Senate Confirms Patricia Smith as Labor Department Solicitor

If the nomination of pro-union radical Craig Becker for the National Labor Relations Board couldn’t survive congressional scrutiny, Obama administration officials are taking heart that another nominee for a major labor policymaking post has passed muster. On Thursday, February 4, the Senate voted 60 to 37 to approve M. Patricia Smith, labor commissioner for the State of New York, as the new solicitor for the U.S. Department of Labor (DOL), the department’s chief law interpreter-enforcer and third-ranking official. The vote occurred after several months of delay and three days after a 60-32 cloture vote. Certain Republican lawmakers had expressed concerns that she had made deceptive statements back during her May 7 confirmation hearing before the Senate Committee on Health, Education, Labor and Pensions.

Union Corruption Update last year discussed at length how Smith, New York labor commissioner for the past three years, in January 2009 initiated a program called Wage Watch to deputize unions and allied nonprofit groups to monitor private-sector employer compliance with state labor law. The idea ostensibly was to provide a cost-efficient method of worksite enforcement given a shortage of New York Department of Labor inspectors. Wage Watch would hire, train and assign volunteers to identify wage and hour violations. The director of the new program, Lorelei Boylan, herself was Obama’s nominee to head DOL’s Wage and Hour Division until her withdrawal in October. Smith, with a background in Legal Services Corporation-funded programs in Connecticut and Indiana, stated at her hearing, “We are enforcing the law as creatively and aggressively as we can, but the government cannot do it alone.”

For certain senators, “creatively” and “aggressively” were code words for promoting union organizing. Bringing in unions and friendly nonprofit groups such as the Association of Community Organizations for Reform Now (ACORN), they argued, represented an ominous politicizing of impartial law enforcement, one that should not be replicated on a national scale. Giving members of highly partisan progressive-Left groups enforcement authority could give them a license to intimidate nonunion employers into accepting collective bargaining agreements in lieu of paying heavy fines. It also could help fund “corporate campaigns” designed to give bad publicity to nonunion firms.

An editorial in the New York Post explained the problem this way:

One needn’t have lived in New York very long to understand where that presently will lead: kangaroo-court proceedings against companies that refuse to buckle under activist pressure…No reasonable person objects to state efforts to fairly, fully enforce the law. But empowering groups between the state and the citizen can quickly distort the law’s purpose. After all, the organizations the Labor Department has teamed up with are hardly disinterested parties.

An ad hoc group of New York business associations likewise opined, “To give quasi-enforcement capabilities to certain, seemingly hand-selected constituencies sets a troubling precedent that could spread among the spectrum of state agencies.”

Such a precedent could become routine at the U.S. Department of Labor, noted certain members of Congress. Mike Enzi, R-Wyo., Ranking Republican on the Senate Labor Committee, went so far as to place a hold on the nomination. He accused Smith of being less than truthful about the intent of Wage Watch and about her claim that she had not considered expanding the program. Enzi spoke of her “lack of candor” and “discrepancies in testimony.” Sen. Johnny Isakson, R-Ga., used even stronger language, lambasting Smith for “blatantly and intentionally deceiving a committee of this body.”

In the end, however, Smith’s supporters prevailed. Typical among them was Labor Committee Chairman Tom Harkin, D-Iowa. “She clearly has a deep and passionate commitment to helping American workers,” he said. “Her expertise is needed now more than ever, particularly in this economy when American workers are struggling and deserve a strong advocate.” His Democratic colleagues had a struggle of their own — avoiding a GOP filibuster. Had newly-elected Massachusetts Senator Scott Brown, sworn in only hours earlier, been able to vote against cloture, opposition might still be active. As for Patricia Smith, she acknowledged some of her words may have been poorly chosen, especially on the issue of expanding Wage Watch.  At DOL, she’ll have no shortage of union advocates urging her to create, and expand upon, what she created in Albany.


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