he is leaning against the bill but is explicitly more open to voting in favor of cloture, a key distinction I explain below)

There has undoubtedly been a drop in support over the past two years. The bill’s 2007version had 47 co-sponsors and all Democrats voted in favor of cloture; now, Democrats have 7 more Senators but EFCA only has 40 co-sponsors. This evolution is not surprising: Business groups are much more active against the bill now than they were two years ago, when they knew the bill would not pass the Senate and that Bush would veto it even if it did.

Contrary to what some articles are suggesting, this drop in support does not necessarily mean that the bill is in trouble. There are two reasons to this:

1. A number of Senators might be unwilling to associate themselves so closely with a top labor priority, which means they are delaying the announcement of their stance. Yet, EFCA is the most important priority of one of the party’s biggest constituencies. For a Democrat to vote against the bill would be one of the biggest breaks from the party they could undertake, and only a handful of those who are currently undecided will remain so by the time the debate ends. Does anyone expect Senators Kohl or Feinstein to sabotage EFCA? Sure, they might insist for the bill to be moderated and watered-down, but they are unlikely to threaten the bill’s meatiest substance.

2. This reason could not be more important, but some people seem to be forgetting it: The cloture vote (which requires 60 votes) and the vote on the final legislation (which requires 50 votes) are two completely separate things, and they should be treated separately. Harry Reid can afford to let a number of Senators vote oppose the legislation; all he needs of his Senators is to vote for the cloture vote. And while some will certainly be tempted to oppose the legislation, it will be a whole other level of betrayal to join Republicans on the cloture vote.

It might seem silly to expect Senators to split their vote between the cloture and the final vote, but this is common practice used by Senators who want to have it both ways on tough votes. The cloture vote is the only one unions will remember, but the final vote is the only one the broader public will likely notice. Take Alito’s nomination to the SCOTUS, for instance: Joe Lieberman voted “yes” on cloture and then “no” on the final vote. And Democrats might not be the only one to attempt a similar switcheroo on EFCA: Might such a maneuver not solve some of Arlen Specter’s problems?



It is exactly such behavior that Harry Reid described recently in expressing his confidence that the bill would pass. “We, of course, are looking for 60 votes. I think, frankly, they’re there,” he said. “Now remember: these are procedural votes. These aren't votes on the substance of the bill. I think getting 60 votes on the procedural aspects of it is certainly there.”

For now, only Nebraska Senator Ben Nelson has admitted that he is thinking about the two votes separately, as he has hinted he now opposes the legislation but professed himself far more open to voting in favor of cloture (see his quotes in the table below). And this is something we will have to observe closely in the weeks ahead: The question is not whether 60 Senators are willing to back the legislation, but whether 60 Senators are willing to let said vote to occur.

There is much more we could say, but for now, let’s now go on to the individual head count. Needless to say, this is an evolving situation, and Senators are refining their position on a daily basis - so what is true today might not be true tomorrow.

The bill has 40 co-sponsors, all of whom are naturally expected to support the bill:



Daniel Akaka; Mark Begich; Barbara Boxer; Sherrod Brown; Roland Burris; Robert Byrd; Maria Cantwell; Benjamin Cardin; Thomas Carper; Robert Casey; Christopher Dodd; Dick Durbin; Russ Feingold; Kirsten Gillibrand; Tom Harkin; Daniel Inouye; Tim Johnson; Edward Kaufman; Ted Kennedy; John Kerry; Amy Klobuchar; Frank Lautenberg; Patrick Leahy; Carl Levin; Joe Lieberman; Robert Menendez; Jeff Merkley; Barbara Mikulski; Patty Murray; Bill Nelson; Jack Reed; Harry Reid; John Rockefeller; Bernard Sanders; Charles Schumer; Jeanne Shaheen; Debbie Stabenow; Tom Udall; Sheldon Whitehouse; Ron Wyden.

(Note that some of these Democrats - for instance Carper and Bill Nelson - have said they would rather see the bill moderated. But their willingness to co-sponsor the bill as it is introduces certainly suggests that they will not cause much trouble for the bill’s passage.)

In addition, at least 4 Democrats who are not co-sponsors support EFCA seem close to supporting the bill - though their vote is obviously more up in the air than the 40 Senators listed above:

Senator Notes Franken Once he gets his seat, he is not expected to waver on EFCA (see his campaign website).

Dorgan Dorgan said: “I’ve cosponsored and supported it in the past, and I expect to again.”

Hagan Her spokesperson told Politico that Hagan supports the bill; her office confirmed to me that she was “in support” though she had no current plan to co-sponsor it.

McCaskill She voted “yes” and co-sponsored 2007 version. During her recent appearance on ABC’s This Week, she expressed doubt that there were 60 votes in support of the bill and she would undoubtedly be interested in compromise negotiation, but she also showed no sign of backing off her past support for the bill. On the other hand, she is the most likely to create trouble for the leadership on this issue of the four Democrats in this category.

That leaves us with 15 Democrats and 4 Republicans whose vote could be decisive:



Senator 2007 version Notes Vote Sponsor

Bayh Yes Yes He has yet to make statement on 2009 version.

Baucus Yes Yes He has yet to make statement on 2009 version; his office said he is still “considering” the legislation and has “some reservations” about the bill as it is currently written.

Bennet N/A N/A He has not announced stance on EFCA. Has clashed with unions in Colorado; business groups reportedly hopeful they can win him over.

Bingaman Yes Yes No recent public statement; his Senate office refused to clarify Bingaman’s position.

Collins No No She opposes the legislation, but some believe she could perhaps be won over through negotiation, particularly if the card-check provision of EFCA is dropped.

Conrad Yes Yes He is actively avoiding taking a stand this year.

Feinstein Yes Yes She has yet to announce stance on 2009 version; her Senate office told me she is “taking a serious look at it” and “seriously considering it.”

Kohl Yes Yes No recent public statement; his Senate office said Kohl has “not announced his position on the current bill yet.”

Landrieu Yes Yes Her spokesperson says that Landrieu will take time to “review” the bill.

Lincoln Yes No She has been publicly critical of the bill, calling it “divisive” and saying that, “I have 90,000 Arkansans who need a job, that’s my No. 1 priority.” That is not the same thing as opposing it, but it is certainly not a sign of comfort. “The question is, is there a need for this legislation right now? And for multiple reasons, I don’t think there is,” she said.

Nelson Yes No On March 10th, he voiced his opposition: “if what was put in is the same as it’s been described, I’m not in support of that.” He left door open to supporting the bill after “major effort” to change it. Very importantly, Nelson left an even bigger door open to supporting the cloture vote but not the legislation: “We’ll have to see whether there’s adequate debate. There are a lot of questions that remain about what the process is long before we have to make a decision about the cloture vote.”

In other words, and this is very important, Nelson is willing to separate the cloture vote from the vote on the legislation. And this is something he’d done before: Earlier this year, Nelson said he was likely to vote in favor of cloture but was “undecided” about the final vote.

Pryor Yes No He is now saying he will wait and see the outcome of negotiations. He recently said: “I’m just waiting for it to unfold in committee and see what it looks like when it hits the floor… When business groups contact me in Arkansas, I listen to them just as I do to unions. My sense is we can find common ground on this, but we’re not just there yet.”

Snowe No No She recently released statement opposing it, but some believe she could perhaps be won over through negotiation, particularly if the card-check provision of EFCA is dropped.

Specter Yes No He has not taken a stand this year. On March 10th, Specter declared: “I’m not going to be bound by party loyalty. My conscience tells me if it’s in the interest of the nation or the state.”

Tester Yes Yes He has yet to announce stance on 2009 version; when contacted, Senate office did not clarify position



M. Udall Yes Yes While campaigning for Senate, he pledged to support EFCA. Campaign website has very lengthy defense of the bill and of card-check provision. Udall also said:”I support the Employee Free Choice Act. It’s a way to ensure that in the workplace, employees have a say, so that we can honor the American tradition of collective bargaining and organizing in the workplace. I urge everybody to go out and make the case.”

Now, Udall is avoiding taking a stand, as reported by The Wall Street Journal, by Politico and by Politico again.

Voinovich No No Some proponents believe Voinovich might be willing to buck his party now that he has announced his retirement.

Warner N/A N/A Failed to take a stance during 2008 campaign; now, business groups are reportedly hopeful they can win him over. He said he hopes for a “balanced reform.”

Webb Yes Yes He has pulled back his support. His office told me that he “agrees with President Obama that now is not a good time to bring up the legislation” and that he will be working to bring about a “bipartisan approach.” (Interestingly, the first staffer I talked to mistakenly told me that Webb was a co-sponsor and that he supported the bill.)

With this many Senators doing their best to keep their distance from a bill many will probably end up voting for, it is no wonder the head count looks so murky. Those to watch are undoubtedly Ben Nelson (whose attempts to split the issue of cloture and of the final vote are exactly what Harry Reid is looking for), Mary Landrieu, Blanche Lincoln, Mark Pryor, Mark Warner and Arlen Specter.

Evan Bayh, Michael Bennet, and Mark Udall voting against the bill would be a surprise, but they are either too conservative (Bayh) or have too little of a track-record (Bennet, Bayh) for Democrats to take them for granted. To this list I would be tempted to add Claire McCaskill; she has not suggested she is pulling back her support, but her centrist leanings combined with her last minute switch on the omnibus bill make her a question mark on any liberal priority.

Of course, many Senators will be motivated by electoral considerations. Those who are up for re-election in a conservative state in 2010 might be less willing to take a strong stance in favor of EFCA, while the threat of a potential primary will weigh heavily on Specter’s mind. But a lot of this has little to do with elections: Mary Landrieu and Mark Udall were both willing to voice their support for EFCA last year, in the run-up to their election; now, they will not face voters before 2014 but they are withholding their support.

Update, in answer to commenters who are wondering why Democrats would bring up EFCA before Al Franken is seated: That will not happen, and no one expects Harry Reid to call a vote (or labor to call for a vote) until Franken is in the Senate. The bill might have been introduced this week, but it will likely take many months before a final vote is actually organized.



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