With  Senator Ted Kennedy’s passing, the Employee Free Choice Act (“EFCA”) is yet another vote short of the 60 votes needed to end a Republican filibuster and force a final vote.  Under current Massachusetts law, Kennedy’s seat would not be filled until a special election is held, which cannot occur until mid-January.  Massachusetts Democrats are considering changing this law to allow Governor Patrick to appoint an interim senator to the fill the vacant seat in the meantime.  Whether this occurs could greatly impact a vote on EFCA if the bill is considered before the Massachusetts special election. 

EFCA slipped through August in an apparent state of legislative limbo, in part due to healthcare’s monopoly on the Senate’s attention.  The bill still appears unlikely to pass in its current form, with or without an EFCA-supporter in Kennedy’s seat; and no further compromise news has emerged.  If compromise talks have indeed moved forward, they have done so behind closed doors.  The best forecasts of these compromise efforts still involve Democrats dropping the controversial card-check provision in favor of a shortened election period.  If card check is indeed dropped, it remains to be seen whether Democrats could pass the bill without modifying its arbitration and enhanced penalty provisions. 

These open questions about the form an EFCA compromise will ultimately take are unlikely to be answered in the near future.  EFCA is off the table for the time being, according to Senator Harry Reid, who said “we have too many other things on our plate.”  The White House also will not be pushing EFCA until health care reform is finalized, according to an AFL-CIO spokesperson.  Although some Senators may try to speed up EFCA’s timeline in honor of Senator Kennedy’s interest in the bill, EFCA currently appears unlikely to be subject to a vote this term.