Extras - Commentary on the Legislative Process

Beth Wellington is a Roanoke, Virginia based poet and journalist. She is a contributing editor to the New River Free Press, a book reviewer for the Roanoke Times and a member of the Southern Appalachian Writers Cooperative (SAWC) and the Appalachian Studies Association. From 1980 to 1997, she was the founding Executive Director of New River Community Sentencing, Inc. in Christiansburg, Virginia and its predecessor, New River Community Action's Community Sentencing Program. She contributes to both SourceWatch.org and Wikipedia.org. Beth's blog on culture and politics is The Writing Corner.

In Return of the Jedi, the 1983 installment of his Star Wars series, director George Lukas introduces Jabba the Hutt, a slug with covetous eyes who ensures his protection, according to the official web site “with a screen of henchmen and hired guns.”

Back on December 4, 2004, "Gregorius alexandrinus, pictor mendacrium stultorumque" (Gregory of Alexandria--painter of liars and idiots) of Hail Dubyas posted his cartoon, "Jabba the Hastert"  in response to the House Speaker Dennis Hastert "majority of the majority policy" outlined by Washington Post staff writer Charles Babington in the November 27, 2004 story, Hastert Launches a Partisan Policy.

Gregorius shows Hastert as the slug, with a caption “And if you Dummycrats are thinking that our president’s outstretched hand of bi-partisanship means that we’d occasionally compromise with you, just remember that John Kerry is now a coffee table at the RNC, Princess Pelosi.“

Hastert had ditched intelligence legislation, which he, Bush and the majority of Congress supported, saying Congress would only pass bills which most House Republicans backed. I’d speculate that this “majority of the majority” policy led to the hours spent debating four amendments to the reauthorization of the expiring portions of the Voting Rights Act of 1965. (See my story here last month.) When Hastert needed Democrats' votes to defeat the amendments and pass the bill in an election year, rather than be embarrassed, he blinked.

Shortly after 9:30 a.m. on July 27, Bush signed the bill to great fanfare on the south lawn of the White House, surrounded by representatives of the Rosa and Raymond Parks Institute and the families of Fannie Lou Hamer and Coretta Scott King, for whom the bill was named.  Civil rights leaders Dr. Dorothy HeightJulian Bond, Bruce Gordon (current president and CEO of the NAACP), Reverend Joseph Lowery (co-founder of Southern Christian Leadership Conference), Marc Morial (current president and CEO of the National Urban League), Juanita Abernathy, Jesse Jackson,  Al Sharpton, and Dr. Benjamin and Frances Hooks also attended.

But by 4:54 that afternoon, the usual power plays resumed.  Time running out before the House recess and the Rules Committee reported Doc Hastings (R-WA)  H.RES. 958 by voice vote which would scuttle clause 6(a) of rule XIII requiring a two-thirds vote to consider a rule on the same day it is reported from committee.  The measures to be considered: were:

  • the conference report on H.R. 2830, to amend the Employee Retirement Income Security Act of 1974 and the Internal Revenue Code of 1986, changing pension funding rules (The House had refused to accept Senator Frist's amendment in the nature of a substitute);
  • an unnumbered bill repealing the sunset provisions of the repeal of the estate tax and increasing the unified credit to exclude $5 million dollars; and
  • the rather vaguely worded description:  "A bill to provide economic security for all Americans, and for other purposes.

The committee had already issued Bishop (R-UT) a similar rule, H.RES.951, at 11:12  the previous night, to permit consideration of the first two measures on July 27.  

MacArthur "genius award" fellow Robert Greenstein, founding Executive Director of Austin's Center on Budget and Policy Priorities, released his analysis, House leadership invokes 'martial law' forcing members to vote on key bills without full knowledge of what they are voiting on: move reporesent erosion of the democratic process.

The report is well worth reading, providing not only an explanation of the process, but the effects of the contents of the bills.  With the wording of the measures unavailable, he speculated that they:

could combine a controversial health insurance proposal with an increase in the minimum wage (there also are reports that the estate tax, minimum wage, and expiring tax provisions may be combined into a single bill. 

He argued against the use of “martial law:”:

Waiting until the last minute to reveal what is in these bills, and then “spinning” or potentially mischaracterizing changes in the bills without Members of the House or the public having an opportunity to obtain a more objective review of what the legislation does, is unfair to Members of the House.  It also is unfair to the millions of Americans whose lives could be affected by this legislation.  It represents a further step in reducing the degree of transparency and democracy in how this country is governed and how decisions are made.  At a time when our leaders preach the goal of promoting democracy abroad, they should not be reducing it at home.

*

Hastert’s partisanship departs from his promises made in his January 6, 1999 speech, upon taking over his position as House speaker from Newt Gingrich:

Solutions to problems cannot be found in a pool of bitterness. They can be found in an environment in which we trust one another's word; where we generate heat and passion, but where we recognize that each member is equally important to our overall mission of improving the life of the American people. In short, I believe all of us - regardless of party - can respect one another, even as we fiercely disagree on particular issues.

He told Democrats,

I will meet you halfway - maybe more so on occasion ...These are not Democratic or Republican issues. They are American issues. We should be able to reach agreement quickly on the goals. Yes, we will argue about the means, but if we are in earnest about our responsibilities, we will find common ground and get the job done. In the process, we will build the people's faith in the United States Congress

The New York Times' Katharine Seelye's article that date, Hastert Is Sworn In as 51st Speaker and Puts Forth a Conciliatory Tone, ran on page A25. The article detailed the Democrats' hopes for the new regime.  Hastert had invited  Dick Gephardt (D-MO)  the Democratic leader to remain at the podium during his speech.  As he  the gavel to  Hastert, Gephardt said,

Let's bury the hatchet.

Henry A. Waxman (D-CA) was even warmer.

I'm encouraged because I know Dennis Hastert.  the rancor and raw partisanship and nastiness to which the House sunk in December shocked members of both parties. And I think that many on both sides of the aisle want to start reaching out to deal with the issues that voters sent us here to talk about.

*

Now, fast forward to 2004 and Hastert’s handling of the intelligence bill. Babington, in his Washington Post story, called it the   

latest step in a decade-long process of limiting Democrats' influence and running the House virtually as a one-party institution. Republicans earlier barred House Democrats from helping to draft major bills such as the 2003 Medicare revision and this year's intelligence package.

So, the 2006 invocation of “martial law” merely marks another step.  As the House leadership rushed to pass bills using this method, the public had no access to their content at Thomas, the Library of Congress legislative information service. The first news of the content became available only after adjournment, not from Thomas, but from Associated Press tax writer Mary Dalrymple, who posted her story "Voters in mind, Congress eyes money issues" at 1:34 p.m.  She provided no bill numbers, but reported that the House had voted to pass a pension measure and another to

  •  increase the minimum wage from $5.15 to $7.25 an hour, phased in over three years.
  • lower estate taxes by exempting $5 million of an individual's estate, and $10 million of a couple's, from estate taxes by 2015.
  • tax estates worth up to $25 million at capital gains rates, currently 15 percent and scheduled to rise to 20 percent.
  • Trim rates on the remainder of larger estates to 30% by 2015.

*

Now that information is available, we can look at how martial law on this measure and the pension bill, H.R. 4, proceeded.  According to the Library of Congress Thomas legislative reference service, it not until July 28, that John Boehner (R-OH) introduced H.R. 4, which was then referred to the Committee on Ways and Means and the Committee on Education and the Workforce. That day, Bill Thomas (R-CA) introduced H.R. 5970, which was referred to those committees and to the Committee on Resources and the Committee on Energy and Commerce.

Then, according to the Congressional Record, starting on page H6023, that evening at 6:30 p.m., Speaker Pro Tem Mac Thornberry (R-TX) ended a recess and took up the matter of H. Res. 958, to waive the requirement for 24 hours between the introduction of a bill and its consideration. The sponsor, Doc Hastings, spoke first:

Mr. Speaker, I urge my colleagues to support the same-day rule so that we can move forward to consideration of additional rules later today and eventually on the all important must-pass bills for the American people.

Then, James McGovern (D-MA) rose in opposition:

For weeks and weeks and weeks, this House has wasted valuable time. We have spent short workdays during short workweeks passing meaningless legislation without doing a thing to actually help the American people.

Today, the day before the August recess, this Republican leadership is bringing to the floor legislation that will actually be harmful to America ’s working families. The martial law rule before us, passed last night by the Republicans in the Rules Committee, makes three bills in order: first, the pension conference report, which will lead to benefit cuts for millions of workers; second, a tax cut bill mostly for the rich, including an estate tax cut that affects only the very wealthiest in the country; and third, this is my favorite, ‘‘a bill to provide economic security for all Americans, and for other purposes.’’

Okay. Can anybody in this House tell me what that means? Of course not. Apparently, the Republican leadership will be presenting a minimum wage bill that will be loaded down with sweetheart tax deals for the wealthy and the corporate special interests, the same special interests that call the shots in the Republican House.

So here we are voting on a rule to bring up bills that appeared literally just an hour ago which no one has read, 1,200 pages of legislation, Mr. Speaker, that the Members of this House have not had an opportunity to review, 1,200 pages.

This is what passes for the legislative process in the House these days, and it would be laughable if it were not so sad. The Republican strategy is as apparent as it is cynical. They want to clutter the minimum wage bill with so many giveaways to the wealthiest Americans and to corporations that it will never actually become law. That way, the dozens and dozens of vulnerable Republican incumbents can claim that they voted to increase the minimum wage, while the corporate special interests can claim victory for killing it.

Looking at his “majority of majority” policy,  I knew Hastert didn’t listen to Democrats; I was curious as to whether any Republicans, privileged by a one-party jihad, would have the courage to remind him of his inaugural comments and vote "no" on the special rules, thus returning the House to its purpose as representing the people.

At 7:29, on July 28, in Roll Call 418 to waive the rule requiring a two-thirds majority to waive 24 hours after introduction of a bill before its consideration, not a single Republican voted no. In fact, Neil Abercrombie (HI) broke party ranks to be the sole Democrat in favor of the motion.

At 7:38, the Rules Committee introduced H.Res. 966 to forbid amendments to H.R. 4 and H.R. 5970.  And by 9:16 p.m. that night, Ron Paul (R-TX), was the only Republican to vote no in Roll Call No. 419.

This left the House free to consider both measures, without amendments except for a single motion to recommit, on the same day they were submitted..

H.R. 4, “The Pension Protection Act of 2006” passed by a vote of 279 to 131 of at 11:34 a.m. on July 28. Discussion of the provisions starts in the Congressional Record on page H6153H.R. 5790, “The Estate Tax and Extension of Tax Relief Act of 2006 ” passed at 1 a.m. on July 29 by a vote of 230 to 180.   Discussion of that measure starts in the Congressional Record on page H. 6189.

*

I won’t write more on the pension bill in this space, which went on to pass in the Senate by a vote of 93 to 5 on August 3.  A brief analysis of its shortcomings can be found in Dalyrumple’s article and in the discussion in the Congressional Record already referenced above.

H.R. 5970 was controversial because it linked a raise in the minimum wage to cuts in the estate tax.  It also added restrictions on the states’ right to pass legislation excluding tips from the computation of the minimum wage, a fact that Dalyrumple failed to mention in her AP piece.

I wrote in this space about the estate tax in June,  As a separate measure, H.R. 8, it failed to secure enough votes to stop debate in the Senate on June 8.

The House’s failure to pass a stand-alone raise in the minimum wage can be traced to Hastert’s “Majority of the majority policy.”   According to the Congressional Record on page H 6590, In speaking against H.R. 5970, Steny Hoyer (D-MD),  said,

250 Members of this House have indicated they want to see a raise in the minimum wage, that they want to see it now, and they want to see it in a simple straightforward bill… But, unfortunately, once again, we are playing a game… attaching the minimum wage, which 48 of your Republican colleagues say they want to be for, is to design a process for failure…

H.R. 5970 adds its minimum wage increase near the end of the bill, starting on page 181,  Title  IV under the rubric of "other purposes." 

SEC. 401. MINIMUM WAGE.  
 
    Section 6(a)(1) of the Fair Labor Standards Act of 1938 (29 U.S.C.  
206(a)(1)) is amended to read as follows:  
            ``(1) except as otherwise provided in this section, not  
        less than--  
                    ``(A) $5.15 an hour beginning September 1, 1997;  
                    ``(B) $5.85 an hour, beginning on January 1, 2007;  
                    ``(C) $6.55 an hour, beginning June 1, 2008; and

Section 402, the  "Tipped Wage Fairness,” clause, amends Section 3(m) of the Fair Labor Standards Act.  Section 2 adds this new provision especially helpful to the restaurant industry, which factors in tips from customers to justify paying  their wait staff $2.13 an hour:

               ``(2) Notwithstanding any other provision of this Act, any State or  
political subdivision of a State which on or after the date of enactment of the Estate Tax and Extension of Tax Relief Act of 2006  excludes all of a tipped employee's tips from being considered as wages in determining if such tipped employee has been paid the applicable minimum wage rate, may not establish or enforce the minimum wage rate provisions of such law, ordinance, regulation, or order in such State or political subdivision thereof with respect to tipped employees  unless such law, ordinance, regulation, or order is revised or amended  to permit such employee to be paid a wage by the employee's employer in an amount not less than an amount equal to--  
            ``(A) the cash wage paid such employee which is required under such law, ordinance, regulation, or order on the date of enactment of the Estate Tax and Extension of Tax Relief Act of    2006; and  
            ``(B) an additional amount on account of tips received by such employee which amount is equal to the difference between the cash wage described in subparagraph (A) and the minimum  wage rate in effect under such law, ordinance, regulation, or order, or the minimum wage rate in effect under section 6(a), whichever is higher.''

*

The Economic Policy Center has posted statistics documenting the reduced buying power of the minimum wage, as well as links to news coverage and resources. 

  • Since September 1997, the purchasing power of the minimum wage has deteriorated by 20%. After adjusting for inflation, the value of the minimum wage is at its lowest level since 1955.
  • Wage inequality has been increasing, in part, because of the declining real value of the minimum wage. Today, the minimum wage is 31% of the average hourly wage of American workers, the lowest level since the end of World War II.

The situation of low wage workers would be even worse were it not for state action in the face of Congressional inaction.  On May 30, 2006, USA Today’s Dennis Cauchon  wrote in “States say $5.15 an hour too little,”

In all, 17 states and the District of Columbia — covering 45% of the U.S. population — have set minimums above the federal rate of $5.15. 

*

It appears that the Chamber of Commerce and the National Restaurant Association may have been behind the mischief regarding H.R. 5790.

The U.S. Chamber of Commerce has opposed increases in the minimum wage for years.  It ran a feature, "U.S. Chamber Opposes Raising Minimum Wage" in its magazine as recently as May 2006, although, interestingly, this article is one of the few  on its website available only to members .

Its page on the minimum wage, however reveals that:

The U.S. Chamber will continue to oppose an increase in the minimum wage. However, if such a proposal comes up, there may be companion legislation to help mitigate the adverse effect of a mandated wage increase on businesses, such as targeted reform of the Fair Labor Standards Act (FLSA).

Also available are the news releases the Chamber sent out.  June 18 2004 it railed against Senator Kerry's proposal to increase the minimum wage, featuring comments by Randel Johnson, (photo as a highlighted speaker at the anti-liberal  Federalist Society's 2005 National Lawyers Convention). . 

While the political appeal of this proposal is obvious, the fact remains businesses and workers will be losers under this proposal. The majority of economists agree that raising the minimum wage kills job creation.  Placing this burden on small businesses will stifle our economic growth....Small businesses cannot simply wave a magic wand to create more revenue when lawmakers pass these types of bills. It is these businesses, the backbone of our economy, which will be hurt the most by this proposal.  Some politicians may view initiatives such as these as a painless way to appeal to voters.  But in reality, there is no such thing as a free lunch.

Johnson, vice president for labor, immigration and employee benefits, joined the Chamber in 1997 and he's the go-to man on legislation and government programs regarding the minimum wage.  According to a bio I found at the publications page of the Chicago Council on Foreign Relations:

Prior to joining the chamber, he was the Republican labor coordinator for the House Committee on Education and the Workforce.

In the release, he pointed to a study by the Employment Policies Institute, "Job Loss in a Booming Economy, 2nd Edition," saying that it suggested the 1996 minimum wage increase of only 50 cents per hour destroyed approximately 645,000 entry-level jobs.

According to Sourcewatch.org:

The Employment Policies Institute is one of several front groups created by Berman & Co., a Washington, DC public affairs firm owned by Rick Berman, who lobbies for the restaurant, hotel, alcoholic beverage and tobacco industries. EPI, registered as a 501(c)(3) tax-exempt organization, has has been widely quoted in news stories regarding minimum wage issues, and although a few of those stories have correctly described it as a "think tank financed by business," most stories fail to provide any identification that would enable readers to identify the vested interests behind its pronouncements. Instead, it is usually described exactly the way it describes itself, as a "non-profit research organization dedicated to studying public policy issues surrounding employment growth" that "focuses on issues that affect entry-level employment." In reality, EPI's mission is to keep the minimum wage low so Berman's clients can continue to pay their workers as little as possible.

EPI also owns the internet domain names to MinimumWage.com and LivingWage.com, a website that attempts to portray the idea of a living wage for workers as some kind of insidious conspiracy. "Living wage activists want nothing less than a national living wage," it warns (as though there is something wrong with paying employees enough that they can afford to eat and pay rent).

Interesting that this group has the same monogram as the Economic Policy Institute.

*

The National Restaurant Association (NRA--any coincidence that it has the same initials as the National Rifle Association?) bragged on its site:

The National Restaurant Association worked aggressively against the wage hike, and fought hard to include numerous provisions in the final package to offset the cost for restaurants of the higher wage mandate. NRA-supported items in the House-passed bill include: 
 
• A two-year provision that allows restaurants to depreciate the cost of restaurant improvements and new construction over 15 years, rather than 39-1/2 years. 
 
• A tip credit for the seven states that are currently prohibited from utilizing a tip credit ( Alaska, California, Minnesota, Montana, Nevada, Oregon and Washington). 
 
• A permanent reduction in the federal estate tax, and 
 
• A two-year extension of the Work Opportunity Tax Credit.

It wasn’t until I read this summary that I realized that the tip credit part of the legislation might be  even worse than I had understood.  Rather than limiting new laws, it would have cancel the limitations already in effect in Alaska, California, Minnesota,   Montana, Nevada, Oregon and Washington.  I wonder how support of this limitation on states rights is justified in the minds of the same conservative Republicans who favor states rights in opposition supervision of the Voters Rights Act .I also wonder, if passed, whether the tipped credit portion of the bill would open the door for Congressional limits on state and local minimum wage laws that exceed the federal minimum and also on living wage laws.

*

By July 31,  the Economic Policy Institute’s Vice President & Policy Director Ross Eisenbrey posted his analysis  of the tip credit changes, “House-passed minimum wage bill cuts wages for tipped employees in seven states by as much as $5.50 per hour.” 

Mike Hall's article at the AFL-CIO's site, Workers Who Earn Tips Could Lose Thousands of Dollars Each Year in Republican Bill outlines the proposed change:

Under current federal law, employers do not have to pay the full minimum wage of $5.15 to workers who earn tips—bartenders, waiters and waitresses, hotel maids, hair dressers, parking attendants and dozens of other categories of tipped workers. Employers can pay tipped workers as little as $2.13 an hour and then claim that tips make up the difference between the $2.13 and $5.15 an hour. That’s called the trip credit.

But current law also says states may overrule the federal tip credit and require employers to pay the minimum wage, either the federal rate or a higher state minimum wage. For example, in Washington state, tipped workers earn the state minimum of $7.63 an hour plus tips. Tipped workers in Alaska, California, Minnesota, Montana, Nevada and Oregon also receive the full minimum wage with their tips.

The Republican estate tax bill takes away the power of the states to require employers to pay tipped workers the full minimum wage plus tips.

Another part of the H.R. 5970 tip credit provision prohibits states from trying to restore parity between tipped and nontipped workers. Under the bill, if states want to require employers to pay more than $2.13 an hour to tipped workers, they would have to allow a tip credit under state law. That means the state would have to freeze the wage requirement that employers have to pay at its current level, so employers don’t have to pay higher cash wages when the minimum wage is increased.

In an action alert at the AFL-CIO site, Call Your Senators NOW to Kill Estate Tax Giveaway to the Rich, Mike Hall writes that in a  letter to the Senate, AFL-CIO Legislative Director Bill Samuel wrote:

These poison pills are not only unacceptable, but also unnecessary. It would be simple to enact a $2.10 increase in the federal minimum wage without poison pills. A majority in both houses of Congress already supports a $2.10 increase without poison pills. The only thing standing between minimum wage workers and a $2.10 pay raise is the unwillingness of the Republican leadership of Congress to allow consideration of a clean $2.10 increase. Minimum wage workers should not have to wait for millionaires to get yet another million-dollar tax cut before they receive a long-overdue pay increase.

Nathan Newman a lawyer, policy analyst and longtime labor activist,  who is Polic Director for the Progressive States Network, a nonprofit that supports state legislative  campaigns for economic and social justice has posted his analysis at TPM Cafe, The GOP Minimum Wage CUT Bill

The NRA also had problems with H.R. 5970 and promised to:

continue to convey its opposition to a wage increase, and also will work to ensure that small-business "offsets" remain in any final package approved by the Senate.

*

In July 31, H.R. 5790 arrived in the Senate and, according to Thomas,  was “deemed read the first time on July 28 (Legislative Day July 26) 2006 pursuant to the order of July 28.”  After reading the measure was placed on the Senate Calendar.

August 2, Senate Majority leader Bill Frist (R-TN) put the matter, which he favors,  up for consideration and then immediately withdrew it in order to have a cloture vote to stop debate before the matter had even been considered tentatively scheduled for the next morning, as outlined in the Congressional record, starting on page S8668.  

Also on August 2, the Department of Labor wrote to Frist, indicating that it considered that the status quo should continue for seven states without a tip credit, although it acknowledged the fact that some found the language in the provision ambiguous.

August 3, after consideration of the bill which can be found in the Congressional Record, starting on page S8725, the cloture motion to end debate failed on a  vote of 56 - 42.

Democrats voting for cloture including Byrd (WV), Lincoln (AR), Nelson FL) and Nelson (NE).  I have already written about the pressure brought to bear on most of those members by groups lobbying for an end to the estate tax.  Republicans joining the Democrats voting to continue debate were Lincoln Chafee (RI) and George Voinovich (OH), as well as Frist.

Following the vote, he issued a press statement on H.R. 5970, which was now being called “The Family Prosperity Act:

these issues must be addressed as a package — all or nothing.

Not bringing this package — the Family Prosperity Act — to the floor — that's tantamount to saying, 'We don't care about America 's economic security.'  And I'm deeply ashamed that we, the United States Senate, would ever dare send such a message to the American people.  

*

It seems to me this all or nothing approach mixes apples and oranges. There are critics of the estate tax abolition who would argue that its elimination has nothing to do with the economic security of most Americans,  that elimination would decrease revenues for needed programs and remove an incentive to charitable giving.  They would also argue that those still affected by the estate tax are anything by economically insecure. 

Why should an increase in the minimum wage, which if it had been indexed to inflation, would now stand at at $9.05 an hour, be tied to this cut in the estate tax and in limitations on the earnings of tipped employees.  Could it be because Frist and Hastert and their followers are willing to raise the minimum wage in order to remove the issue from a referendum by the voters in November, but only if they are able to provide rewards to their wealthy constituents?  Or even worse, that they don’t even want an increase in the minimum wage.  That the other measures were a poison pill which will still allow them to argue that they were willing to pass a minimum wage hike, but were stopped by their opposition?

Beth Wellington is a Roanoke, Virginia based poet and journalist. She is a contributing editor to the New River Free Press, a book reviewer for the Roanoke Times and a member of the Southern Appalachian Writers Cooperative (SAWC) and the Appalachian Studies Association. From 1980 to 1997, she was the founding Executive Director of New River Community Sentencing, Inc. in Christiansburg, Virginia and its predecessor, New River Community Action's Community Sentencing Program. She contributes to both SourceWatch.org and Wikipedia.org. Beth's blog on culture and politics is The Writing Corner.

Commentary on the Legislative Process

By Beth Wellington

Published August 15, 2006

In Return of the Jedi, the 1983 installment of his Star Wars series, director George Lukas introduces Jabba the Hutt, a slug with covetous eyes who ensures his protection, according to the official web site “with a screen of henchmen and hired guns.”

Back on December 4, 2004, "Gregorius alexandrinus, pictor mendacrium stultorumque" (Gregory of Alexandria--painter of liars and idiots) of Hail Dubyas posted his cartoon, "Jabba the Hastert"  in response to the House Speaker Dennis Hastert "majority of the majority policy" outlined by Washington Post staff writer Charles Babington in the November 27, 2004 story, Hastert Launches a Partisan Policy.

Gregorius shows Hastert as the slug, with a caption “And if you Dummycrats are thinking that our president’s outstretched hand of bi-partisanship means that we’d occasionally compromise with you, just remember that John Kerry is now a coffee table at the RNC, Princess Pelosi.“

Hastert had ditched intelligence legislation, which he, Bush and the majority of Congress supported, saying Congress would only pass bills which most House Republicans backed. I’d speculate that this “majority of the majority” policy led to the hours spent debating four amendments to the reauthorization of the expiring portions of the Voting Rights Act of 1965. (See my story here last month.) When Hastert needed Democrats' votes to defeat the amendments and pass the bill in an election year, rather than be embarrassed, he blinked.

Shortly after 9:30 a.m. on July 27, Bush signed the bill to great fanfare on the south lawn of the White House, surrounded by representatives of the Rosa and Raymond Parks Institute and the families of Fannie Lou Hamer and Coretta Scott King, for whom the bill was named.  Civil rights leaders Dr. Dorothy HeightJulian Bond, Bruce Gordon (current president and CEO of the NAACP), Reverend Joseph Lowery (co-founder of Southern Christian Leadership Conference), Marc Morial (current president and CEO of the National Urban League), Juanita Abernathy, Jesse Jackson,  Al Sharpton, and Dr. Benjamin and Frances Hooks also attended.

But by 4:54 that afternoon, the usual power plays resumed.  Time running out before the House recess and the Rules Committee reported Doc Hastings (R-WA)  H.RES. 958 by voice vote which would scuttle clause 6(a) of rule XIII requiring a two-thirds vote to consider a rule on the same day it is reported from committee.  The measures to be considered: were:

  • the conference report on H.R. 2830, to amend the Employee Retirement Income Security Act of 1974 and the Internal Revenue Code of 1986, changing pension funding rules (The House had refused to accept Senator Frist's amendment in the nature of a substitute);
  • an unnumbered bill repealing the sunset provisions of the repeal of the estate tax and increasing the unified credit to exclude $5 million dollars; and
  • the rather vaguely worded description:  "A bill to provide economic security for all Americans, and for other purposes.

The committee had already issued Bishop (R-UT) a similar rule, H.RES.951, at 11:12  the previous night, to permit consideration of the first two measures on July 27.  

MacArthur "genius award" fellow Robert Greenstein, founding Executive Director of Austin's Center on Budget and Policy Priorities, released his analysis, House leadership invokes 'martial law' forcing members to vote on key bills without full knowledge of what they are voiting on: move reporesent erosion of the democratic process.

The report is well worth reading, providing not only an explanation of the process, but the effects of the contents of the bills.  With the wording of the measures unavailable, he speculated that they:

could combine a controversial health insurance proposal with an increase in the minimum wage (there also are reports that the estate tax, minimum wage, and expiring tax provisions may be combined into a single bill. 

He argued against the use of “martial law:”:

Waiting until the last minute to reveal what is in these bills, and then “spinning” or potentially mischaracterizing changes in the bills without Members of the House or the public having an opportunity to obtain a more objective review of what the legislation does, is unfair to Members of the House.  It also is unfair to the millions of Americans whose lives could be affected by this legislation.  It represents a further step in reducing the degree of transparency and democracy in how this country is governed and how decisions are made.  At a time when our leaders preach the goal of promoting democracy abroad, they should not be reducing it at home.

*

Hastert’s partisanship departs from his promises made in his January 6, 1999 speech, upon taking over his position as House speaker from Newt Gingrich:

Solutions to problems cannot be found in a pool of bitterness. They can be found in an environment in which we trust one another's word; where we generate heat and passion, but where we recognize that each member is equally important to our overall mission of improving the life of the American people. In short, I believe all of us - regardless of party - can respect one another, even as we fiercely disagree on particular issues.

He told Democrats,

I will meet you halfway - maybe more so on occasion ...These are not Democratic or Republican issues. They are American issues. We should be able to reach agreement quickly on the goals. Yes, we will argue about the means, but if we are in earnest about our responsibilities, we will find common ground and get the job done. In the process, we will build the people's faith in the United States Congress

The New York Times' Katharine Seelye's article that date, Hastert Is Sworn In as 51st Speaker and Puts Forth a Conciliatory Tone, ran on page A25. The article detailed the Democrats' hopes for the new regime.  Hastert had invited  Dick Gephardt (D-MO)  the Democratic leader to remain at the podium during his speech.  As he  the gavel to  Hastert, Gephardt said,

Let's bury the hatchet.

Henry A. Waxman (D-CA) was even warmer.

I'm encouraged because I know Dennis Hastert.  the rancor and raw partisanship and nastiness to which the House sunk in December shocked members of both parties. And I think that many on both sides of the aisle want to start reaching out to deal with the issues that voters sent us here to talk about.

*

Now, fast forward to 2004 and Hastert’s handling of the intelligence bill. Babington, in his Washington Post story, called it the   

latest step in a decade-long process of limiting Democrats' influence and running the House virtually as a one-party institution. Republicans earlier barred House Democrats from helping to draft major bills such as the 2003 Medicare revision and this year's intelligence package.

So, the 2006 invocation of “martial law” merely marks another step.  As the House leadership rushed to pass bills using this method, the public had no access to their content at Thomas, the Library of Congress legislative information service. The first news of the content became available only after adjournment, not from Thomas, but from Associated Press tax writer Mary Dalrymple, who posted her story "Voters in mind, Congress eyes money issues" at 1:34 p.m.  She provided no bill numbers, but reported that the House had voted to pass a pension measure and another to

  •  increase the minimum wage from $5.15 to $7.25 an hour, phased in over three years.
  • lower estate taxes by exempting $5 million of an individual's estate, and $10 million of a couple's, from estate taxes by 2015.
  • tax estates worth up to $25 million at capital gains rates, currently 15 percent and scheduled to rise to 20 percent.
  • Trim rates on the remainder of larger estates to 30% by 2015.

*

Now that information is available, we can look at how martial law on this measure and the pension bill, H.R. 4, proceeded.  According to the Library of Congress Thomas legislative reference service, it not until July 28, that John Boehner (R-OH) introduced H.R. 4, which was then referred to the Committee on Ways and Means and the Committee on Education and the Workforce. That day, Bill Thomas (R-CA) introduced H.R. 5970, which was referred to those committees and to the Committee on Resources and the Committee on Energy and Commerce.

Then, according to the Congressional Record, starting on page H6023, that evening at 6:30 p.m., Speaker Pro Tem Mac Thornberry (R-TX) ended a recess and took up the matter of H. Res. 958, to waive the requirement for 24 hours between the introduction of a bill and its consideration. The sponsor, Doc Hastings, spoke first:

Mr. Speaker, I urge my colleagues to support the same-day rule so that we can move forward to consideration of additional rules later today and eventually on the all important must-pass bills for the American people.

Then, James McGovern (D-MA) rose in opposition:

For weeks and weeks and weeks, this House has wasted valuable time. We have spent short workdays during short workweeks passing meaningless legislation without doing a thing to actually help the American people.

Today, the day before the August recess, this Republican leadership is bringing to the floor legislation that will actually be harmful to America ’s working families. The martial law rule before us, passed last night by the Republicans in the Rules Committee, makes three bills in order: first, the pension conference report, which will lead to benefit cuts for millions of workers; second, a tax cut bill mostly for the rich, including an estate tax cut that affects only the very wealthiest in the country; and third, this is my favorite, ‘‘a bill to provide economic security for all Americans, and for other purposes.’’

Okay. Can anybody in this House tell me what that means? Of course not. Apparently, the Republican leadership will be presenting a minimum wage bill that will be loaded down with sweetheart tax deals for the wealthy and the corporate special interests, the same special interests that call the shots in the Republican House.

So here we are voting on a rule to bring up bills that appeared literally just an hour ago which no one has read, 1,200 pages of legislation, Mr. Speaker, that the Members of this House have not had an opportunity to review, 1,200 pages.

This is what passes for the legislative process in the House these days, and it would be laughable if it were not so sad. The Republican strategy is as apparent as it is cynical. They want to clutter the minimum wage bill with so many giveaways to the wealthiest Americans and to corporations that it will never actually become law. That way, the dozens and dozens of vulnerable Republican incumbents can claim that they voted to increase the minimum wage, while the corporate special interests can claim victory for killing it.

Looking at his “majority of majority” policy,  I knew Hastert didn’t listen to Democrats; I was curious as to whether any Republicans, privileged by a one-party jihad, would have the courage to remind him of his inaugural comments and vote "no" on the special rules, thus returning the House to its purpose as representing the people.

At 7:29, on July 28, in Roll Call 418 to waive the rule requiring a two-thirds majority to waive 24 hours after introduction of a bill before its consideration, not a single Republican voted no. In fact, Neil Abercrombie (HI) broke party ranks to be the sole Democrat in favor of the motion.

At 7:38, the Rules Committee introduced H.Res. 966 to forbid amendments to H.R. 4 and H.R. 5970.  And by 9:16 p.m. that night, Ron Paul (R-TX), was the only Republican to vote no in Roll Call No. 419.

This left the House free to consider both measures, without amendments except for a single motion to recommit, on the same day they were submitted..

H.R. 4, “The Pension Protection Act of 2006” passed by a vote of 279 to 131 of at 11:34 a.m. on July 28. Discussion of the provisions starts in the Congressional Record on page H6153H.R. 5790, “The Estate Tax and Extension of Tax Relief Act of 2006 ” passed at 1 a.m. on July 29 by a vote of 230 to 180.   Discussion of that measure starts in the Congressional Record on page H. 6189.

*

I won’t write more on the pension bill in this space, which went on to pass in the Senate by a vote of 93 to 5 on August 3.  A brief analysis of its shortcomings can be found in Dalyrumple’s article and in the discussion in the Congressional Record already referenced above.

H.R. 5970 was controversial because it linked a raise in the minimum wage to cuts in the estate tax.  It also added restrictions on the states’ right to pass legislation excluding tips from the computation of the minimum wage, a fact that Dalyrumple failed to mention in her AP piece.

I wrote in this space about the estate tax in June,  As a separate measure, H.R. 8, it failed to secure enough votes to stop debate in the Senate on June 8.

The House’s failure to pass a stand-alone raise in the minimum wage can be traced to Hastert’s “Majority of the majority policy.”   According to the Congressional Record on page H 6590, In speaking against H.R. 5970, Steny Hoyer (D-MD),  said,

250 Members of this House have indicated they want to see a raise in the minimum wage, that they want to see it now, and they want to see it in a simple straightforward bill… But, unfortunately, once again, we are playing a game… attaching the minimum wage, which 48 of your Republican colleagues say they want to be for, is to design a process for failure…

H.R. 5970 adds its minimum wage increase near the end of the bill, starting on page 181,  Title  IV under the rubric of "other purposes." 

SEC. 401. MINIMUM WAGE.  
 
    Section 6(a)(1) of the Fair Labor Standards Act of 1938 (29 U.S.C.  
206(a)(1)) is amended to read as follows:  
            ``(1) except as otherwise provided in this section, not  
        less than--  
                    ``(A) $5.15 an hour beginning September 1, 1997;  
                    ``(B) $5.85 an hour, beginning on January 1, 2007;  
                    ``(C) $6.55 an hour, beginning June 1, 2008; and

Section 402, the  "Tipped Wage Fairness,” clause, amends Section 3(m) of the Fair Labor Standards Act.  Section 2 adds this new provision especially helpful to the restaurant industry, which factors in tips from customers to justify paying  their wait staff $2.13 an hour:

               ``(2) Notwithstanding any other provision of this Act, any State or  
political subdivision of a State which on or after the date of enactment of the Estate Tax and Extension of Tax Relief Act of 2006  excludes all of a tipped employee's tips from being considered as wages in determining if such tipped employee has been paid the applicable minimum wage rate, may not establish or enforce the minimum wage rate provisions of such law, ordinance, regulation, or order in such State or political subdivision thereof with respect to tipped employees  unless such law, ordinance, regulation, or order is revised or amended  to permit such employee to be paid a wage by the employee's employer in an amount not less than an amount equal to--  
            ``(A) the cash wage paid such employee which is required under such law, ordinance, regulation, or order on the date of enactment of the Estate Tax and Extension of Tax Relief Act of    2006; and  
            ``(B) an additional amount on account of tips received by such employee which amount is equal to the difference between the cash wage described in subparagraph (A) and the minimum  wage rate in effect under such law, ordinance, regulation, or order, or the minimum wage rate in effect under section 6(a), whichever is higher.''

*

The Economic Policy Center has posted statistics documenting the reduced buying power of the minimum wage, as well as links to news coverage and resources. 

  • Since September 1997, the purchasing power of the minimum wage has deteriorated by 20%. After adjusting for inflation, the value of the minimum wage is at its lowest level since 1955.
  • Wage inequality has been increasing, in part, because of the declining real value of the minimum wage. Today, the minimum wage is 31% of the average hourly wage of American workers, the lowest level since the end of World War II.

The situation of low wage workers would be even worse were it not for state action in the face of Congressional inaction.  On May 30, 2006, USA Today’s Dennis Cauchon  wrote in “States say $5.15 an hour too little,”

In all, 17 states and the District of Columbia — covering 45% of the U.S. population — have set minimums above the federal rate of $5.15. 

*

It appears that the Chamber of Commerce and the National Restaurant Association may have been behind the mischief regarding H.R. 5790.

The U.S. Chamber of Commerce has opposed increases in the minimum wage for years.  It ran a feature, "U.S. Chamber Opposes Raising Minimum Wage" in its magazine as recently as May 2006, although, interestingly, this article is one of the few  on its website available only to members .

Its page on the minimum wage, however reveals that:

The U.S. Chamber will continue to oppose an increase in the minimum wage. However, if such a proposal comes up, there may be companion legislation to help mitigate the adverse effect of a mandated wage increase on businesses, such as targeted reform of the Fair Labor Standards Act (FLSA).

Also available are the news releases the Chamber sent out.  June 18 2004 it railed against Senator Kerry's proposal to increase the minimum wage, featuring comments by Randel Johnson, (photo as a highlighted speaker at the anti-liberal  Federalist Society's 2005 National Lawyers Convention). . 

While the political appeal of this proposal is obvious, the fact remains businesses and workers will be losers under this proposal. The majority of economists agree that raising the minimum wage kills job creation.  Placing this burden on small businesses will stifle our economic growth....Small businesses cannot simply wave a magic wand to create more revenue when lawmakers pass these types of bills. It is these businesses, the backbone of our economy, which will be hurt the most by this proposal.  Some politicians may view initiatives such as these as a painless way to appeal to voters.  But in reality, there is no such thing as a free lunch.

Johnson, vice president for labor, immigration and employee benefits, joined the Chamber in 1997 and he's the go-to man on legislation and government programs regarding the minimum wage.  According to a bio I found at the publications page of the Chicago Council on Foreign Relations:

Prior to joining the chamber, he was the Republican labor coordinator for the House Committee on Education and the Workforce.

In the release, he pointed to a study by the Employment Policies Institute, "Job Loss in a Booming Economy, 2nd Edition," saying that it suggested the 1996 minimum wage increase of only 50 cents per hour destroyed approximately 645,000 entry-level jobs.

According to Sourcewatch.org:

The Employment Policies Institute is one of several front groups created by Berman & Co., a Washington, DC public affairs firm owned by Rick Berman, who lobbies for the restaurant, hotel, alcoholic beverage and tobacco industries. EPI, registered as a 501(c)(3) tax-exempt organization, has has been widely quoted in news stories regarding minimum wage issues, and although a few of those stories have correctly described it as a "think tank financed by business," most stories fail to provide any identification that would enable readers to identify the vested interests behind its pronouncements. Instead, it is usually described exactly the way it describes itself, as a "non-profit research organization dedicated to studying public policy issues surrounding employment growth" that "focuses on issues that affect entry-level employment." In reality, EPI's mission is to keep the minimum wage low so Berman's clients can continue to pay their workers as little as possible.

EPI also owns the internet domain names to MinimumWage.com and LivingWage.com, a website that attempts to portray the idea of a living wage for workers as some kind of insidious conspiracy. "Living wage activists want nothing less than a national living wage," it warns (as though there is something wrong with paying employees enough that they can afford to eat and pay rent).

Interesting that this group has the same monogram as the Economic Policy Institute.

*

The National Restaurant Association (NRA--any coincidence that it has the same initials as the National Rifle Association?) bragged on its site:

The National Restaurant Association worked aggressively against the wage hike, and fought hard to include numerous provisions in the final package to offset the cost for restaurants of the higher wage mandate. NRA-supported items in the House-passed bill include: 
 
• A two-year provision that allows restaurants to depreciate the cost of restaurant improvements and new construction over 15 years, rather than 39-1/2 years. 
 
• A tip credit for the seven states that are currently prohibited from utilizing a tip credit ( Alaska, California, Minnesota, Montana, Nevada, Oregon and Washington). 
 
• A permanent reduction in the federal estate tax, and 
 
• A two-year extension of the Work Opportunity Tax Credit.

It wasn’t until I read this summary that I realized that the tip credit part of the legislation might be  even worse than I had understood.  Rather than limiting new laws, it would have cancel the limitations already in effect in Alaska, California, Minnesota,   Montana, Nevada, Oregon and Washington.  I wonder how support of this limitation on states rights is justified in the minds of the same conservative Republicans who favor states rights in opposition supervision of the Voters Rights Act .I also wonder, if passed, whether the tipped credit portion of the bill would open the door for Congressional limits on state and local minimum wage laws that exceed the federal minimum and also on living wage laws.

*

By July 31,  the Economic Policy Institute’s Vice President & Policy Director Ross Eisenbrey posted his analysis  of the tip credit changes, “House-passed minimum wage bill cuts wages for tipped employees in seven states by as much as $5.50 per hour.” 

Mike Hall's article at the AFL-CIO's site, Workers Who Earn Tips Could Lose Thousands of Dollars Each Year in Republican Bill outlines the proposed change:

Under current federal law, employers do not have to pay the full minimum wage of $5.15 to workers who earn tips—bartenders, waiters and waitresses, hotel maids, hair dressers, parking attendants and dozens of other categories of tipped workers. Employers can pay tipped workers as little as $2.13 an hour and then claim that tips make up the difference between the $2.13 and $5.15 an hour. That’s called the trip credit.

But current law also says states may overrule the federal tip credit and require employers to pay the minimum wage, either the federal rate or a higher state minimum wage. For example, in Washington state, tipped workers earn the state minimum of $7.63 an hour plus tips. Tipped workers in Alaska, California, Minnesota, Montana, Nevada and Oregon also receive the full minimum wage with their tips.

The Republican estate tax bill takes away the power of the states to require employers to pay tipped workers the full minimum wage plus tips.

Another part of the H.R. 5970 tip credit provision prohibits states from trying to restore parity between tipped and nontipped workers. Under the bill, if states want to require employers to pay more than $2.13 an hour to tipped workers, they would have to allow a tip credit under state law. That means the state would have to freeze the wage requirement that employers have to pay at its current level, so employers don’t have to pay higher cash wages when the minimum wage is increased.

In an action alert at the AFL-CIO site, Call Your Senators NOW to Kill Estate Tax Giveaway to the Rich, Mike Hall writes that in a  letter to the Senate, AFL-CIO Legislative Director Bill Samuel wrote:

These poison pills are not only unacceptable, but also unnecessary. It would be simple to enact a $2.10 increase in the federal minimum wage without poison pills. A majority in both houses of Congress already supports a $2.10 increase without poison pills. The only thing standing between minimum wage workers and a $2.10 pay raise is the unwillingness of the Republican leadership of Congress to allow consideration of a clean $2.10 increase. Minimum wage workers should not have to wait for millionaires to get yet another million-dollar tax cut before they receive a long-overdue pay increase.

Nathan Newman a lawyer, policy analyst and longtime labor activist,  who is Polic Director for the Progressive States Network, a nonprofit that supports state legislative  campaigns for economic and social justice has posted his analysis at TPM Cafe, The GOP Minimum Wage CUT Bill

The NRA also had problems with H.R. 5970 and promised to:

continue to convey its opposition to a wage increase, and also will work to ensure that small-business "offsets" remain in any final package approved by the Senate.

*

In July 31, H.R. 5790 arrived in the Senate and, according to Thomas,  was “deemed read the first time on July 28 (Legislative Day July 26) 2006 pursuant to the order of July 28.”  After reading the measure was placed on the Senate Calendar.

August 2, Senate Majority leader Bill Frist (R-TN) put the matter, which he favors,  up for consideration and then immediately withdrew it in order to have a cloture vote to stop debate before the matter had even been considered tentatively scheduled for the next morning, as outlined in the Congressional record, starting on page S8668.  

Also on August 2, the Department of Labor wrote to Frist, indicating that it considered that the status quo should continue for seven states without a tip credit, although it acknowledged the fact that some found the language in the provision ambiguous.

August 3, after consideration of the bill which can be found in the Congressional Record, starting on page S8725, the cloture motion to end debate failed on a  vote of 56 - 42.

Democrats voting for cloture including Byrd (WV), Lincoln (AR), Nelson FL) and Nelson (NE).  I have already written about the pressure brought to bear on most of those members by groups lobbying for an end to the estate tax.  Republicans joining the Democrats voting to continue debate were Lincoln Chafee (RI) and George Voinovich (OH), as well as Frist.

Following the vote, he issued a press statement on H.R. 5970, which was now being called “The Family Prosperity Act:

these issues must be addressed as a package — all or nothing.

Not bringing this package — the Family Prosperity Act — to the floor — that's tantamount to saying, 'We don't care about America 's economic security.'  And I'm deeply ashamed that we, the United States Senate, would ever dare send such a message to the American people.  

*

It seems to me this all or nothing approach mixes apples and oranges. There are critics of the estate tax abolition who would argue that its elimination has nothing to do with the economic security of most Americans,  that elimination would decrease revenues for needed programs and remove an incentive to charitable giving.  They would also argue that those still affected by the estate tax are anything by economically insecure. 

Why should an increase in the minimum wage, which if it had been indexed to inflation, would now stand at at $9.05 an hour, be tied to this cut in the estate tax and in limitations on the earnings of tipped employees.  Could it be because Frist and Hastert and their followers are willing to raise the minimum wage in order to remove the issue from a referendum by the voters in November, but only if they are able to provide rewards to their wealthy constituents?  Or even worse, that they don’t even want an increase in the minimum wage.  That the other measures were a poison pill which will still allow them to argue that they were willing to pass a minimum wage hike, but were stopped by their opposition?