Could the PRO Act become law?

When the Protecting the Right to Organize Act was passed by the House of Representatives in March, it garnered votes from five Republicans. Now in the Senate, the bill’s supporters — which include construction unions and workers’ rights groups — would be lucky to get even one GOP vote. In fact, it’s unlikely the bill will even get to the Senate floor for discussion, legal and political experts say.

The PRO Act seeks to:

• Largely change the way employers and unions interact and collectively bargain.
• Redefine what the National Labor Relations Board considers an “employer” and “employee,” significantly impacting companies’ liability and responsibilities to their workers.
• Eliminate right-to-work states.

Despite its uphill battle, Senate Majority Leader Chuck Schumer, D-N.Y., is continuing to search for PRO Act support, reportedly saying he will bring the vote to the Senate floor when the bill reaches 50 co-sponsors. It currently has 45. The remaining Democrat and independent holdouts are:

• Arizona Sen. Kyrsten Sinema.
• Arizona Sen. Mark Kelly.
• West Virginia Sen. Joe Manchin.
• Virginia Sen. Mark Warner.
• Maine Sen. Angus King, an Independent who caucuses with Democrats.

Unions are lobbying hard to sway these five legislators. In late March, the Hanover, Maryland-based International Union of Painters and Allied Trades made 500,000 calls to the offices of these five senators, according to James Williams Jr., general vice president at large for IUPAT. Other unions, such as the AFL-CIO and North America’s Building Trades Unions have cheered the passage of the PRO Act in the House, and urged the Senate to focus on worker-first legislation.

Despite it long odds, the 2021 iteration of the PRO Act is in a better position than the last version that passed the House in February 2020 but died in the Senate, Williams said, giving IUPAT confidence and a renewed sense of motivation.

“We started this campaign under worse circumstances and have made significant strides since then, including passage in the House with a larger majority than the 2020 bill and with bipartisan support,” Williams said, referencing the five Republican representatives who voted for it in March as well as a pro-union White House. “We intend to capitalize on that progress and will keep organizing and keep mobilizing until the Senate votes on the bill.”

Construction outlook

Groups representing construction employers, like the Associated General Contractors of America, have fought the PRO Act in each of its iterations, and are especially vigilant now that the Senate flipped to Democratic control in January.

The AGC has set up coalitions in five states — Arizona, Alaska, Maine, Virginia and West Virginia — to oppose the bill by educating the business communities there on the PRO Act’s potential impact, said Brian Turmail, AGC vice president of public affairs and strategic initiatives.

Instead of bringing the bill to a vote, Republicans, led by Senate Minority Leader Mitch McConnell, will more than likely filibuster it — effectively delaying it until it expires, political experts say. Schumer has until Dec. 31, 2022, to bring the bill to the floor for a vote, according to Trent Cotney, CEO of Tampa, Florida-based Cotney Attorneys and Consultants.

Nevertheless, Democrats are hopeful that if they can get 50 co-sponsors, it will give Schumer the political leverage needed to bring it to the floor for messaging purposes, even while knowing that it won’t be able to surpass the filibuster, Cotney said.

Navigating the filibuster

If Republicans filibuster, the bill’s supporters would need to meet the 60-vote threshold in order to bring it to a vote.

Discarding or circumventing the filibuster would be a major challenge, Cotney said, although there are some unlikely ways it could happen. They include:

• If 67 Senators vote to abolish the use of the filibuster altogether. This is unlikely, Cotney said, due to the 50-50 deadlock of Republicans to Democrats in the Senate. Ties in the Senate are broken by the president of the Senate, Vice President Kamala Harris.
• A “nuclear option” wherein Schumer sweeps the 67-vote rule aside with only 51 votes — an option for which Schumer does not have support, Cotney says.
• The Congressional Review Act — which would be an unlikely means to repeal major congressional regulations.
• Budget reconciliation, which is a one-time budget option each fiscal year. A Senate Parliamentarian ruling last week allows Democrats to use revised budget resolutions for reconciliation, meaning they can revise the original Fiscal Year 2021 budget used to carry the $1.9 trillion American Rescue Plan to now carry the $2.25 trillion American Jobs Plan, Cotney said.

In theory, Schumer could try to add the PRO Act to a package tucked into budget resolutions, but would likely face resistance from the five non-Republicans who are not co-sponsors. Additionally, the Senate Parliamentarian could rule against adding the PRO Act, and therefore it would need to be removed from the resolution, Cotney said. The same scenario occurred with the move to increase the federal minimum wage to $15, when it was removed from the American Rescue Plan Act of 2021.

The idea of abolishing the filibuster has gained support recently, as President Joe Biden referred to the practice as “a relic of the Jim Crow era,” a sentiment Williams echoed.

“It has morphed into a shield used by politicians to hide from having to deliver on campaign promises,” Williams said.

The AGC, meanwhile, supports the legislative tactic.

“The filibuster protects minority rights and encourages collaboration,” Turmail said. “Abandoning that rule in an equally divided Senate will only exacerbate the partisan divide that makes compromise hard to achieve.”

Looking ahead

Despite the push for an end to the filibuster, the fact remains that without a historic change to Senate rules, the PRO Act will likely die in the Senate via delay, Cotney said. Nevertheless, the Biden administration has other tactics at its disposal to help promote its pro-union agenda.

Elements of the PRO Act may find their way into other pieces of legislation or agency guidance such as the revision to “employee” definitions or abolishing right-to-work laws in states, experts told Construction Dive. Biden could urge agencies, such as the Department of Labor or the National Labor Relations Board, to enact parts of the PRO Act — such as changing the definitions of “joint-employer” and “independent contractor” — through administrative means, Cotney said.

Unions aren’t just seeing increased support from the White House and Capitol Hill — public favor skews toward support for organized labor, according to a recent Gallup poll. Turmail, however, said being pro-union and anti-PRO Act is not incompatible and that surveys of public opinion do not have any bearing on the PRO Act debate.

For now, though, IUPAT and other labor unions are not looking for a backup plan, Williams said.

“Right now we’re focused on getting the PRO Act passed,” he said. “We support what’s in the bill, and certainly support those provisions becoming law, which is why we’re fighting to make sure the bill becomes law as written.”