Few people expected Arlen Specter to show his hand so quickly, but the longtime Pennsylvania Senator delivered a speech on the Senate floor today to announce that he would vote against EFCA. “This is a particularly bad time to pass employee choice legislation,” he said. “I have made up my mind.”
The short take on this development:
- Policy: Specter was the only Republican who might have supported the legislation as it is currently drafted; his decision is thus a potentially fatal blow to Democratic hopes of passing the legislation with all its provisions, without watering it down. On the other hand, reports of EFCA’s death are somewhat exaggerated; sure, Specter’s announcement is a big setback, but other Republicans have kept the door open to supporting a compromise. Furthermore, Specter himself left the door open to supporting the bill in the future - perhaps as early as May 2010, when his primary headaches will be over.
- Election: While this is too little too late to endear him to conservatives, Specter’s move will save him from huge headaches in the GOP primary. On the other hand, it will cause him trouble in the general election, and he is now sure to be one of labor’s prime targets.
Now for the long take.
The missing 60th vote
Two weeks ago, I published a detailed head count of where individual Senators stood on EFCA. The situation was clear: Even if every single Democrat voted for cloture (a scenario that is far from certain, though certainly more likely than most realize), a 60th vote has to be found among Republicans - and business groups are so opposed to the legislation that finding a GOP Senator willing to cross the aisle was never going to be easy.
Arlen Specter was the obvious candidate to provide that 60th vote: Not only was the only Republican to vote in favor of cloture when EFCA came up for a vote in 2007, but he co-sponsored the bill! So today’s announcement is a dramatic reversal of Specter’s past stance - and that is why his decision is so important.
Particularly damaging to EFCA is that Specter firmly closed two of the doors that proponents were hoping could convince him (and other undecided Senators) to back the bill. For one, Specter made it clear that he would oppose the cloture vote and not just the vote for final passage. As I explained two weeks ago, that is a crucial distinction, as some conservative Democrats are expected to vote in favor of cloture (which is the only suspenseful vote) before voting against the bill’s passage to gain some political cover.
Second, Specter spoke against both of EFCA’s major reforms: card-checks and binding arbitration. “The issue which has emerged at the top of the list for me is the elimination of the secret ballot which is the cornerstone of how contests are decided in a democratic society,” he said, before immediately adding. “The bill’s requirement for compulsory arbitration if an agreement is not reached within 120 days may subject the employer to a deal he or she cannot live with. Such arbitration runs contrary to the basic tenet of the Wagner Act for collective bargaining which makes the employer liable only for a deal he or she agrees to.”
Some Democrats and labor advocates have been open to a compromise bill that would leave out card checks and keep binding arbitration, which many believe is the EFCA’s most important provision. Such an arrangement would put conservatives in a corner, since they have framed their battle against the bill as a battle for secret ballot elections. Yet, Specter’s decision to denounce binding arbitration closes the door to his supporting such a compromise.
Having lost their one Republican ally, EFCA’s proponents will now have to find the 60th vote on cloture elsewhere while making sure to keep all 58 Democrats (plus Al Franken, once he is seated) in toe. Lisa Murkowski, Olympia Snowe, Susan Collins and George Voinovich all voted against EFCA in 2007, but all eyes will now turn towards them.
None of these Senators is expected to vote for the bill as it is currently drafted - Specter was the only Republican who might have done that - which is why I wrote that this development is a potentially fatal blow to EFCA’s strongest version. Yet, these four Republicans might be convinced to vote in favor of the bill (at least for cloture) if some compromise is found, which is why reports of EFCA’s death are exaggerated.
In particular, Murkowski clearly opened the door to the possibility of compromise support last month. The question now become what compromise she would be comfortable with, and could she be in favor of the binding arbitration provisions. (The last reason not to bury EFCA or water it down too much yet is that Specter opportunistically left the door open to changing his mind if economic conditions change; such a moment would likely not occur before next spring’s Republican primary. I talk about this more below.)
Alternatively, is it worth for labor and Democrats to delay EFCA until the 112th Congress, hoping that Democrats will finally cross the bar of 60 seats after the 2010 midterms and thus not need to water down the legislation?
Survive the primary, but suffer in the general election
In his speech, Specter made sure to portray his decision as a highly significant one. “It appears that 59 Democrats will vote to proceed with 40 Republicans in opposition. The decisive vote will be mine,” he said. As I explained above, Specter might not be as important as he gives himself credit for since other Republican Senators have left the door open to supporting some compromise.
Yet, his desire to dramatize his speech is not surprising: Next year, the Pennsylvania Senator will probably have to face a primary challenge from the right from former Rep. Pat Toomey, and a vote in favor of EFCA would have seriously jeopardized whatever chances Specter has left of surviving that showdown.
By announcing that he will vote against EFCA and doing so early, Specter should get some conservative praise - and that will be particularly welcome for him given all the blame he has gotten for voting in favor of the stimulus bill. On the other hand, Specter has gone too far to the center for his opposition to EFCA to do much to save him. Think of his announcement less as a way to score political points than as a way to avoid bigger problems.
Make no mistake about it, Specter’s critics are undeterred by his latest move. In a harsh statement, Toomey blasted the Senator’s opportunism:
The difference between Specter’s vote on the big government stimulus bill and Specter’s vote on card check: a threat in the Republican primary. It’s nice to see Sen. Specter reverse his position in a positive direction on card check, but I wish it didn’t take primary opposition to get him to do it.
The problem for Specter is that his decision will create huge complications in the general election, if he makes it that far. The Senator has long benefited from some support from Democratic-voting voters, and labor groups had signaled that they would have helped him win re-election had he supported EFCA. Now, unions will turn their wrath against the Republican Senator (the AFL-CIO president called his speech a “rebuke to working people”); Pennsylvania is a labor-heavy state, and Specter could face more opposition from unions than he has ever before once he is left to face a Democrat.
Opening the door for a future (re)reversal
Curiously, Specter decided not to go all the way in his opposition to EFCA, and he left the door open to a future flip-flop on his flip-flop:
The problems of the recession make this a particularly bad time to enact Employees Free Choice legislation. Employers understandably complain that adding a burden would result in further job losses. If efforts are unsuccessful to give Labor sufficient bargaining power through amendments to the NLRA, then I would be willing to reconsider Employees’ Free Choice legislation when the economy returns to normalcy.
On the merits, Specter’s argument is flawed. For one, the financial crisis makes it a particularly important time to pass EFCA as workers are hit particularly hard by the deteriorating economy and unions have an even harder time getting organized and thus protecting workers under such circumstances. Furthermore, the economic crisis provides a sense of urgency to reform the system - a sense that will disappear when economic indicators start improving.
Politically, what could Specter possibly be trying to accomplish by saying that he might be “willing to reconsider?” That will certainly get unions to not criticize him (this is their first legislative priority, and labor is already infuriated by Specter’s speech), and it will only give his conservative critics proof that the Senator should not be trusted to remain constant on anything. Toomey jumped on that opening in the statement he released reacting to Specter’s announcement:
When Senator Specter does a flip flop, it’s worth checking the fine print. On the Senate floor today he said: ‘I would be willing to reconsider Employees’ Free Choice legislation when the economy returns to normalcy.’ In other words, if he thinks his political fortunes have improved, he will deny workers a secret ballot after all.
This controversy raises an interesting question: Is the Senator saying that he would be willing to vote in favor of EFCA in the summer of 2010? That’s in little more than a year, and still in this Congress. Think about it: Enough time will have passed that the economy could be improving, and the Republican primary will have been resolved. If Toomey won, Specter no longer has anything to lose; if Specter moved on to the general election, he would have every reason to reverse himself and win for EFCA.