WASHINGTON — In the recent midterm elections, voters gave Republicans control of the House and slimmed the Democrats’ majority margin in the Senate. Those results could have a big impact on legislation affecting attorneys in a host of areas.
Lawyers should not expect any major new laws expanding civil liability for employment bias claims.
“With the shift in power in the House of Representatives, I think it will be difficult if not impossible [for Democrats] to pass controversial employment law legislation,” said Ilyse Schuman, shareholder in the Washington office of Littler Mendelson and a former congressional staffer and policy advisor on employment law issues.
The lack of appetite for such measures is already apparent. More than a year after the House passed the Paycheck Fairness Act, which could have subjected employers who discriminate in pay on the basis of gender to compensatory and punitive damages, the measure was defeated Wednesday in the Senate by a GOP-led filibuster.
“I think the election certainly didn’t improve the prospect of that bill passing and becoming law,” Schuman said.
Other ill-fated employment-related bills facing slim prospects in the new congressional session include the Protecting Older Workers Against Discrimination Act (H.R. 3721, S. 1756), which would overturn the Supreme Court’s ruling in Gross v. FBL Financial Services. That ruling eliminated mixed-motive disparate-treatment claims under the Age Discrimination in Employment Act. The bill sits in committee in both houses.
The Arbitration Fairness Act of 2009 (H.R. 1020, S. 931), which would bar mandatory pre-dispute arbitration in most contracts, including those in the employment context, also has failed to gain any steam.
But the shift doesn’t mean that the next two years will be without policy changes in the employment arena.
“Employers should be very mindful of changes in the regulatory scheme,” Schuman said. “Where things cannot be accomplished legislatively, [the White House] may implement some of the changes administratively.”
And there will likely be Republican-led efforts to make changes to the health care law, which also affect employers and employees.
While Democrats are still in control in the Senate — where President Barack Obama’s judicial picks are vetted — the party’s narrowed majority won’t make it any easier for the White House’s judicial nominees to make their way out of the Senate and onto the bench.
So far, Obama’s nominees have faced a judicial logjam, with confirmation votes being held up, whether by the existence of more pressing legislative matters or by Republican lawmakers seeking to send the White House a message about matters often unrelated to the judgeship.
With fewer Democrats in the chamber, things are not likely to get better.
“Obviously more votes is better than fewer votes” from Obama’s party, said Caroline Fredrickson, executive director of the American Constitution Society for Law and Policy.
The raw number of senators of each party is only part of the story, Frederickson said, noting that Republicans held a majority of about the same size when President George W. Bush was in the White House.
But while Bush’s judicial nominees were confirmed fairly quickly, under Obama’s watch there remains a vacancy rate of 15 percent in federal trial court judgeships and 11 percent in the circuit courts.
Fredrickson said that when political rancor exists, stalling judicial nominees is a common tactic — and that the slow pace of judicial confirmations is reaching a crisis level.
“Hopefully, the vacancy rate will start to hit home” for lawmakers soon, Fredrickson said.
After the successful passage of the Fair Sentencing Act, which reduced the disparity between federal sentences for crack cocaine and powder cocaine offenses, some Democrats were looking to build on that momentum.
For example, Rep. Robert “Bobby” Scott, D-Va., co-sponsor of the act, has pushed for other measures, including one that would reduce the sentencing disparity.
But given the Republican’s control of the House in the next congressional session, “the chances of that bill passing are not good,” said Bobby Vassar, chief counsel for the House Judiciary Committee.
Another measure proposed by Scott would make the change in the crack sentencing disparity retroactive.
“Again, I don’t know what the prospects of that are,” Vassar said at a recent ABA-sponsored event in Washington, D.C., noting that there is still a chance that the lame-duck Congress will push it through in its final days. “But going forward, this is going to be a tough measure to make progress on.”
However, there may be room for compromise, Vassar said.
“Congress may direct the U.S. Sentencing Commission to take a look at areas of concern,” Vassar said. “That would leave the processes to the expertise of the commission. I think that may be the way they’ll go.”
There are other initiatives that will be affected by the new Congress. For example, a measure to overturn the Supreme Court’s rulings in Ashcroft v. Iqbal and Bell Atlantic Corp. v. Twombly by imposing a notice pleading standard in federal civil actions may have a tough time finding a legislative champion. Sen. Arlen Specter, D-Pa., the main advocate behind the Notice Pleading Restoration Act (S. 1504), lost his re-election bid in the primary season. The legislation has languished in the current session and will likely face dimmer prospects if reintroduced next year.
The Medical Device Safety Act (H.R. 1346, S. 540) has also seen little action in either house of Congress since being introduced last year. It would have overturned Riegel v. Medtronic and allowed patients to bring suit in state court against makers of faulty medical devices, but has faced opposition by GOP lawmakers who fear it would lead to a flood of litigation.