Cross posted at EFCA Updates.

The chances of the Employee Free Choice Act of 2007 passing during the 110^th (2007-08) Congress were always slim. Things are looking quite different for 2009.

When EFCA was introduced in 2007, Democrats controlled both the House and the Senate, but the margin in the Senate was only one seat. Strong Republican opposition to the bill allowed it to be defeated by a silent filibuster, as EFCA proponents did not have the 60 votes necessary to invoke cloture and send the bill to the floor.

Additionally, it was by no means certain that the bill would have gotten 51 votes even if it had gone to a floor vote. As we noted on EFCAUpdates.com, all of the cloture votes were not necessarily reliable votes in favor of the bill. Four Democratic Senators – Sen. Blanche Lincoln (D-AR), Sen. Mark Prior (D-AR), Sen. Ken Salazar (D-CO), Sen. Ben Nelson (D-NE) -- declined to co-sponsor the Senate version of the bill. Senator Prior later announced support for the measure, but the other three have never publicly committed to vote for it. All four, and Senator Arlen Specter (R-PA) voted for cloture. It was a safe vote at the time, as everyone likely understood that the cloture vote would fail.

Of course, even if the Senate had passed the bill, President Bush had promised to veto it.

How different will things be in 2009? EFCA will certainly be re-introduced when the 111^th Congress convenes on January 3, 2009.

It seems virtually certain that EFCA 2009 will pass the House rather quickly. Senator Obama would sign the bill if he is elected President. Senator McCain would likely veto the measure if he is in the White House.

So, if Senator Obama becomes President, the success or failure of EFCA 2009 will likely depend entirely on the U.S. Senate.

It is tempting to assume that if the Democratic caucus reaches 60 seats in the Senate, EFCA 2009 will reach the Senate floor and will almost certainly find the 51 votes necessary to pass it without any amendments, and we will make that assumption here. That assumption is not necessarily true, of course. Some Democrats may not really like the bill, and Senate rules would certainly allow numerous opportunities for amendment of EFCA 2009. But there will be plenty of time to write about those complex amendment scenarios later. For now, we’ll keep an eye on the “magic 60.”

Let’s assume that all 51 Senators who voted for cloture on EFCA 2007 will do the same in 2009. Let us also assume that unlike 2007, Sen. Tim Johnson (D-SD), an EFCA co-sponsor, will be present for the cloture vote. That’s 52 of the 60 votes needed to send the bill to the Senate floor.

A lot can happen in three weeks, but the current consensus is that the Democrats could pick up as many as eight Senate seats. At least seven of those eight candidates have publicly expressed support for EFCA:

Alaska: Current Anchorage Mayor Mark P. Begich has a very slight lead over indicted incumbent Senator Ted Stevens (R-AK). Mr. Begich supports EFCA.

Colorado: Two current House members are challenging for the seat being vacated by Sen. Wayne Allard (R-CO). Rep. Mark Udall (D-CO) is expected to prevail, and he supports EFCA.

Minnesota: Comedian Al Franken is challenging first term incumbent Sen. Norm Coleman (R-MN). Mr. Franken currently holds a slight lead over Sen. Coleman. Mr. Franken supports EFCA.

New Hampshire: Former Governor Jeanne Shaheen is challenging first-term incumbent Sen. John Sununu (R-NH). Ms. Shaheen is leading in the polls, and she supports EFCA.

New Mexico: Sen. Pete Domenici (R-NM) is retiring. Rep. Tom Udall (D-NM) is expected to win that seat, and he supports EFCA.

North Carolina: State Senator Kay Hagan is challenging incumbent Sen. Elizabeth Dole (R-NC). Ms. Hagan has a narrow lead in the polls. She supports EFCA.

Oregon: Incumbent Sen. Gordon Smith (R-OR) is being challenged by state House Speaker Jeff Merkley. Mr. Merkley has a slim lead in the polls, and he supports EFCA.

Virginia: Former governor Mark Warner (D) leads former Governor Jim Gilmore (R) in a race for the seat being vacated by the retiring Sen. John Warner (R-VA). Gov. Warner apparently has not publicly stated his support for EFCA. But in a video from a labor meeting, he seems to come awfully close to doing so.

Even if Gov. Warner does not support EFCA, he will certainly be pressured to provide the 60^th vote to break a filibuster. It is hard to imagine that he will be able to resist. So those eight pick-ups would likely be enough to send EFCA to the floor. Once submitted for a simple majority vote on passage, the above seven open EFCA supporters would give the returning 47 co-sponsors more than enough votes for passage.

Again, the Senate is a fabulously complex body with rules that few fully understand, so there are a number of scenarios that could lead to compromise or even blockage of EFCA 2009. But the smart money right now – October 14, 2008 – would be on a fairly strong version of the bill becoming law in mid-2009.

We will, of course, continue to keep an eye on the hotly-contested Senate races.

[Sources for polling data: Real Clear Politics, Electoral-Vote.com, and Election Projection. ]