The United States Senate voted 51-48 on June 26, 2007 not to invoke cloture on the Employee Free Choice Act (the "EFCA"). With the Democrats taking the White House and increasing their majorities in both the House and the Senate in the 2008 elections, passage of the EFCA will most certainly be a priority when the 111th Congress begins considering legislation in 2009, and the outcome of a cloture vote in the Senate could be quite different.

In 2007 Democrats held 51 seats in the Senate (counting the 2 Independent Senators who caucus with the Democrats) while the Republicans held 49 seats. Though Democrats fell short of their goal of capturing the filibuster-proof 60 seats in the Senate during the 2008 elections, if Democrat Al Franken holds off the legal challenges of the Republican incumbent, Norm Coleman, in Minnesota, Democrats will control 59 seats. Thus, only one Republican would have to cross party lines in order to invoke cloture and prevent the use of filibusters to block the passage of legislation.

While the June 2007 cloture vote on the EFCA divided primarily along party lines, one Democratic Senator did not vote, and one Republican Senator crossed party lines, voting to invoke cloture on the EFCA. In a statement on the Senate floor, Senator Arlen Specter of Pennsylvania explained that he voted to invoke cloture on the EFCA "so that we may consider a great many very important and complex issues", emphasizing that he expressed "no conclusion on the underlying merits in voting procedurally to consider the issue." (See the text of Senator Specter's Statement Here). If Senator Specter chooses to cross party lines again, the Democrats would have the 60 votes necessary to invoke cloture on the EFCA in 2009, and the Senate Republicans will not be able to prevent the Act from coming to a vote by filibustering.[1]

Given the likelihood of the passage of the EFCA by the 111th Congress, employers need to engage in preventative maintenance now. For steps you can take, see the article entitled, "Preventative Maintenance in the Workplace Before Passage of the EFCA" by Anna Dailey, which can be found on the Articles page of CoalLaw.com and contact your attorney to discuss other ways in which you can be proactive in your approach to the new method of union organizing that will be ushered in if the EFCA does, in fact, become law.