Few Democratic members of Congress have spoken up on the National Labor Relations Board’s unprecedented and extreme complaint against The Boeing Company for making a reasonable, legitimate management decision by building new production facilities in South Carolina. It’s a tough decision to defend, so those commenting have relied on a “process” argument — let the process work.

Senate Majority Leader Harry Reid hailed the NLRB as an example of the “checks and balances” envisioned by the Founding Fathers. Sen. Tom Harkin (D-IA) levied accusations, claiming, “Powerful corporate interests are pressuring Members of this body to interfere with an independent agency rather than letting it run its course.”

On Thursday, it was Sen. Richard Blumenthal’s turn to come to the Senate floor to defend the NLRB. The Connecticut Democrat made the most coherent, seriously framed argument based on process we’ve seen: “The NLRB and Lafe Solomon, the acting general counsel, have not only the right but the responsibility to investigate and act where the facts and the law establish a right and obligation to do so. So no one should be trying to prejudge this case before it goes before the administrative judge, and no one should be seeking a pass from the appropriate process, and no one should be seeking to intimidate or to interfere with this lawful proceeding. I come to the floor today because of the prospect of exactly that danger  occurring.”

Yet one specific example Blumenthal cites is the decision by Chairman Darrel Issa (R-CA) of the House Oversight Committee to request documents on the Boeing complaint from the NLRB. But that’s the only example. Otherwise, the Senator seems to objecting to other elected officials publicly criticizing a federal agency.

These actions and some others are an attack on the integrity of the NLRB, an attack on its ability to make decisions and enforce the law as the Congress has instructed it and required it to do based on decisions involving the facts and the law alone. The NLRB is part of our justice system, and it should be given the opportunity to do justice in this instance. It should be given the opportunity to protect fairness and peace at the workplace, which is ultimately its mandate and its very solemn responsibility, and its tradition.

The NLRB is part of our justice system? Really? It does not behave that way. You have the NLRB’s public affairs office issuing press releases announcing the agency’s rulings against business and posting “Fact Checks” that are just political spin. Lafe Solomon commented publicly on the case, restating Boeing’s supposed offenses, before he retreated behind the protection of “let the process work.”

The agency is behaving as a political actor, and the complaint against Boeing is so at odds with the board’s mandate, solemn responsibility and tradition — to use Blumenthal’s terms — that silence would be an abdication of Congress’ oversight and policymaking responsibilities. If the NLRB’s complaint stands, the federal government will replace management in determining company locations and hiring. Such a radical restructuring of the U.S. economy and such an extreme expansion of federal power is at heart a policy matter, which in our system of government is the purview of Congress.

When an agency runs amok like the NLRB has done, it has abandoned process. That’s why the process arguments made by its defenders are just beside the point.

In promoting his new online column, “The Persecution of Boeing,” National Review Editor Rich Lowry commented in NRO’s The Corner blog:

The NLRB is on very tenuous ground here and will almost certainly lose in court. But one expert in these matters was telling me yesterday he wouldn’t be surprised if the game is to try to harass Boeing into agreeing to some sort of card check-like process to unionize the South Carolina facility.

That would consistent with our observation in the May 10 post, “NLRB Already Talking About ‘Settlement’ in Boeing Case.”

The term of art is a “neutrality agreement,” in which a company agrees with a labor union not to request a secret-ballot election if the union attempts to organize a facility. Often management goes that route after suffering a corporate campaign (or threat of a corporate campaign) in which the union blackens the reputations of the company and its executives.

But in this case, it’s the National Labor Relations Board leading the corporate campaign in support of the International Association of Machinists and Aerospace Workers.

The strategy make sense politically: Attack the critics, pummel the opposition into staying quiet. You can see it being played out in Congress, too. On Wednesday, Senate Majority Leader Harry Reid (D-NV), evoked the Founding Fathers and “checks and balances” into decrying any criticism of the NLRB. From The Congressional Record:

This kind of interference is inappropriate, it is disgraceful and dangerous.We wouldn’t allow threats to prosecutors or U.S. attorneys trying to stop them from moving forward with charges they see fit to bring to the courts, and we shouldn’t stand for this. It may not be illegal, but it is no better than the retaliation and intimidation that is the fundamental question in this case, and it should stop.

The Founders are telling critics of the NLRB to shut up? Well, in this case, it’s Congress and the states in the form of attorneys general that are providing the checks and balances to restrain a runaway federal agency.

Sen. Tom Harkin (D-IA) followed up Wednesday on the Senate floor, arguing in effect that the NLRB should be above criticism because it is an independent Executive Branch agency. The Senator conceded he did not know all the facts of the case, but knocked Boeing around and made the union’s arguments. He then declared: (continue reading…)

Senate Majority Leader Harry Reid (D-NV) has filed cloture on the long pending Paycheck Fairness Act (S.3772) which queues the bill up for possible action during the lame-duck session of Congress. The labor unions, trial lawyers and other activists are going to find it hard to make a persuasive case for legislation that will expose employers to the threat of unlimited damages and increase litigation costs while doing little to actually prevent instances of illegal discrimination. Many of these groups and Members of Congress try to diminish the economic impact, asserting that small businesses are exempt from the bill. Recently Rep. Chellie Pingree (D-ME) claimed: “It is also important to say that this only applies to big business, this does not apply to the sandwich shop around the corner.”

Really? Really? Well let’s take a look…

The legislation’s Section 11 is in fact named: “Small Business Assistance”. This provision states that the bill would go in effect 6 months after the date of enactment. Additionally the bill directs the Department of Labor and the EEOC to provide small businesses “technical” assistance to comply with the new law as well as reiterating that the bill would apply to employers covered by the Fair Labor Standards Act (FLSA).

Well who is covered by the FLSA? For this we turn to Department of Labor’s Wage and Hour Division, which enforces that law. And, according to the Labor Department “almost every employee working in the United States” is covered by the FLSA.” Well then, who’s exempted?

Employers that have fewer than two employees and do less than $500,000 a year in business would not be covered. That really is a SMALL business. (continue reading…)

Before the Senate adjourned last night Senate Majority Leader Reid filed cloture on three bills, setting up a scenario for considering the legislation during the first week that the Senate comes back after the mid-term elections. Included in this package is the Paycheck Fairness Act. This means that it’s likely the Senate will vote on the measure in the week of November 15th.

The National Association of Manufacturers has been urging Members of Congress not to poison a lame-duck session by pushing legislation that organized labor has been agitating for, of which the Paycheck Fairness Act is a prime example. It is disappointing that Senate leadership decided to queue up consideration of the Paycheck Fairness Act, a bill that will make it more difficult for employers to create and retain jobs especially in such trying economic conditions.

As Members of Congress head off on the campaign trail, we hope that they will understand that voters are primarily focused on two things: jobs and the economy. The efforts to bring up the Paycheck Fairness Act have been largely motivated by political considerations, not sound economic policy. Well, then, Senators should consider the politics: Voters are not inclined to support bills that threaten the fragile economic recovery. In fact, they may actively reject those policies comes Nov. 2.

People are used to hearing epithets like “greedy CEOs” on the campaign trail, but on the Senate floor?

Senate Majority Leader Harry Reid, Congressional Record Page S7456 (our emphasis):

When that funding gets to where it is going, as many as one-half million people who are looking for work today will soon be on their way to a new job. We fought so hard for this bill against such stubborn minority opposition because we know we have to do everything we can to get people back to work. That means we have to work just as hard to create new jobs as we have to protect existing ones. It means that when a corporation tries to take away someone’s job in Nevada and send it halfway around the world, we have to stop them. We cannot let the greedy CEOs do that anymore, and that is exactly what we are going to do this week. We are going to take away the incentives that our corporations have to send our jobs overseas and give them powerful new incentives to keep the jobs right here in America.

Then there’s this:

Let’s use this week to remember whom we work for: middle-class families and the hard-working people who built this country and will rebuild it toward recovery; middle-class families and not corporations that take advantage of tax loopholes at their expense; American workers and not foreign companies that want to take away their jobs.

It’s very difficult to see how this kind of rhetoric creates an environment conducive to investment and hiring in the United States.

White House Advisor Valerie Jarrett has written an op-ed in today’s Washington Post in support of the Paycheck Fairness Act. Her piece uses outdated and inaccurate data to misrepresent the alleged pay gap between genders. In claiming women earn only 77 percent of what their male counterparts do, Ms. Jarrett conveniently ignores updated statistics from the Department of Labor that show the gap is much smaller. More interestingly, she ignores a more comprehensive analysis of the issue that the Department of Labor commissioned by the CONSAD group. This analysis available here was conveniently removed from the Department of Labor’s website after the Obama Administration took over the agency.

While the specifics of the alleged pay gap can be debated ad nauseum by economists, we understand why the White House felt it necessary to offer an op-ed to the Post the paper soundly rejected the proposal in an editorial in January 2009.

While we don’t always agree with the Post’s ed board on many issues, we strongly concur with their position on the bill. The Paycheck Fairness Act will not prevent actual instances of illegal pay discrimination. It will, however, allow the Federal government to second-guess almost all employee wages and encourage lawsuits that expose employers to unlimited damage awards. The bill substantially restricts employers’ ability to base pay decisions on legitimate factors such as professional experience, education, training, employer need, local labor market rates, hazard pay, shift differentials and the profitability of the organization. The legislation could  expose employee wages or salaries to peers, family, friends and competitors.

That’s bad news for employees, as employers are already facing tremendous amounts of uncertainty in today’s economic conditions.

It’s unfortunate that the White House and Senate leaders are pushing this type of legislation before the midterm elections for what looks to be political reasons. Congress should instead focus on getting the economy back on track and not make it harder for manufacturers to create and retain jobs.

The Senate on Wednesday told business owners to spend their money on IRS paperwork instead of hiring employees when it rejected the Johanns amendment to repeal Section 9006 of the new health care law, which requires that businesses track and report any dealings with vendors that exceed $600 by filing an IRS Form 1099.

The Senate then invoked cloture on the small business finance bill, H.R.5297, Small Business Jobs and Credit Act.

Senate Majority Leader Reid commented: “This is an important piece of legislation. It is the most significant thing we have done since the stimulus bill was passed to create jobs.”

Sen. Mary Landrieu, Chairman of the Senate Small Business Committee, said she was introducing a bill to repeal Section 9006 with different “pay fors” than proposed in the Johanns amendment.

We are going to repeal I am going to file a bill right now to take care of it. We are going to repeal
1099. We are not only going to repeal the portion that was put in by health care–which was not done intentionally, but there are sometimes unintended consequences. Anybody around here who thinks they can write perfect pieces of legislation–they cannot. When you do something wrong, you should correct it. We are going to correct it.

But in addition, my bill that I am going to file right now is going to repeal the $600 requirement that has been in the law for 62 years, and we are going to raise that threshold to $5,000, clean up the way small businesses have to report, and do something good for small business in America. …[snip]

I have heard small businesses in my State, and I know we made a mistake on this 1099 and we are going to fix it. But it does not have to be fixed this morning. It doesn’t even go into effect for a year and a half.

Goodness knows small business reporting could stand a good clean up, but with respect — uncertainty. UNCERTAINTY! Businesses considering expansion or new hiring can gain no confidence about their future costs from a Congress that may or may not take up the issue sometime in the future, possibly. The IRS reporting requirement hangs like the Sword of Damocles over small business.

Sen. Landrieu’s new bill is S. 3777, to amend the Internal Revenue Code of 1986 to increase the threshold amount subject to information reporting at source. The text is not yet available.

Senate Majority Leader has pulled the plug, flipped the switch, powered down and shut off Senate consideration of an “energy bill” this week.

Reid announced the change in plans to reporters this afternoon. He blamed Republicans, saying, “We tried jujitsu. We tried yoga. We tried everything we can with Republicans to get them to come along with us and be reasonable.”

A Fox News blog reports this edifying statement: “Sen Bob Menendez, D-NJ, chairman of the DSCC, bashed Republicans for having ‘special interest’ policies and said this would be the key question of the 2010 elections: ‘Whose side are you on?’”

The bill would have lifted the liability cap on offshore drilling accidents, driving all but the largest operators out of the Gulf of Mexico. More …

• The Hill, “Reid abandons oil-spill, energy legislation“
• AP, “Senate Dems delay vote on oil spill, energy bill“
• Mother Jones, “Reid Punts Spill Bill to September“

Last week we alluded to the absence of any media reporting on the American Association for Justice’s annual convention in Vancouver, B.C., observing, “The AAJ has yet to publicize its major speakers at this year’s event — any leading U.S. politicians or candidates? — although trial lawyer extraordinaire Ron Motley will receive the AAJ’s Lifetime Achievement Award.”

David Fredosso of The Examiner newspapers answers our parenthetical question in a blog post, “Trial lawyers raise money for Senate Dems at event in Canada“:

Republicans are pouncing on Sen. Harry Reid, D-Nev., for joining a group of politically active trial lawyers last night in Vancouver, British Columbia, to raise money for himself and other Democratic Senate candidates. The event occurred at the American Association for Justice convention.

Contributors were invited to give up to $43,200, with the default allocation going 20 percent to Reid, 9.3 percent to Sen. Michael Bennet, D-Colo., and about 7 percent to ten other Democratic Senate candidates.

Only coverage we see so far. [Update: Here's CNN's blog.] Trying to avoid examination of its political activism, AAJ has done little to publicize its activities in Canada outside of its own membership. Not eve any Tweets.

UPDATE (3:52 p.m.): CNN’s Political Ticker blog also has the story, reporting, “According to a Democratic source, eight Democratic Senate candidates also attended the fundraiser, which was held in Vancouver, British Columbia. One of the eight, Rep. Charlie Melancon of Louisiana, became the target of an NRSC email release Monday afternoon.” Yes, the NRSC is milking this for all its worth. You would think the AAJ would shout its influence to the world, wouldn’t you?

UPDATE (7:15 p.m.): Lynn Sweet of The Chicago Sun-Times has the Illinois angle. Why would Senate candidates be embarrassed about attending a trial lawyers’ convention to raise campaign funds? British Columbia. It must be the B.C. connection.

The Senate voted 59-39 Thursday evening to pass H.R. 4173, Wall Street Reform and Consumer Protection Act, which has legislatively supplanted S. 3217, Restoring American Financial Stability Act. (Because the House bill title is more achievable, the Senate title an overreach?)

The BBC this morning highlighted three representative quotes on the legislation.

President Obama: “Over the last year, the financial industry has repeatedly tried to end this reform with hordes of lobbyists and millions of dollars in ads, and when they couldn’t kill it they tried to water it down. Today, I think it’s fair to say these efforts have failed.”

Sen. Richard Shelby (R-AL), ranking member of the Senate Banking Committee: “Judgment will not be rendered by self-congratulatory press releases, but, rather, by the marketplace. And the marketplace does not give credit for good intentions.”

Senate Majority Leader Harry Reid (D-NV): “We’re bringing accountability to Wall Street because we are accountable to the American people. The Bill we passed … has a message for both. To Wall Street, it says: no longer can you recklessly gamble away other people’s money. It says the days of ‘too big to fail’ are behind us. It says to those who game the system: the game is over.”

The White House blog promoted the President’s statement with the headline, “A Big Win Over the Lobbyists on Wall Street Reform.”

Two questions:

How do America’s leaders restore confidence in the U.S. financial system by attacking the motives and actions of the people who embody that system?

Were the disagreements over the legislation really just representative of bad faith, greed and self-interest?