President Joe Biden’s ambitious pro-worker agenda is confronting a cruel legislative reality.  Thanks to the Senate filibuster—a parliamentary maneuver that blocks legislation indefinitely barring a 60-vote override—Democrats’ razor-thin Senate margins make it exceedingly difficult for President Biden to deliver on his pledge to pass the recently reintroduced PRO Act and other Clean Slate Project reforms.

Fortunately, there are some narrow paths around the filibuster.  Already, congressional Democrats have triggered budget reconciliation, a complicated process that disallows filibustering for certain tax and spending legislation, to pass coronavirus relief and certain progressive priorities.  While imperfect, reconciliation represents Biden’s best chance of making good on his promises—including his pledge to be “the most pro-union president you’ve ever seen.” As it happens, Senate precedent suggests that Democrats could use budget reconciliation to pass some major Clean Slate proposals.

The scope of budget reconciliation is chiefly constrained by the “Byrd Rule”. Under the rule, any senator may move to strip “extraneous” provisions from reconciliation bills absent a 60-vote override.  A provision is deemed “extraneous” under the Byrd Rule if:

  1. It does not alter government revenues or spending;
  2. Its effect on spending or revenues conflicts with the instructions of the initial budget resolution (what initiates reconciliation);
  3. It was beyond the scope of the Senate committee that inserted it;
  4. It produces changes in revenues or spending that are “merely incidental” to the provision’s non-budgetary components;
  5. It increases the deficit beyond the years that the budget is slated to cover; or
  6. It changes Social Security.

While most of the rule’s strictures are relatively straightforward, some—most notably subparagraph (D)’s “merely incidental” test—leave room for debate.  While technically the presiding officer—normally the Vice President—has final say over these questions, in reality, he or she invariably defers to the judgement of the Senate parliamentarian, a congressional employee. Parliamentarians generally render these decisions through informal discussions or, in more contested cases, quasi-adjudicatory proceedings known as “Byrd baths,” where both sides argue for or against a provision.

Since parliamentarians are bound to an especially rigid form of precedent, past rulings strongly indicate what to expect in future Byrd-Rule decisions. Based on past decisions, the following Clean Slate reforms could likely survive a Byrd-Rule challenge:

  • Making strike funds tax-deductible: In order to promote the right to strike, Clean Slate proposes making strike fund contributions tax-deductible.  This proposal easily passes the Byrd Rule; reconciliation has been used often to create and expand tax credits and deductions, most recently with the 2017 Trump tax cuts.
  • Requiring that unemployment insurance cover striking workers: Already, Democrats are talking about using reconciliation to boost unemployment benefits. They could also expand UI coverage to economic strikers, which would directly increase fiscal outlays. 
  • Beefing up federal labor law enforcement: DoL’s dearth of enforcement resources has been well-documented, particularly amidst the pandemic. Since Congress has repeatedly used reconciliation to alter departmental funding, legislators could invoke precedent to expand and extend DoL’s enforcement budget.
  • Giving tax credits to employers who grant workers paid leave to participate in union activities: To promote worker organizing, Clean Slate proposes tax credits to compensate employers who offer paid time off to workers participating in certain forms of collective action. Again, tax credits like this are generally acceptable under the Byrd Rule.
  • Making NLRB orders self-enforcing (maybe): The PRO Act proposes to speed up NLRB adjudications by granting Board orders legal effect unless a circuit court denies enforcement (currently, the Board must petition an appellate court to enforce its own decisions) . While a related precedent is lacking, this measure could potentially pass Byrd-Rule scrutiny if projected to reduce adjudicative costs.

Other, more ambitious Clean Slate reforms would probably survive a Byrd bath if tweaked or reframed:

  • Limiting NLRA preemption: Given the limited prospects for broader reform, allowing state labor-law experimentation is perhaps the most consequential Clean Slate proposal available. A relevant precedent was set during the 2017 Obamacare repeal fight, when the parliamentarian upheld one Republican proposal allowing states to impose Medicaid work requirements, which would have reduced outlays, but rejected another enabling state-level healthcare experimentation that had no fixed fiscal impact. Drawing from this precedent, Democrats could write a provision allowing states to assume some portion of the NLRB’s operating costs—directly reducing outlays—in exchange for enabling states to experiment with a list of Clean Slate reforms. Tying state experimentation to cost reduction directly would make the measure more analogous to the 2017 work-requirements provision.
  • Punitive fines for unfair labor practices: The NLRB currently lacks the power to order punitive damages, an important tool to deter employer misbehavior.  Fortunately, lawmakers have raised and lowered civil penalties through reconciliation before. Moreover, thanks to precedent set through a 2017 Artic oil drilling program, revenue-generating programs created through reconciliation can split collections between the federal government and other entities, so long as at least some funds go to Washington. Taken together, Congress could pass a fine on employers who violate the NLRA and direct the spoils to be split with grievants—creating, in essence, a punitive damages remedy.
  • Enabling co-enforcement: Clean Slate proposes shifting from a complaint-based model of labor-law enforcement to one of co-enforcement, in which DoL contracts with on-the-ground labor organizations to conduct worker outreach and investigations on its behalf.  There’s some unfavorable precedent from the 1996 welfare reform debate, when an analogous provision was stripped for having no impact on outlays or revenues. To pass the Byrd Rule, therefore, an enabling statute would likely have to make co-enforcement agreements contingent on reductions in federal spending—likely by reducing DoL’s administrative costs.
  • “American Ghent”: Drawing inspiration from the “Ghent system,” in which labor unions run unemployment insurance, Clean Slate proposes that worker organizations assume a role in administering certain government benefits. As with co-enforcement, lawmakers could realize this proposal through reconciliation by framing administrative delegation as a cost-savings measure. The provision could authorize DoL to contract out administering benefits like unemployment insurance to labor organizations, provided that doing so would reduce administrative overhead (Denmark’s experience suggests it might).
  • Incentivizing card-check, collective bargaining, and other pro-union agreements:  Many Clean Slate proposals seek to promote unionization and labor peace by expanding organizing rights and speeding up negotiations for a first contract. While these reforms as proposed would likely fail the “merely incidental” test, a substantial deduction in corporate taxes for businesses that sign CBAs or card-check agreements, or that agree to hire preferentially from union halls, would likely survive a Byrd-Rule challenge and significantly promote organizing. 

To be sure, these reforms are far less ambitious than what Clean Slate proposes.  As a final Byrd-Rule caveat, moreover, any proposals listed here that would increase the deficit—namely, the pro-labor tax credits, expanded enforcement funding, and striker access to UI—would have either to sunset after the allotted budgetary window (usually ten years) or be creatively sandwiched into other cost-saving measures.  Nevertheless, passing these proposals in any form would amount to the largest overhaul federal labor law has seen in decades. Even with the filibuster, then, Democrats could advance landmark policies to empower workers this session.  With millions of workers risking their lives amidst the pandemic, there has never been a more pressing time to do so.