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Beltway Buzz, July 28, 2017

Author: James J. Plunkett (Washington DC)

Published Date: July 28, 2017

McCain’s Vote Shocker Gives Thumbs-Down to “Skinny” Obamacare Repeal and Replace. After an action-packed week of back-room wrangling, presidential jawboning and dramatic speechifying, and cliff-hanger votes, Congress appears to have finally snatched defeat from the jaws of victory, leaving the “beleaguered” Affordable Care Act (ACA) standing once again. In the end, it was a shocking conclusion to a roller coaster week. Whereas last Friday we reported the all-but-certain death of the Senate’s ACA repeal-and-replace effort, such effort received a life-saving blood transfusion on Tuesday in the form of a Senate vote to proceed (51 to 50, with ailing Senator McCain and Vice President Pence casting the deciding votes) to open debate on one or more versions of the pending bill. The vote to proceed represented a major achievement for President Trump and the Republican-controlled Congress, who have struggled since February to get traction on a bill. Following Tuesday’s vote, there was a tremendous push to pass something—anything—and send it to the House. Initial efforts to pass a comprehensive replace-and-repeal proposal, as well as a straight-up repeal of the ACA, both failed.

Thereafter, the focus shifted to a “skinny repeal” bill (dubbed the “Health Care Freedom Act”)which would, chiefly as an overture to the House for purposes of forcing a conference, do the following: (1) eliminate the individual and employer mandates; (2) waive certain insurance regulations; (3) repeal the medical device tax; (4) defund Planned Parenthood and shift the funding to community health centers; and (5) increase health savings account contributions. On Thursday, the Senate met late into the night to consider this skinny repeal, including numerous amendments taken up during the so-called “vote-o-rama.” That same evening, Senators Graham, McCain, and Johnson announced that they would vote “no” on the measure, absent assurances from House Speaker Ryan that the House would consent to a conference, instead of enacting the Senate-passed bill (which Graham labeled “a disaster” and a “farce”) intact. When the actual vote was taken at close to 2:00 a.m. on Friday morning, the bill was defeated 51-49, with Senators McCain, Collins, and Murkowski casting the “no” votes—thus bringing the whirlwind week to a dramatic close. As of press time, there were still calls among Republicans to try, yet again, but, at this point, whether or not ACA repeal-and-replace legislation will be signed into law this year (or ever) is highly speculative. If, as Winston Churchill once said, nothing is so exhilarating in life as being shot at and missed, the ACA and its defenders must be feeling quite chipper indeed. (Hat tip to Stephanie A. Smithey, Timothy G. Verrall, and Richard C. Libert.)

DOL Begins OT Rulemaking. On Wednesday, the U.S. Department of Labor (DOL) published its Request for Information (RFI) relating to the overtime rule. The RFI states, “Concerns expressed by various stakeholders after publication of the 2016 Final Rule that the salary level would adversely impact low-wage regions and industries have further shown that additional rulemaking is appropriate.” In soliciting input from the public on the overtime rule, the RFI poses 11 specific questions on various issues. Al Robinson has more details.

Joint-Employer Bill (Finally) Introduced. On Thursday, Congressman Bradley Byrne (R-AL) along with other House Republicans and Democrats Lou Correa (D-CA) and Henry Cuellar (D-TX) introduced the Save Local Business Act (SLBA), which would codify the “actual, direct, and immediate” joint-employer standard in both the National Labor Relations Act and Fair Labor Standards Act. Although this bill has almost no chance of being enacted into law, look for there to be a big lobbying push on this front. Business groups will be working this bill in the next few months and will use its support as a proxy for support of a joint-employer rider in government funding legislation that needs to be finalized by September 30.

NLRB on the Chopping Block. In other labor news, eight years of Obama Board decisions at the National Labor Relations Board (NLRB) apparently are enough for Senator Mike Lee (R-UT), who late last week introduced the Protecting American Jobs Act along with five of his Republican colleagues. The bill would take away any authority of the NLRB to issue case decisions and engage in rulemaking on issues beyond the agency’s own internal procedures. Under the bill, the NLRB’s sole responsibilities would be to conduct union representation elections and investigate charges of unfair labor practices (ULP). Should an NLRB investigation find merit in the ULP charges, only federal district courts would be authorized to issue subsequent case decisions. As Senator Lee commented: “For far too long the NLRB has acted as judge, jury, and executioner, for labor disputes in this country.” An interesting idea, you might think, but it will never get the 60 votes in the Senate to overcome a filibuster. Furthermore, it likely serves as a distraction from more serious and immediate issues, such as the joint-employer issue discussed above. 

More H-1B Petitions on Fast Track. U.S. Citizenship and Immigration Services (USCIS) announced on Monday that it would immediately restart premium processing of certain cap-exempt H-1B visa petitions. Colleges and universities, nonprofit organizations that are affiliated with a college or university, and nonprofit research organizations are now eligible for fast track processing. Monday’s announcement follows on last month’s resumption of premium processing of H-1B petitions filed for medical doctors and interested government agency waivers. As for all other H-1B petitions, USCIS promises to “make additional announcements with specific details related to when we will begin accepting premium processing for those petitions.” Steven Williams has more

O Visas in the Spotlight. Senate Judiciary Chairman and H-1B skeptic, Charles Grassley (R-IA), is concerned that recent signals from the administration of its intentions to review the H-1B visa program might lead to an increase in fraudulent O visa petitions. O visas are intended for foreign workers with “extraordinary ability in the sciences, arts, education, business, or athletics” and are not intended to serve as an H-1B back-up or catch-all. Grassley has put the Department of Homeland Security on notice of what he believes to be this potential fraud. It is too early to tell whether this letter will lead to increased scrutiny of O visa petitions, but it is indicative of the vigilance of some members of Congress and the oversight of highly-skilled visa categories.

That’s Just How They (Lobster) Roll. Mark your calendars. Noting that “lobster is an excellent, versatile source of lean protein that is low in saturated fat and high in vitamin B12,” a group of senators from New England have introduced a resolution that would designate September 25, 2017, as National Lobster Day. So it boils down to this: if other senators can put aside their shellfishness and claw back some of the bipartisan integrity that the “world’s greatest deliberative body” used to have, the resolution may very well pass.

James J. Plunkett  (Washington DC)

James J. Plunkett
Jim Plunkett is a Senior Government Relations Counsel in the Washington, D.C. office of Ogletree Deakins. Jim was previously the Director for Labor Law Policy at the U.S. Chamber of Commerce where he focused on legislation, regulations, and policy decisions that impact the workplace. This included activity concerning the National Labor Relations Board, the Department of Labor, the Equal Employment Opportunity Commission, as well as international labor issues. Prior to joining the Chamber, Jim...

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