A last-minute attempt by Senate Majority Leader Chuck Schumer (D-NY) to keep the federal agency that oversees U.S. labor law under Democratic control into President-elect Donald Trump’s term is coming down to the wire.
The Senate will vote Wednesday to advance President Joe Biden’s nomination of National Labor Relations Board Chairwoman Lauren McFerran to another five-year term on the independent body.
It’s a move that, if successful, would secure a Democratic majority until at least 2026 on the five-person panel tasked with protecting organized union labor.
But Democrats, with less than two working weeks left in the majority and McFerran’s post expiring next Monday, are flying blind into the vote.
Majority Whip Dick Durbin (D-IL) told the Washington Examiner he was unsure if the caucus would vote in unison for McFerran, a Democrat, because he did not whip the vote.
Sen. Joe Manchin (I-WV), who caucuses with Democrats, voted against Democrat Gwynne Wilcox for a second five-year term last year. But in the same vote, Sens. Lisa Murkowski (R-AK) and Dan Sullivan (R-AK) voted in favor, allowing Wilcox to be reconfirmed.
The NLRB and other small-member government agencies requiring Senate confirmation, such as the Federal Election Commission, Federal Energy Regulatory Commission, Federal Communications Commission, and Federal Trade Commission, can create strange coalition bedfellows who buck their parties.
Manchin was undecided Tuesday on McFerran, as was Murkowski.
“I’ve been so engrossed in permitting [reform], no one’s even brought that to my attention,” Manchin told the Washington Examiner of McFerran.
Sen. Elizabeth Warren (D-MA), a staunch pro-labor advocate, was certain that McFerran would be reconfirmed without any Democratic defectors.
“We have the votes,” she said.
The NLRB’s makeup is three Democrats, one Republican, and one absent Republican seat. The agency may not have more than a 3-2 partisan majority for either party. Each seat’s term runs five years, regardless of when members are seated.
Reconfirming McFerran, who has served on the NLRB for the past decade, would cement a Democratic majority until at least Aug. 27, 2026, when Trump could replace Democrat David Prouty with a Republican. But if McFerran is shot down, the NLRB could tip into GOP control as soon as Trump takes office and the incoming Republican Senate could confirm his Republican nominees.
Conservatives oppose McFerran over a range of NLRB decisions made under her leadership that they say have been anti-business, restricted employer free speech, undermined secret ballot union elections, and violated the Civil Rights Act from labor law interpretations.
Senate Minority Leader Mitch McConnell (R-KY) accused a Democratic NLRB under Biden of having “worked overtime to pollute employer-employee relations across the country with vague new standards, distort long-standing free speech principles, and wage all-out war on small-business franchisers.”
Schumer made the case that reconfirming McFerran was “essential to protecting workers’ rights.”
“Anyone who says they stand with working Americans should care immensely about getting these NLRB nominees done,” he added.
McFerran’s reconfirmation, and Schumer’s ability to ensure a Democratic NLRB, may come down to a numbers game. Possible absences and defections could force Vice President Kamala Harris and Sen. J.D. Vance (R-OH), the vice president-elect, sprinting back to Capitol Hill.
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With full chamber attendance and Harris as the tiebreaker, Democrats could afford one defection. Sens. Kyrsten Sinema (I-AZ), Ed Markey (D-MA), and Vance were absent from a vote Tuesday morning on a judicial nominee.
The Senate will also vote Wednesday to advance Biden’s nomination of labor attorney Joshua Ditelberg to the open Republican slot. His fate was also uncertain.