New House Reconciliation Proposal Packs a Punch for Labor Rights Violations, Deflates Education, Leaves Questions on Immigration
What's next on the chalk board and US flag. Election concept

On October 28, 2021, House Democrats released text of the Build Back Better Act (BBB), an updated proposal to enact President Biden’s domestic agenda through the filibuster-proof reconciliation process. The new proposal is smaller and less ambitious than a previous $3.5 trillion draft released in September, reflecting the influence of moderates who wanted to ratchet back the plan’s spending, as well as arcane legislative procedure.

*MBS will be releasing additional deep dives on the updated Build Back Better Act for energy and natural resources, health, tax, financial services, and agriculture.*

The BBB’s education title weathered severe cuts, with proposed community college tuition and billions for K-12 school infrastructure eliminated. The bill also leaves unclear Democrats’ plans for immigration reform after repeated procedural challenges.

However, the new reconciliation proposal still retains some progressive proposals, including $100 billion for a new childcare entitlement program, as well as stiff penalties for worker safety and National Labor Relations Act violations. But will these programs be enough for progressive Democrats who hoped to deliver generation-defining social infrastructure?

Labor: New fees for labor rights violations, but PRO Act reforms mostly gone

Reflecting the labor movement’s pull with the Biden Administration and among Democrats, the updated proposal would give the National Labor Relations Board (NLRB) new power to slap labor rights violators with stiff new monetary penalties: as much as $50,000 for each NLRA violation, doubled if the company had past violations in recent years, and further allows for $100,000 fines if the violation resulted in an employee’s termination “or other serious economic harm.” The new draft would also for the first time extend those potential fines to individual officers and directors found to have directed the unlawful activity.

Elsewhere, the new draft hikes enforcement agencies’ spending: $350 million for the NLRB, (a $75 million increase over the agency’s current funding level); $707 million for the Occupational Safety and Health Administration (OSHA, a $115 million increase over current funding); and a $159 million increase to $404 million for the Department of Labor’s Wage and Hour Division.

The proposal would also multiply OSHA worker safety penalties ten-fold, increasing the maximum fine for willful or repeat violations to $700,000, up from $70,000. The minimum fine would be similarly raised from $5,000 to $50,000. The cap on serious failure-to-abate violations would be $70,000, up from $7,000.

However, the new version of the BBB drops language inspired by the Protecting the Right to Organize Act (PRO Act, H.R. 842) that would have added definitions of unlawful activity and brought monetary penalties under the NLRA, particularly for employers’ anti-union activity. The new reconciliation bill still leaves out many of the older PRO Act’s most ambitious policy changes, such as planned implementation of “card check,” overturning state-level “right to work” laws, and ending the current prohibition on secondary boycotts.

The loss of the PRO Act’s most sweeping reforms reflects the limits of Senate procedural rules, which require reconciliation bills to focus on spending and revenue. Conservative-leaning Democrats, particularly in the Senate, could have sunk the whole reconciliation proposal over objections to the older PRO Act.

Elsewhere, the BBB’s workforce titles offer funding increases for workforce training, such as $5 billion over five years for grants to public-private industry partnerships for employment training; $1 billion for registered apprenticeships; and $2 billion for dislocated worker retraining.

Immigration: Procedural blocks force flux

Procedural challenges grounded Democrats’ early hopes to use reconciliation to enact a path to citizenship for millions of immigrants, including select undocumented workers, Temporary Protected Status (TPS) holders, frontline and essential workers, and more. Similarly, these rules stalled proposed fixes for the decades-long green card backlog. The Senate’s reconciliation rules require all proposals to center on spending and revenue, and the non-partisan Senate Parliamentarian has repeatedly found that immigration changes don’t meet those rules, forcing reform advocates back to the drawing board several times. 

In the new BBB plan, Democrats promise $100 billion over ten years for a still-fuzzy immigration reform plan. The new bill text includes green card reform language previously rejected or not yet reviewed by the Senate Parliamentarian, meaning some or all could be stripped out automatically in that chamber. Democrats reportedly left the rejected and untested language as a “placeholder” while workshopping a new solution. An upcoming proposal could offer eligible undocumented immigrants who entered the country before January 2011 work permits and deportation protections but not legal permanent residency (a green card). The timeline for introduction of a new immigration plan is unclear, but it could be pivotal to winning progressives’ support for the updated BBB plan. 

While immigration reform is up in the air, other parts of the bill hope to ease immigrants’ lives, such as a provision to offer eligibility for federal student aid for college to undocumented students in the Deferred Action for Childhood Arrivals (DACA) program as well as TPS holders. 

Education and child care: K-12 and higher ed plans slashed, universal pre-K hangs on

President Biden promised from the campaign trail to enact universal pre-kindergarten. The revised BBB plan floats a $100 billion investment in pre-kindergarten for children aged zero to five starting in 2025. The voluntary program would be established in states that opt-in, with new federal funding to cover 90% of states’ initial costs. The plan would cap a family’s financial contribution at 7% of their income on a sliding scale system, and it will be free to families below poverty thresholds. The BBB also offers $18 billion over three years for free, universal, high-quality childcare at licensed programs, Head Start locations, or school districts. The federal government would cover 100% of states’ costs for the first three years, then gradually ratchet back the federal share over several years.

Elsewhere, the scaled-down BBB would offer a year-long extension of the Child Tax Credit, a $3,600 annual credit for each child aged 0-5 and $3,000 for each older child paid in monthly installments directly to families. President Biden had wanted to continue these payments for four years, not one.

In elementary and secondary (K-12) education, negotiators dropped a planned $40 billion Rebuild America’s Schools Grant Program for repairs and construction of public school facilities, among other priorities. Instead, the revised BBB offers funding increases for K-12 teacher and school administrator development. The bill would still expand free school meals to 8.7 million students for five years and provide 29 million children with $65 per month for summer meals.

Similarly, in the BBB’s higher education section, earlier ambitions spend $83 billion over five years to offer two years of free community college were dashed thanks to objections from Sen. Joe Manchin (D-WV), according to President Biden. Plans to increase the Pell Grant maximum (currently $6,495) by $1,400 were also cut to a $500 increase.

What’s next: More debate and revisions are ahead, as Democratic progressives and moderates face off over the bill’s contents. Losing just a few votes from either wing of the party will derail the whole thing, forcing a near-impossible balancing act from leadership. The timing for a future vote on the new package is unclear. For the latest, stay tuned to the MBS team.

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