While it’s unclear how soon these nominations will be considered by the Senate, the confirmation hearings do provide the Senate with an opportunity to review much of the recent NLRB activity that has so alarmed employers. The Board is slated to make decisions in many key cases, including Lamons Gasket Company, which addresses issues with card check certification, and Roundy’s, dealing with workplace access for union organizers. In addition, the Board has already begun the process of proposing new rulemaking that seeks to make sweeping changes to employee relations by requiring employers to post a notice to employees of their right to unionize. Board Member Hayes has expressed the view that the NLRB lacks the necessary authority to propose this rulemaking, which would require employers to display posters of union rights as well as in some cases make employers distribute such a notice to employees through e-mail.

The National Association of Manufacturers has long been troubled that the current NLRB, which includes the controversial Craig Becker, intends to bend its authority to implement the goals of the jobs-killing Employee Free Choice Act, skewing the balance of labor relations towards labor unions. The changes sought by the NLRB produce a tremendous amount of uncertainty for employers, which in turn threatens jobs creation and the economic recovery.

We hope that the Senate uses the confirmation process to fully review the Board’s recent action – and makes it clear that the NLRB should not seek to change U.S. labor law without the necessary Congressional action.

I broadly view the role of Manufacturing and Services as three-fold: to convene, to collaborate and to connect.  If confirmed, under my leadership, Manufacturing and Services will convene experts both inside and outside of the federal government to develop solutions to the issues faced by U.S. industry.  Manufacturing and Services will also collaborate with Congress, with agencies across the federal government and with state and local governments to develop solutions to sustain and increase the global competitiveness of U.S. industry.  Further, Manufacturing and Services will work to connect industry to the resources and tools available in the federal government to forge a path to sustainable, highly-skilled jobs for the 21^st century economy.

Her full prepared statement is here.

Lamb-Hale is currently Deputy General Counsel at Commerce. Before joining the Obama Administration, she was managing partner of the Detroit office of the law firm of Foley & Lardner LLP where she specialized in business restructuring.

The committee has scheduled a vote on Lamb-Hale’s nomination for Thursday.

During the Bush Administration, the assistant secretary post in Commerce was often referred to as “the manufacturing czar.” That short-cut title has now been assumed by Ron Bloom, the President’s senior advisor for manufacturing policy, a former Steelworkers official and investment banker.

[They] are reopening a fight to make telecommunications companies liable for trillions of dollars for complying with a presidential directive to assist in a “warrantless surveillance” program against suspected terrorists. This has negative consequences for public safety, for the already staggering economy and for the cause of basic fairness and justice.

Even though the Senate just last year – after many months of debate – gave immunity to the telecoms for participating in the program, some senators want to take immunity away.

The Times regards the legislation as typical Senatorial solicitousness toward trial lawyer campaign contributors, since vitiating immunity  would revive the 46 lawsuits against the companies dismissed in June. (For more history, see our Friday post, “FISA Update: Civil Immunity? No, We Changed Our Minds.”) We tend to think the proposed policies derives more from civil libertarian absolutism and a distrust of any government surveillance; since these policies are generally unpopular and cannot be enacted in Congress, some turn to the courts to achieve the same ends.

Whatever the case, as the Times contends, removing immunity is wrong in terms of “basic fairness and justice.” It’s akin to reopening a case despite the statute of limitations having expired, or an ex post facto prosecution. The Times concludes:

The Senate last year granted immunity only after instituting a careful series of safeguards for civil liberties. There’s no need to reopen that careful compromise just for the sake of a few dozen wealthy lawyers trying to get still wealthier – especially when it would come at the expense of the nation’s economic health and safety.

UPDATE (Sunday 11:15 a.m.): Sen. Russell Feingold (D-WI), one of the bill’s cosponsors, submitted and then withdraw an amendment last week during the Judiciary Committee’s markup of the Patriot Act extension. His amendment would have re-opened the FISA debate by banning bulk collection of data; he quickly withdrew it, leaving the impression he was just making a point.

Sen. Chris Dodd (D-CT) introduced S. 1725, the Retroactive Immunity Repeal Act, on September 29 joined by Sens. Feingold, Leahy and Merkley. The bill would “remove retroactive immunity protection for electronic communications service providers that participated in the Terrorist Surveillance Program and for other purposes.” (Senators’ news release.) Vitiating legally established immunity is disturbing in any context, but in this case, it’s especially troubling because it would allow the continuation of legal harassment of good corporate citizens.

The Senators are reviving a debate settled in 2008 when Congress passed the FISA Amendments Act, H.R. 6304, to extend the federal authority (Foreign Intelligence Surveillance Act, or FISA) to conduct surveillance of overseas electronic communications. These communications — phone calls, text messages, etc. — may have had a U.S. nexus, i.e., crossing through U.S. network or involving foreigners calling into the United States to speak to a non-citizen.  However, as applied to overseas communications, the Justice Department held that this surveillance did not require a judicial warrant; passage of the FISA Amendments reaffirmed that position.

A key issue in the FISA reauthorization was whether civil immunity should be granted to telecommunications companies that complied with federal orders to assist in the surveillance.  Lawmakers supported granting civil immunity in the wake of the September 11 terrorism attacks, concluding that companies should not be punished for helping to stop terrorism, especially when the companies are following what they understand to be legal orders.

But as Jed Babbin, a former Deputy Undersecretary of Defense, wrote in Human Events in June, 2008, an early effort to enact that immunity was fought by the cash-seeking litigation industry:

A bipartisan bill — giving telecommunications companies retroactive immunity from civil lawsuits arising from  cooperation in the National Security Agency’s program — had passed the Senate by an overwhelming vote last fall.

That bill hit a wall when the trial lawyers asked [House Speaker Nancy] Pelosi to preserve their chance to earn huge contingency fees in lawsuits against the telecoms alleging the sort of class-action tort claims used to blackmail big companies into high-dollar settlements. There are at least forty such suits already in the federal courts.  The cases are brought on behalf of people who don’t know if they’ve been listened to and — because they haven’t been hurt by whatever may or may not have been done — can only speculate about how they might have been damaged.

These lawsuits aren’t merely the latest evolution in class action ambulance chasing. They are a form of “lawfare”: the use of the courts to interfere in America’s conduct in the war the terrorists are waging against us.

The bill did finally pass with civil immunity provisions intact; Senate approval came on a  69-28 vote with now President Obama voting yes. (New York Times, July 10, 2008, “Senate Approves Bill to Broaden Wiretap Power“). In June 2009, U.S. District Judge Vaughn Walker dismissed 46 lawsuits against the telecom companies, which had in accordance with the law supplied documentation that showed they were complying with an official order. (Walker’s ruling.)

It’s dismaying to see the civil immunity issue come up again, even though the Senators’ bill is unlikely to make progress. As we wrote repeatedly in the “FISA Update” series of posts, the issue is much broader than just the specific actions of U.S. telecommunications companies. At stake is good corporate citizenship: whether companies should help defend the nation. Legislation resurrecting the telecom lawsuits tells U.S. businesses that no, it’s not your problem if terrorists use your services or products to plan the murder of Americans. If you help try to stop them, you will be punished by lengthy, expensive litigation as activists, trial lawyers and civil liberties absolutists seek to achieve national security policy objectives — and in the case of the attorneys, cash settlements — through the courts.

A federal judge on Wednesday upheld an immunity law for telecommunications companies and dismissed dozens of lawsuits by customers who accused AT&T and other carriers of collaborating in illegal government wiretapping.

The law, pushed through Congress last year by President George W. Bush, validly authorized the attorney general to protect phone companies from liability without having to publicly disclose whether a company had actually allowed the government to eavesdrop on its customers, said Chief U.S. District Judge Vaughn Walker of San Francisco.

Hours later, however, Walker rejected the Obama administration’s attempt to sidetrack another suit challenging the legality of Bush’s electronic surveillance program and scheduled a hearing for Sept. 1.

The law, the FISA Amendments Act, passed through Congress last year with strong bipartisan support after thorough debate. Critics of the Administration’s foreign policy had targeted the telecommunications companies in the courts as a tactic in their attack against U.S. surveillance practices. The law granted civil immunity to the telecoms if they demonstrated they were following an official government request to assist in the surveillance.*

In passing the law that led to Judge Walker’s ruling, Congress affirmed the important principle that private companies should not be punished for acting in good faith when following legitimate government requests for assistance in defending the nation from terrorist attacks. Good corporate citizenship must not be an invitation for activists and trial lawyers to sue private parties as proxies in foreign policy and national security disputes.

UPDATE (noon): Judge Walker’s ruling is available here, posted by the Electronic Frontier Foundation. Of course, the predictable reaction, “EFF and ACLU Planning to Appeal Dismissal of Dozens of Spying Cases”

*The EFF and ACLU speak in terms of surveillance of U.S. citizens, but in fact the targeted surveillance was overseas communications and communications among non-U.S. citizens.

Mr. Bond also said that Mr. Holder told him in a private meeting Tuesday that he will not strip the telecommunications companies that cooperated with the National Security Agency after the Sept. 11, 2001, attacks of retroactive legal immunity from civil lawsuits — removing another potential sticking point among GOP senators.

Guaranteeing civil immunity for the telecommunications companies that assisted in what they understood to be lawful surveillance of foreign communication was necessary for enactment last year of the FISA Amendments Act, clear recognition that the private sector should not be punished for assisting authorities in preventing terrorists from blowing up Americans. See earlier posts.

The comments have prompted some dancing from Holder’s camp and supporters, but we regard Senator Bond as reliable on intelligence matters, always.

(Hat tip: Andy McCarthy.)

On the Senate Intelligence Committee, Senator Bond worked tirelessly during the debate over the renewal of the FISA surveillance authority, defending the ability to conduct legal, necessary surveillance of foreign terrorists. We especially appreciated his vigorous defense of civil immunity for the telecommunication companies that assisted in legitimate requests to monitor foreign-based communications; Senator Bond recognized the importance of not punishing the private sector through lawsuits designed that would undermine national security while rewarding trial lawyers.

From Bond’s news release:

“In a world today where enemies are real – the kind who behead others based on their religion – it is important to remember there is a lot of real estate between a political opponent and a true enemy,” said Bond. “Our cause is bigger than ourselves. Events in the world and threats will continue to challenge us in significant ways.”

Just so.

There are still two years to go in the Senator’s term, and as a member of the Senate and Environmental Works Committee, he definitely has wisdom and experience to offer in the upcoming debate over transportation and infrastructure issues.

Good luck, Senator, and thank you.

Today, the 9th U.S. Circuit Court of Appeals sent the most prominent of the anti-telecom lawsuits, the class-action Hepting v. AT&T, back to district court. According to a report in Wired, the order simply stated:

In light of the FISA Amendments Act of 2008, Pub. L. No. 10-261, we remand this case to the district court. We retain jurisdiction over any further appeals.

Presumably now AT&T will provide the needed documentation and District Judge Vaughn Walker will dismiss the lawsuit.

As Hans Bader of the Competitive Enterprise Institute discusses today at the OpenMarkets.org blog, the granting of retroactive civil immunity is clearly constitutional. It’s also a matter of good public policy: Punishing private companies for legally assisting in surveillance of America’s enemies would chill further assistance. And it’s certainly not a good idea to reward people — in this case, trial lawyers, privacy absolutists and leftist opponents of a strong national defense — who pursue policy disagreements in the courts, attacking private enterprise in the process.

Previous posts here.

We don’t intend to follow this aspect of the FISA debate because it’s the aggrieved versus government and the issue of civil immunity for the private sector is not raised. (As this New York Sun story notes.) Perhaps that side of the litigation will be handled by the Electronic Frontier Foundation, which for now is just protesting the new law in order to raise money.

Although, the congeries joining the ACLU in its suit is interesting and colorful.

The SEIU, eh? They’re just so busy with everything these days.

An accurate and quick summary from CQ Politics.