Commentary Magazine


Topic: Paycheck Fairness Act

King Shows Dems’ Senate Hopes Fading

Since his election as a nominal independent in 2012, Maine Senator Angus King has been a reliable vote for the Democrats, with whom he has chosen to caucus. Considering that the Democratic Senatorial Campaign Committee actively worked for the former governor and against the nominal candidate from its own party, King’s independence seemed to be more a figure of speech than an actual political stance. But with Democratic control of the Senate very much in question this November, it turns out Majority Leader Harry Reid can’t depend on him as much as perhaps he thought he could. As The Hill reports, King is now making it clear that his vote will be very much up for grabs in January when the next Congress meets and that he will go with whichever party is in the majority.

The best indication that King is beginning to shore up his ties with the GOP Senate caucus came yesterday when he was the only member of the Senate to cross party lines on the vote on the Paycheck Fairness Act. The vote on the bill was a Democratic ploy intended to embarrass GOP senators who could be depicted as voting against gender equality. The legislation did nothing to correct inequities that existing laws don’t already account for and its substance was largely a gift to trial lawyers, a key element in Democratic fundraising. But King wouldn’t play along and voted no along with all of the GOP senators (Reid also voted no as a procedural tactic so he could resurrect the bill at some point in the future). While no one should assume that King is turning his coat before he has to, his decision to defy the Democrats on this issue was perhaps a declaration of real independence from the party with which he has associated himself since taking office. More than anything it is a sign that the proverbial rats are leaving the Democrats’ Senate ship before it sinks.

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Since his election as a nominal independent in 2012, Maine Senator Angus King has been a reliable vote for the Democrats, with whom he has chosen to caucus. Considering that the Democratic Senatorial Campaign Committee actively worked for the former governor and against the nominal candidate from its own party, King’s independence seemed to be more a figure of speech than an actual political stance. But with Democratic control of the Senate very much in question this November, it turns out Majority Leader Harry Reid can’t depend on him as much as perhaps he thought he could. As The Hill reports, King is now making it clear that his vote will be very much up for grabs in January when the next Congress meets and that he will go with whichever party is in the majority.

The best indication that King is beginning to shore up his ties with the GOP Senate caucus came yesterday when he was the only member of the Senate to cross party lines on the vote on the Paycheck Fairness Act. The vote on the bill was a Democratic ploy intended to embarrass GOP senators who could be depicted as voting against gender equality. The legislation did nothing to correct inequities that existing laws don’t already account for and its substance was largely a gift to trial lawyers, a key element in Democratic fundraising. But King wouldn’t play along and voted no along with all of the GOP senators (Reid also voted no as a procedural tactic so he could resurrect the bill at some point in the future). While no one should assume that King is turning his coat before he has to, his decision to defy the Democrats on this issue was perhaps a declaration of real independence from the party with which he has associated himself since taking office. More than anything it is a sign that the proverbial rats are leaving the Democrats’ Senate ship before it sinks.

That King is primarily in business for himself is not in question. Though he described any move he makes as being in the interests of his state, it should be taken as a given that his desk will be on the side of the Senate chamber where the majority sits regardless of who wins the midterms. That means that if the Democrats somehow hold onto their majority even by the most slender of margins, he will stay put. But if the Republicans get the six seats they need for a 51-49 majority, it will almost certainly become 52-48 in their favor provided that they pay whatever price King demands in terms of committee assignments and anything else he can think of.

But what would really be interesting is if the GOP only gains 5 seats and the midterms produce a 50-50 tie in the Senate. Up until now, the assumption has been that would leave Reid as majority leader since Vice President Biden would cast the deciding vote in favor of the Democrats when the Senate organizes in January. But such a result would also give King the opportunity to bargain with both sides. The competition for his services would be as unseemly as it would be costly. But given the cynical way he has approached the question of his party affiliation, who can doubt that the bidding will produce a wild auction with King the big winner?

If one takes into account the possibility that the close race in Louisiana where Democrat Mary Landrieu is in trouble may lead to a runoff in December if neither the incumbent nor her Republican challenger gets 50 percent of the vote, the there’s a good chance we won’t know who will be running the Senate until weeks after election day. But the fact that King is already sending signals that he will put himself up for auction is a very bad sign for the Democrats who have been counting on him.

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Paycheck Pander All About Trial Lawyers

Senate Democrats are following up on the White House “Equal Pay Day” dog and pony show yesterday with another push designed to highlight their supposed concern for the plight of female workers. The Paycheck Fairness Act that was put to a vote today had no more chance of passage than it did when it was last introduced before the 2012 election. But as it did that previous time, Democrats are hoping that it will serve to feed their fake “war on women” theme that has helped them gain an advantage with female voters while also helping to distract voters from the president’s second term blues and discontent about the implementation of ObamaCare.

Republicans who underestimate the potential impact of this strategy are making a mistake but GOP senators are right not to take the bait. As tempting as it might have been to let this legislation pass in order to undermine the Democrats’ blatantly political motivations, they were right to hold the line on the bill. Just as “Equal Pay Day” attempts to hype an issue based on misleading statistics, the Paycheck Fairness Act does nothing to address the problem of gender discrimination. Even worse, though it is easily understood as a ploy to solidify female support for President Obama’s party, it is even more of a pander toward one of the mainstays of the Democratic Party: the trial lawyers. The law is geared not so much to address inequality as to make it easy to sue businesses for discrimination without proof. While it’s an open question as to whether these maneuvers may save the Democrats in the midterm elections, allowing this bill to pass would result in a windfall for trial lawyers.

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Senate Democrats are following up on the White House “Equal Pay Day” dog and pony show yesterday with another push designed to highlight their supposed concern for the plight of female workers. The Paycheck Fairness Act that was put to a vote today had no more chance of passage than it did when it was last introduced before the 2012 election. But as it did that previous time, Democrats are hoping that it will serve to feed their fake “war on women” theme that has helped them gain an advantage with female voters while also helping to distract voters from the president’s second term blues and discontent about the implementation of ObamaCare.

Republicans who underestimate the potential impact of this strategy are making a mistake but GOP senators are right not to take the bait. As tempting as it might have been to let this legislation pass in order to undermine the Democrats’ blatantly political motivations, they were right to hold the line on the bill. Just as “Equal Pay Day” attempts to hype an issue based on misleading statistics, the Paycheck Fairness Act does nothing to address the problem of gender discrimination. Even worse, though it is easily understood as a ploy to solidify female support for President Obama’s party, it is even more of a pander toward one of the mainstays of the Democratic Party: the trial lawyers. The law is geared not so much to address inequality as to make it easy to sue businesses for discrimination without proof. While it’s an open question as to whether these maneuvers may save the Democrats in the midterm elections, allowing this bill to pass would result in a windfall for trial lawyers.

The problem for Republicans is that even though the facts are on their side when it comes to the debate about gender pay discrimination, the emotional advantage is with the president and his followers. It doesn’t matter that the president’s constant spouting of figures that show that women make only 77 percent of what men earn is completely disingenuous. The number is accurate but the differences are accounted for by factors such as job choices, education and the fact that women often choose to take years off from work to raise families and often seek greater flexibility in hours worked than men. The same factors account for the fact that women who work in the White House make less on average than the men there. Yet the White House says the same justifications for its policies don’t apply everywhere else. The reason they can get away with it is that while the numbers are misleading, most women justifiably sense that they are not always treated fairly by men. Thus, to say, as the GOP has been forced to, against laws that won’t help anyone but lawyers, puts them in the position of seeming like a party of vintage male chauvinist pigs.

Republicans rightly argue that the law of the land already forbids gender discrimination. But claiming that even more legislation won’t help things isn’t as persuasive as Obama’s emotional pleas for more fairness. Yet the problem with the Paycheck Fairness Act isn’t just that it is superfluous, it’s that it creates a legal environment in which bogus claims of discrimination can cause havoc in the business world. According to its terms, the burden of proof in such cases will be on the employers to show that they haven’t discriminated rather than on the plaintiffs to prove they have been victimized. This will not only be a gold mine for ambulance-chasing trial lawyers looking to shake down companies with settlements rather than be put through the cost and the agony of a trial but will also discourage merit pay and flexibility in hiring and hours worked — developments that will materially harm hard-working women.

This is a bridge too far for even those female Republican senators who backed past discrimination bills. They know this is simply a payoff to the trial lawyers as well as a transparent political gesture intended to put the GOP on record as opposing an equal pay bill even though such an assertion is a gross distortion of the facts. Standing up for principle is not without cost. News cycles in which talk of gender discrimination and GOP votes against such bills do feed the “war on women” propaganda being spouted on the networks and contribute the the false notion that the Democrats care more about women. Thus, Republicans must reconcile themselves to being hurt by the issue and hope that, in the long run, the truth about the issue will filter out enough to mitigate the damage and allow them to stay on message about ObamaCare and the president’s failed leadership.

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Good Riddance to the Paycheck Fairness Act

The Senate voted down the Paycheck Fairness Act yesterday, a bill that was ostensibly aimed at closing the fabled 77-cent-on-the-dollar pay gap between men and women in the workplace (and in reality aimed at helping Democrats increase the gender vote gap between them and Republicans next November). The bill failed mainly along party lines:

The Paycheck Fairness Act earned 52 votes in favor of proceeding to final consideration, short of the 60 votes necessary. Senate Republicans voted en masse against the measure, believing that it could adversely affect businesses if employees attempt to file pay-related lawsuits.

But Democratic senators spent the hours before the vote speaking about why the legislation is needed to protect women concerned with having lower pay rates than their male colleagues. No Republican lawmaker discussed the issue on the Senate floor ahead of Tuesday’s vote.

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The Senate voted down the Paycheck Fairness Act yesterday, a bill that was ostensibly aimed at closing the fabled 77-cent-on-the-dollar pay gap between men and women in the workplace (and in reality aimed at helping Democrats increase the gender vote gap between them and Republicans next November). The bill failed mainly along party lines:

The Paycheck Fairness Act earned 52 votes in favor of proceeding to final consideration, short of the 60 votes necessary. Senate Republicans voted en masse against the measure, believing that it could adversely affect businesses if employees attempt to file pay-related lawsuits.

But Democratic senators spent the hours before the vote speaking about why the legislation is needed to protect women concerned with having lower pay rates than their male colleagues. No Republican lawmaker discussed the issue on the Senate floor ahead of Tuesday’s vote.

The Paycheck Fairness Act is a seriously flawed bill, but it’s not completely without merit. A provision that would prevent employers from retaliating against workers who inquired about potential gender-based wage discrepancies sounds reasonable. And provisions that support more government research into the “gender wage gap” and supply job interview training for women aren’t necessarily bad — just ineffective and probably a waste of government money and time.

But other parts of the bill — particularly the burden of proof issue — are downright dangerous, as the Heritage Foundation explains:

Under the current Equal Pay Act, once employees have provided prima facie evidence of sex discrimination, the burden of proof shifts to the employer to show that the difference in wages results from “any factor other than sex.”

The PFA eliminates the “any factor other than sex” defense and replaces it with a “bona fide factor other than sex” defense. Employers can use this “bona fide factor” defense only if they demonstrate that “business necessity” demands it.

The legislation is fairly vague on what these “bona fide factors” might include, but lists education, training or experience. Of course, in real life there are other less tangible factors that could play a role in determining salary, including leverage during negotiations, innate talent or intelligence, competition from other employers, or a potential employee’s previous salary. The employer might find himself in legal trouble if he based the decision on one of these more subjective factors.

And that’s not the worst part — as Heritage explains further, the act would also require employers to provide training and education for female employees so that they can be on par with any male employees with higher salaries:

The PFA further provides:

Such [bona fide factor] defense shall not apply where the employee demonstrates that an alternative employment practice exists that would serve the same business purpose without producing such differential and that the employer has refused to adopt such alternative practice.

Consequently, the PFA would make virtually any pay difference between a male and female worker grounds for a lawsuit. An employee could sue if she could find an alternative pay practice that arguably serves the same business purpose. This would lead to the government and the courts dictating business practices to employers.

Consider a company with two employees in a division: a man with 10 years experience and a newly hired woman. If the company paid the man greater wages for his greater experience, the woman could insist that the employer provide her with intensive training to make up the experience gap and then pay her identical wages. And if the company refused? The woman in question could sue.

At best, the gender wage gap has been overstated. And to the extent that it does exist, it seems to have little to do with misogynistic employers trying to keep women down. If that were the case, the female Senate Democrats who have been championing the Paycheck Fairness Act wouldn’t have gender wage gaps in their own offices.

Actually, it seems like the proponents of the Paycheck Fairness Act are the only ones who are nostalgic for workplace gender discrimination. While advocating for the act, President Obama has repeatedly claimed women make 77 cents for every dollar men make. That number is highly skewed and misleading — even Ezra Klein’s liberal WonkBlog crunched its own numbers and came up with 91-cents-on-the-dollar, when controlling for life choices. Is that nine-cent gap due to actual gender discrimination? It’s nearly impossible to say for certain, because there are a number of other factors that may also need to be taken into account. But the fact that advocates for the Paycheck Fairness Act have seized onto the scariest, least accurate number seems to be an intentional attempt to demoralize and disempower vulnerable women, convincing them they have less control over their lives and careers than they actually do.

This won’t be the last we hear about the Paycheck Fairness Act. Obama will likely keep it in his reelection pitch. But its failure in the Senate yesterday was a good thing for employers and for women in the workplace.

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