Beltway Buzz, May 19, 2023

Congress Works While Debt Limit Looms. As our country speeds toward defaulting on its debts on June 1, 2023, the White House and congressional leaders are still looking for an agreement to raise the debt ceiling. The Buzz often uses a presentation slide with the heading, “Congress: Always a Crisis,” and the current financial situation is a prime example of our legislators’ brinksmanship. That said, the tense negotiations haven’t sucked all the air out of the room, as the U.S. Congress has moved on some bills that could impact employers:

• Unemployment insurance. Late last week, the U.S. House of Representatives passed the Protecting Taxpayers and Victims of Unemployment Fraud Act (H.R. 1163), which is intended to crack down on unemployment insurance fraud (though the White House has a different take).
• Railway safety. The U.S. Senate Committee on Commerce, Science, and Transportation advanced the Railway Safety Act of 2023 ( 576), which increases potential fines on rail carriers, mandates at least a two-person crew for certain trains, and requires the U.S. Department of Transportation (DOT) to issue regulations (including rules for train length and weight and advanced notification to emergency response officials regarding cargo contents) to improve the safety of trains that haul hazardous materials.

Su Stuck. Though Julie Su’s nomination to be secretary of labor was advanced by the U.S. Committee on Health, Education, Labor and Pensions (HELP) on April 26, 2023, she continues to wait for a confirmation vote on the Senate floor. A combination of absences (Senator Dianne Feinstein (D-CA) only recently returned to Washington, D.C., after recovering at home from shingles) and noncommittal senators—namely, Joe Manchin (D-WV) and Kyrsten Sinema (I-AZ)—in the face of staunch Republican opposition has led to a stalemate. Recent media reports indicate that Su’s confirmation vote might not be held until after Memorial Day weekend.

Republicans aren’t easing up on the pressure, either. This week, Senate HELP Committee Ranking Member Bill Cassidy (R-LA) and Senator Ted Budd (R-NC) sent Su a letter—in her capacity as acting secretary of labor—demanding answers for public comments made by a U.S. Department of Labor (DOL) official characterizing the H-2A visa program as “the purchase of humans to perform difficult work under terrible conditions, sometimes including subhuman living conditions.” The letter criticizes Su for failing to properly enforce the program (if the allegations are true) or allowing unfair bias toward farmers who use the program (if the allegations are false). The letter continues, “This bias against the H-2A program appears to be part of a disturbing pattern during and before your tenure at DOL that demonstrates a disregard for the evenhanded enforcement of our nation’s laws.”

Paid Leave Bill Introduced. On May 17, 2023, Congresswoman Rosa DeLauro (D-CT) and Senator Kirsten Gillibrand (D-NY) reintroduced the Family and Medical Insurance Leave (FAMILY) Act, which would provide eligible workers with twelve weeks of paid leave for Family and Medical Leave Act purposes. The bill, which covers a broad range of caregiving relationships (including relationships involving siblings-in-law and stepgrandparents), would allow workers leave to address sexual or domestic violence and would provide for scaled wage replacement capped at $4,000 per month. The program would be paid for by levying a 0.2 percent tax on both employers and employees. The bill would not preempt existing state or local leave laws. While there is some bipartisan interest in paid leave on Capitol Hill (in the House, at least), Republicans and Democrats are likely to have different opinions regarding the best solution.

GAO: Noncompetes Restrict Worker Mobility. This week, the Government Accountability Office (GAO) released a report finding that noncompete agreements restrict job mobility and “have a negative effect on wages.” However, the report also found:

that by allowing workers and employers to commit to longer job stability, NCAs [noncompete agreements], in principle, may encourage employers to increase investments in human capital (e.g., through training). Such investments could, under certain circumstances, result in workers having longer tenures and higher wages in their current job[s].

The report was commissioned by a bipartisan group of senators, including Ron Wyden (D-OR), Elizabeth Warren (D-MA), Todd Young (R-IN), and Marco Rubio (R-FL). While the Federal Trade Commission is moving forward with its proposal to ban noncompetes, the Buzz will also be watching to see how congressional Republicans and Democrats use the report to promote legislation restricting the use of noncompetes.

Congress Examines AI. Artificial intelligence (AI) and machine learning took center stage on Capitol Hill this week, as three congressional subcommittees held hearings on the topic. The Senate Subcommittee on Privacy, Technology, and the Law held a hearing, which in the words of Subcommittee Chair Richard Blumenthal (D-CT), was “the first in a series of hearings intended to write the rules of AI.” Additionally, the Senate Committee on Homeland Security and Governmental Affairs held a hearing on the government’s use of AI in performing services for the public, and the House Judiciary Subcommittee on Courts, Intellectual Property, and the Internet held a hearing on the impact of AI on copyright law. The promise and perils of AI make it an obvious target for our legislators, and Senator Blumenthal couldn’t have been clearer about his intentions.

“I’m Gonna Steal the Declaration of Independence.” On May 17, 2023, Dr. Colleen Shogan was sworn in as the 11th Archivist of the United States. In this role, Shogan will serve as chief administrator of the U.S. National Archives and Records Administration (NARA). Created by the National Archives Act of 1934, which provides that “[a]ll archives or records belonging to the Government of the United States (legislative, executive, judicial, and other) shall be under the charge and superintendence of the Archivist,” NARA is responsible for safeguarding the original Declaration of Independence, Constitution, and Bill of Rights, among other important records. Shogan is the first woman to be confirmed by the Senate and hold the position permanently. (Three previous Archivists of the United States, Trudy Huskamp Peterson, Adrienne Thomas, and Debra Steidel Wall, served in acting capacities.)