The life-long hope of liberals is that if the opponents will just listen to facts and logic correct conclusions can be reached on questions of national policy. The apparent abiding hope of modern day conservatives appears to be that if the liberals would just shut up life would march on toward a replication of some golden era. Both are dead wrong. The 2012 election will be about the economy, but there’s far more to it than that.
Consider for a moment the Paycheck Fairness Act, which is supported by Rep. Shelley Berkley (D-NV1) and opposed by incumbent appointed Senator Dean Heller (R-NV). The act itself is fairly simple. [C&L] [OpenCongress] [CRS summary] Here’s the essence of the bill:
“Revises the exception to the prohibition for a wage rate differential based on any other factor other than sex. Limits such factors to bona fide factors, such as education, training, or experience.
States that the bona fide factor defense shall apply only if the employer demonstrates that such factor: (1) is not based upon or derived from a sex-based differential in compensation, (2) is job-related with respect to the position in question, and (3) is consistent with business necessity. Avers that such defense shall not apply where the employee demonstrates that: (1) an alternative employment practice exists that would serve the same business purpose without producing such differential, and (2) the employer has refused to adopt such alternative practice.
Revises the prohibition against employer retaliation for employee complaints. Prohibits retaliation for inquiring about, discussing, or disclosing the wages of the employee or another employee in response to a complaint or charge, or in furtherance of a sex discrimination investigation, proceeding, hearing, or action, or an investigation conducted by the employer.”
Simple enough really, there will be equal pay for equal work, the employer must not discriminate, and an employer cannot retaliate if an employee complains about lesser pay for the same work done by male counterparts.
What enlightened components of our society, during the 21st century, could have a problem with these requirements? The U.S. Chamber of Commerce. Note how the issue is framed:
“Several business groups, including the U.S. Chamber of Commerce and associations representing bankers, construction firms and retailers, issued a statement opposing the legislation, saying it would result in “unprecedented government control over how employees are paid at even the nation’s smallest employers.” [WaPo]
“Unprecedented government control?” This framing allows the opponents of the Paycheck Fairness Act to mouth “I love my (wife, mother, aunt, sister) and want them to be paid fairly BUT I hate guv’amint control.” And here we have the crux of the matter. For the conservative Republicans in the halls of the Congress, this is a matter of preserving the prerogatives of management even at the expense of equity in the workplace.
When we start talking about preserving prerogatives we’ve stopped discussing economic issues and started another discussion about power. Liberals and centrist Democrats focus on the equity in the workplace, no one with any credibility is attempting to argue that the average woman isn’t getting shortchanged by some 25¢ for every dollar earned by the average male employee. Conservative Republicans are arguing that this situation is really too bad, a regular hand wringer, BUT to do something about it would be to encroach on the prerogatives of management.
The Conservative thinking is that all enterprises should be as free as possible from any and all incursions into the realm of management. Businesses should not be humiliated by having the Consumer Product Safety Commission publish information about product recalls. Businesses should not be subjected to rules and regulations regarding clean air, clean water, and the disposal of toxic waste. Businesses should not be required to comply with regulations regarding their financial transactions. Those topics, in the ideal world of the Financialist conservatives, are management decisions, and not the proper subjects of polite conversation around the kitchen tables of the employees.
There are a thousand ways to tell liberals and Democrats to “shut up,” and the behavior of conservative, financialist, management oriented representatives in the 112th Congress has demonstrated several categories of these.
Opposition to the Paycheck Fairness Act, the Affordable Care Act, and the Dodd-Frank Act are predicated on the “unprecedented government interference” theme. There’s really very little new in these acts, the Paycheck Fairness Act extends and modifies legislation already on the books. The Affordable Care Act sees its beginnings in the Romney Care system in Massachusetts, itself generated by a plan for the individual mandate from the Heritage Foundation. The Dodd-Frank Act tentatively moves back to a system of regulation familiar to anyone who even vaguely remembers the New Deal.
Opposition to the expiration of the Bush Tax Cuts, which primarily benefit the ethereal upper reaches of the management class, is framed as preserving the capital of the job creators. Likewise, any suggestion that the capital gains tax should be increased brings wails beseeching the deliberative bodies not to consider any measure which might restrict the financialist endeavors.
Few examples of the orientation toward the upper echelons of income earners and the needs of average small business owners have been so clear as when Republicans oppose capital gains tax increases citing the impact on small business — that would be hedge funds and lobby shops with fewer than 500 employees. Discussion of the estate tax brings on cries that “farms, ranches, and small businesses, will be left bereft of assets — conveniently omitting the part where the new rules will benefit only the top one-quarter of one percent of all estates since those are the ones eligible under the 2009 rules. [CBPP] Republicans all but ignore additional tax cuts enacted during the Obama Administration which now have federal tax liabilities as low as they’ve been since 1955.
When the choice comes down to one between management prerogatives and workplace (or national) equity, conservative Republicans have demonstrated a definite preference for management prerogatives. If all attempts to construct an equitable or sustainable system can be caricatured as “unprecedented” government encroachment then the peril is that what has been categorized as freedom can easily devolve into license.
Should executives have the power to decide that it is more profitable to manufacture ladders with just a few rivets or bolts less than ideal for each rung? Should a manager have the power to decide that dumping toxic contaminants into the local water supply is a good thing because it is cost effective? Should a financier have the latitude to make London Whale like trades even if those endanger the very existence of his or her bank? Should a banker be free to keep from view positions which could create another disaster like the credit meltdown in 2008? Should an employer feel perfectly “free” to pay female employees 25% less than their male counterparts for the same work?
Finally, there’s a predictable argument from Republicans in D.C., and the argument offers that any modification of legislation regarding equity will “open the floodgates of litigation.” Note that Senator Heller uses this contention in his response to Rep. Berkley in the video clip below. The same arguments were made against the passage of the Lily Ledbetter Act — if the flood gates were open, it seems there was precious little water behind them. Funny thing, the business insurance sector which watches these kinds of things, reports:
“The Lilly Ledbetter Fair Pay Act of 2009 has kept lawsuits alive that otherwise would have been dismissed and revived others, but it has not generated the significant increase in litigation that some observers had feared.
Furthermore, federal courts generally have been conservative in interpreting the law, observers say.” [...]
“The sky hasn’t fallen,” said Martha J. Zackin, of counsel with law firm Mintz Levin Cohn Ferris Glovsky & Popeo P.C. in Boston.
“Some people got more excited” than the situation justified, said Thomas H. Christopher, a partner with law firm Kilpatrick Stockton L.L.P. in Atlanta. The legislation “applies only to a very limited situation and those kind of situations come up sometimes in the courts, but not as much as I think some people would think.” [BusIns.com]
In short, the old “floodgates” argument as applied to paycheck equity has produced a trickle rather than any sort of deluge. So, when Senate candidate Shelley Berkley asks incumbent Dean Heller to drop his opposition to the Paycheck Fairness Act, is she asking that he desist from continually supporting the demands of corporate management that they be allowed to progress without any encumbrance from questions of equity?
Update: The Senate Republicans blocked consideration of S. 3220 today on a 52-47 vote. 60 votes were needed to break the Republican filibuster. Senator Heller voted to sustain the filibuster and block the bill from getting an up or down vote on the Senate floor. [vote 115]