Confirmation will stall delayed bills

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First it was the health care bill.

Now it is the financial reform package.

And soon, authors and advocates of key pieces of legislation important to lawyers will face yet another obstacle to getting those bills to a final vote: the confirmation process for Elena Kagan, who has been nominated to be the next U.S. Supreme Court justice.

Last year, the confirmation process for Justice Sonia Sotomayor brought all other legislation business to a virtual standstill. This year should be no different — except that the host of bills on trial lawyer groups’ legislative agenda have gotten a year older with little or no progress being made.

With lawmakers currently busy wrangling with the language of a financial reform bill, there is little time to fit much else in before the Supreme Court confirmation process begins in earnest. But advocates say that if holding businesses accountable is the goal of the financial reform bill, lawmakers should give the same attention to bills dealing with measures dealing with pay discrimination, food safety and arbitration fairness.

“We hear lawmakers saying that they want increased accountability, said Ray De Lorenzi, spokesman for the American Association for Justice. “That is exactly what the [legislation] we are pushing for seek to accomplish.”

Discrimination, food safety measures languish

More than a year after the Paycheck Fairness Act, H.R. 12, passed the House, the measure — which would treat gender-based unequal pay complaints the same as claims of race, disability and age bias — remains motionless on the Senate side. That fact was lamented on May 5 (recognized as Equal Pay Day) by co-sponsor Sen. Christopher Dodd, D-Conn.

“Frankly, it’s a little embarrassing that the fight for equal pay continues in the year 2010,” said Dodd, who is retiring this year. “I’ve co-sponsored the PFA for the last seven Congresses, and although I’m retiring this year, there are plenty of Senators ready to keep the fight going. But we shouldn’t have to. It’s 2010 already, for Pete’s sake! We should get this done.”

Lawmakers supporting the Protecting Older Workers Against Discrimination Act (H.R. 3721, S. 1756), which would overturn the Supreme Court’s ruling in Gross v. FBL Financial Services and allow mixed-motive claims for disparate treatment based on age, expressed similar frustration during a recent hearing on the bill.

Senate Judiciary Committee Chairman Patrick Leahy, D-Vt., urged members of the Senate committee vetting the bill to “move without delay.”

“In these tough economic times, millions of Americans are concerned with the security of their jobs,” Leahy said.

Sen. Tom Harkin, D-Iowa, who leads the Health, Education, Labor and Pensions Committee considering the bill, said the timing of the current legislative gridlock couldn’t be worse, given the economic climate.

“Over two million workers over age 55 are unemployed, the all-time high since” records have been kept, Harkin told committee members. “And the average duration of unemployment for older jobseekers is twice as long as for other unemployed workers. Moreover, according to EEOC statistics, more than 45,000 charges of age discrimination were filed in 2008 and 2009, up from about 15,000 a decade ago.”

Food safety advocates had hoped to see action on bills such as the FDA Food Safety Modernization Act, S. 510, which would overhaul our current food safety system. After more than a year of work by a bipartisan group of lawmakers, including the late Massachusetts Sen. Edward Kennedy, the measure was set to finally be brought to the Senate floor for a full vote in April.

But lawmakers took up the financial regulation reform bill instead.

Majority Whip Dick Durbin, D-Ill., who introduced the measure, agreed financial reform needed to move, but said he has asked for a placeholder for food safety legislation on the legislative calendar.

Meanwhile, another food safety measure — the Food Safety Enhancement Act, H.R. 2749, which would give the FDA greater regulatory powers over the national food supply — also sits in the Senate HELP Committee.
Other stalled measures

A host of other bills await a spot on the crammed legislative calendar. If these matters are not taken up by the end of the year, lawmakers will have to start over next session:

The Medical Device Safety Act (H.R. 1346, S. 540) has seen little action since being introduced last year. The measure would overturn Riegel v. Medtronic and allow patients to bring suit in state court against makers of faulty medical devices.

The Arbitration Fairness Act of 2009 (H.R. 1020, S. 931) has yet to be passed. The bill, which would bar mandatory pre-dispute arbitration in most contracts, including those in the consumer and employment contexts, sits in committee in both the House and the Senate.

The Permanent Estate Tax Relief for Families, Farmers and Small Businesses Act (H.R. 4532), which would restore the now-repealed estate tax to 2009 levels with a $3.5 million exemption, has passed the House but is stalled in the Senate.

The Notice Pleading Restoration Act of 2009 (S. 1504) has seen little movement since being introduced by Sen. Arlen Specter, D-Pa., in July. The measure would restore the “notice pleading” standard and overturn Supreme Court cases requiring plaintiffs to put enough facts in a complaint to establish a “plausible” claim in order to withstand a challenge by the defense.

The Civil Rights Tax Relief Act (H.R. 3035, S. 1360) would exclude noneconomic damages obtained in civil rights and other employment cases from taxable gross income. The legislation was referred to committee in the House and Senate last year and has since seen no action.