Beltway Buzz – Ogletree Deakins
Summer Arrives, but Congress Eyes Fall Deadlines. This week, the U.S. Congress wrapped up an extended period in Washington, D.C., before heading out for a two-week recess for the Independence Day holiday. In the wake of the Fiscal Responsibility Act, appropriators spent much of their time this week working on the various bills that theoretically must be passed to fund the federal government beyond September 30, 2023. Funding for the federal government, as well as the military, will be addressed in the next big policy debates on Capitol Hill that will unfold over the summer and early fall. The Buzz will be watching to see where labor and employment issues—such as potential confirmation votes for nominees such as Julie Su (nominated to be U.S. secretary of labor)—will fit in Congress’s busy schedule.
Nominations: Federal Judicial Update. On June 21, 2023, the U.S. Senate confirmed Natasha C. Merle to serve as a district judge of the U.S. District Court for the Eastern District of New York. The confirmation marks the 100th district judge confirmed by the Senate during the Biden presidency. As of this week, the Senate had confirmed 136 federal judges (pursuant to Article III of the U.S. Constitution), including Ketanji Brown Jackson, who in April 2022 was confirmed as an associate justice of the Supreme Court of the United States, 35 judges to the U.S. courts of appeals, and 100 judges for the U.S. district courts. In comparison, at the same time during the Trump presidency, the Senate had confirmed two associate Supreme Court justices (Neil Gorsuch and Brett Kavanaugh), 41 judges to the U.S. courts of appeals, and 80 district court judges.
POTUS Renominates EEOC Chair. President Biden has renominated U.S. Equal Employment Opportunity Commission (EEOC) chair, Charlotte Burrows, to serve a third term. Burrows began serving on the EEOC in 2015 and was renominated for a second term that ends on July 1, 2023. However, as long as her nomination is pending, Burrows may continue to serve until the Senate adjourns sine die (likely at the end of the calendar year). Also pending in the Senate is Kalpana Kotagal’s nomination to serve as a commissioner of the EEOC and Karla Gilbride’s nomination to serve as EEOC general counsel.
PWFA on the Way. Signed into law on December 29, 2022, the Pregnant Workers Fairness Act (PWFA) goes into effect next week—on June 27, 2023. The PWFA requires the EEOC to promulgate implementing regulations by December 29, 2023, but the Commission hasn’t even issued a regulatory proposal yet. The absence of a notice of proposed rulemaking prompted Senator Bill Cassidy (R-LA)—the U.S. Senate Committee on Health, Education, Labor and Pensions’ (HELP) ranking member and the lead Republican co-sponsor of the PWFA—to criticize the Commission two weeks ago. The Commission has released a basic guidance document on the law.
AI Developments. It was another busy week on the artificial intelligence policy debate front. Here is the latest:
- Senator Schumer calls for comprehensive framework. During a speech at a Washington, D.C., think tank this week, Senate Majority Leader Chuck Schumer (D-NY) unveiled his road map for developing comprehensive artificial (AI) legislation. Schumer called the plan the “SAFE Innovation Framework for AI Policy.” Schumer explained that while innovation must be our “north star,” it must be informed by “Security, Accountability, protecting our Foundations, and, lastly, Explainability.” Interestingly, Schumer called for a new legislative process because “[t]he traditional approach of Committee hearings play[s] an essential role but won’t, on [its] own, suffice.” He promised that later this year he would convene a series of “AI insight forums” with industry experts to help develop the process and policy.
- Legislators seek bipartisan AI commission. This week, a bipartisan group of legislators introduced the National AI Commission Act. The bill would create a national AI commission—composed of ten legislators from each party—to study and recommend “any governmental structures that may be needed to oversee and regulate artificial intelligence systems, including the feasibility of an oversight structure that can oversee powerful artificial intelligence systems with a general purpose through a careful, evidence-based approach.”
Senate Committee Advances Labor and Employment Bills. This week, the Senate HELP Committee advanced, on 11–10 party-line votes, three labor and employment bills.
- The Paycheck Fairness Act (S. 728) would
- rewrite employers’ affirmative defenses to make it harder to demonstrate that nondiscriminatory factors account for pay differentials;
- allow plaintiffs to recover compensatory and unlimited punitive damages;
- make it easier for plaintiffs to bring and maintain class actions;
- require employers to submit employee compensation data to the EEOC and Office of Federal Contract Compliance Programs (OFCCP); and
- prohibit employers from asking about or using job applicants’ wage histories.
- The Healthy Families Act (S. 1664) would require employers with fifteen or more employees to allow employees to accrue up to seven days of paid sick leave per year.
- The Richard L. Trumka Protecting the Right to Organize Act of 2023 (S. 567), which the Buzz has discussed extensively, would turn current federal labor law on its head to favor labor unions.
With the legislative filibuster in place, the bills are unlikely to garner the sixty votes needed to pass the Senate.