EFCA: Counting the votes

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 (Al Franken is included since the bill will not be brought to a vote before Franken is seated)
  • 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 2007 version 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.
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  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 5 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.
Murkowski No No Labor is hoping that the Alaska Republican could be open to voting for a compromise piece based on her comment that “as it is drafted now I’m not supportive.”
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.

Update 2: I have added Alaska Republican Lisa Murkowski to the list of those whose vote is up in the air.

26 Responses to “EFCA: Counting the votes”


  1. 1 Tom

    I love it that Kay Hagan’s office said an unequivocal yes to EFCA rather than delay their response or equivocate on some point or other. Good solid leadership.

    Taniel - it would be interesting to know why this is so crucial a vote. I have heard there could be some compromise that keeps the secret ballot (instead of card check) and then keeps the rest of the bill. This has the advantage of killing the mian GOP talking point which is about the secret ballot provision.

  2. 2 Taniel

    Tom,

    Indeed, this is a compromise that is discussed: The GOP has organized its battle by framing it all as an opposition to card-checks, and EFCA has many other parts about which conservatives are really scared. Centrist Democrats will try to push for a compromise in which card-check is dropped but the rest of the legislation is upheld. Some reports are suggesting labor might accept that, so this is certainly a dynamic to follow.

  3. 3 Panos

    I agree with Webb.
    I can’t understand why the Democrats don’t wait at least for Franken to be seated, in order to have more room for maneuvering. It’s not as if there are no other important issues to deal with.

  4. 4 Adam

    The thing is though, we already have card check. It’s just that now employers have a veto over whether employees use it to form a union. This is the main change in EFCA. And this is the message failure of the Democrats and the labor movement. The fact that Tom and Taniel I think miss this fact show just how awful the messaging has been so far. I think labor has been hoping they could sneak this one in without have to do the massive organizing and messaging needed to get it passed. Now they’re in danger of getting the thing watered down or not passed at all.

  5. 5 MSW

    Are there any other Republicans that would potentially vote in favor of cloture?

  6. 6 Ron

    WHY NOW?

    It is obvious that the Dems do not have the 60 votes until Franken is seated. Knowing that once this bill was introduced that all the Wal-Mart’s of the world would come out and take pot shots at the bill and wear down the supporters, I am asking the question why was it introduced now?

    The House could ram through a vote in 48 hours without any commitee meetings. It requires the Senate to actually pass it. So why was it introduced at a time when the Dems do not have the votes?

    What am I missing here? Are the Dems hell bent on passing this bill or seeing it defeated by a vote of 46 to 54?

  7. 7 Guy

    Ron - the timing could be because the Dems want to take advantage of Obama’s good approval ratings. Which they hope could prove the crucial leverage over some of the senators. You also have to worry about Kennedy not showing up - costing another vote.

  8. 8 Taniel

    Panos and Ron,

    I don’t think anyone expects a vote to be called before Franken gets in the Senate. It’s not like this debate will occur next week; it is expected to consume us over the next few months, and no one is suggesting Reid will call a vote before ensuring that he gets that extra MN vote.

  9. 9 Ryan

    Why should Labor drop the card check provision? Why would they continue to allow their employers dictate the way workers choose whether to join a union?

    The only way I could support dropping card check is if the elections truly were free and fair. As it stands right now, they’re not. Not by a long shot.

  10. 10 otherwise
  11. 11 Remi

    I agree with this. These aren’t votes on the substance of the bill. I think getting 60 votes on the procedural aspects of it is certainly there.

  12. 12 Rob

    Just spoke with a rep for Senator Kohl (WI) yesterday. While she wouldn’t say which way he would vote, she said he pulled his name from co-sponsorship. She was not sure why, but I’m hoping it is because he realizes that most of the people he represents realize that EFCA, which will undoubtedly cause more companies to become unionized, is no well-received by the people he represents. Wish other Senators would understand this too. Now we’ll see if Kohl is tough enough to stand up against his party.

  13. 13 Tom

    Rob - a lot of the people Senator Kohl and others represent support this and as importantly most of the people who voted for them do. It is a democracy and you Chamber of Commerce/Country club types can`t have everything you want.

  14. 14 Ron

    Nobody has really eaplained to me WHY introduce a bill that until Frankin is seated, does NOT have 60 votes to pass? It is STUPID to introduce legislation, place your supporters under the gun, and just leave them hanging out there with no ability to move the legislation off the front burner. If this bill hangs arond till Summer, it will never pass. All Obama can do is offer to any Senator who votes for this bill and is defeated a place in his Aministration or an Ambassador position someplace nice. I don’t think that is enough.

    Finally, has anyone considered the legality of forcing private companies into binding arbitration? That portion of the bill almost assures a US Supreme Court decision that the law is an unconstitutional “taking” and it throws the whole thing out. Eliminate that provision and maybe the fence setters will go for the law and if it is going to pass, then either get it done ASAP or pull it and recognize that the Dems leaders are incompetent.

  15. 15 Ron

    Specter is now against closure in EFCA, yet he was for it 2 years ago. What changed? How about introducing a bill you know you don’t have the votes for in EFCA and leaving those supporters to be subjected to harsh treatment without a net because there is no point in time when this thing gets voted on.

    The Dems are incompetent. The Unions spent 500 Million dollars for this? I want my money back!

  16. 16 DAR

    I’m new to all this - just doing some research and stumbled across this blog - but I can’t grasp why so many people think pushing this bill and emphasizing Unions is such a great idea. It sounds more like the death of Capitalism to me. I’ve worked the same blue-collar job for almost 25 years and can’t envision anything coming out of this except companies like mine going bankrupt in the process. Any insight from EFCA supports would be much appreciated.

  17. 17 Ralph

    DAR,
    Union membership is declining in most industries, and in general, union pensions are underfunded by billions of dollars. The card check provision in EFCA would eliminate or streamline steps which are currently required before workers can enter into a collective bargaining agreement. I believe that under this new provisions of EFCA, the decline of union membership would slow and you may even see unions make a comeback in this country. The rise of union membership will lead to an increase in dues which could provide funding for the currently underfunded pensions.
    I believe this is the union’s last stand. If the card check provision doesn’t get included in the version of EFCA that finally passes, I believe the unions will go the way of the dinosaur. Unions spent a heck of a lot of money to get Obabma and the Democrats elected. I like to think they went “all in” for this vote. Should be interesting to see how the hand plays out.

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