Mid-Term Senate Races Matter: Heller’s High Water

U.S. Senator Dean Heller (R-NV) released the below statement after a right-leaning federal judge in Texas nullified the Obama Administration’s Department of Labor overtime rule.

“The former Obama Administration’s expansion of the federal overtime rule would have devastated Nevada’s business owners and job creators. Since the rule was issued last year, I have been strongly concerned about its impact because it would fundamentally change how employers compensate their workers, reducing Nevadans’ work hours and benefits. I’m pleased to see that a federal judge acknowledged the regulation’s harmful consequences and ruled it invalid today,” Heller said. “Today’s news is a relief for countless Nevada businesses and employers, and I commend Nevada Attorney General Adam Laxalt for his leadership in this fight.”

Heller has worked tirelessly at undermining the Obama-era overtime rule aimed at leveling the playing field for workers. Instead, he’s worked to bolster the bottom line of his corporate benefactors. Don’t believe me?  As evidence —

  • In February 2016 he wrote to Department of Labor Secretary Tom Perez about this rule and what he claimed would be its negative impacts on corporations in the state of Nevada.
  • In March 2016, he followed up with yet another letter highlighting his concerns over the new policy change.
  • In the Senate, Heller expressed concerns with his Senate colleagues by writing to Senate Appropriations Subcommittee on Labor, Health and Human Services, Education and related Agencies Chairman Roy Blunt and Ranking Member Patty Murray.

Heller also cosponsored S. 2707, the Protecting Workplace Advancement and Opportunity Act, in the 114th Congress, legislation that would have cancelled the proposed DOL regulation to increase the salary threshold for workers eligible to receive overtime pay and require impact studies for future proposals of related rules.

Protecting Workplace Advancement and Opportunity Act

S.2707 declared that the proposed or the final rule of the Department of Labor entitled “Defining and Delimiting the Exemptions for Executive, Administrative, Professional, Outside Sales and Computer Employees” shall cease to have any force or effect. The rule revises the “white collar” exemption of executive, administrative, professional, outside sales, and computer employees from minimum wage and maximum hour, or overtime, requirements of the Fair Labor Standards Act of 1938 (FLSA).

If the proposed rule is a final rule on the date of enactment of S.2707:

  • the Dept of Labor would have been prohibited from enforcing it based on conduct occurring before that enactment date,
  • an employee would not have any right of action against an employer for the employer’s failure to comply with the final rule at any time before that enactment date,
  • any regulations that were amended by the final rule would have been restored and revived as if the final rule had never taken effect, and
  • nothing in S.2707 would have been construed to create a right of action for an employer against an employee for the recoupment of any payments made to the employee before the enactment of this bill that were in compliance with that final rule.

It also specified that the Dept of Labor could promulgate any substantially similar rule only if it had completed certain required actions; but any new rule could not contain any automatic updates to the salary threshold for purposes of exemptions to minimum wage and maximum hour requirements under the FLSA (Fair Labor Standards Act).

The requirement that definitions applicable for such exemptions be defined and delimited from time to time by Labor regulations would have been construed to:

  • require Labor to issue a new rule through notice and comment rule-making for each change in any salary threshold it has proposed (creating more expensive and elongated rule-making processes); and
  • exclude any rule that would result in changes to any salary threshold for multiple time periods, including through any automatic updating procedure.

The Dept of Labor was also prohibited from promulgating any final rule that included any revision to duties tests for exemption from minimum wage and maximum hours requirements unless specific regulatory text for the provision was proposed in the proposed rule.

For clarity, here is the background on that “Final Rule” and what it did for WORKERS:

In 2014, President Obama directed the Department of Labor to update and modernize the regulations governing the exemption of executive, administrative, and professional (“EAP”) employees from the minimum wage and overtime pay protections of the Fair Labor Standards Act (“FLSA” or “Act”). The Department published a notice of proposed rulemaking on July 6, 2015, and received more than 270,000 comments. On May 18, 2016, the Department announced that it will publish a Final Rule to update the regulations. The full text of the Final Rule will be available at the Federal Register Site.

Although the FLSA ensures minimum wage and overtime pay protections for most employees covered by the Act, some workers, including bona fide EAP employees, are exempt from those protections. Since 1940, the Department’s regulations have generally required each of three tests to be met for the FLSA’s EAP exemption to apply:

  1. the employee must be paid a predetermined and fixed salary that is not subject to reduction because of variations in the quality or quantity of work performed (“salary basis test”);
  2. the amount of salary paid must meet a minimum specified amount (“salary level test”); and
  3. the employee’s job duties must primarily involve executive, administrative, or professional duties as defined by the regulations (“duties test”).

The Department last updated these regulations in 2004, when it set the weekly salary level at $455 ($23,660 annually) and made other changes to the regulations, including collapsing the short and long duties tests into a single standard duties test and introducing a new exemption for highly compensated employees.

This Final Rule updates the salary level required for exemption to ensure that the FLSA’s intended overtime protections are fully implemented, and to simplify the identification of overtime-protected employees, thus making the EAP exemption easier for employers and workers to understand and apply. Without intervening action by their employers, it extends the right to overtime pay to an estimated 4.2 million workers who are currently exempt. It also strengthens existing overtime protections for 5.7 million additional white collar salaried workers and 3.2 million salaried blue collar workers whose entitlement to overtime pay will no longer rely on the application of the duties test.

* Key Provisions of the Final Rule *
The Final Rule focused primarily on updating the salary and compensation levels needed for EAP workers to be exempt. Specifically, the Final Rule:

  1. Set the standard salary level at the 40th percentile of earnings of full-time salaried workers in the lowest-wage Census Region, currently the South, which is $913 per week or $47,476 annually for a full-year worker;
  2. Set the total annual compensation requirement for highly compensated employees (HCE) subject to a minimal duties test to the annual equivalent of the 90th percentile of full-time salaried workers nationally, which is $134,004; and
  3. Established a mechanism for automatically updating the salary and compensation levels every three years to maintain the levels at the above percentiles and to ensure that they continue to provide useful and effective tests for exemption.

Additionally, the Final Rule amended the salary basis test to allow employers to use non-discretionary bonuses and incentive payments (including commissions) to satisfy up to 10 percent of the new standard salary level. The Final Rule made no changes to the duties tests.

Effective Date
The effective date of the Final Rule is December 1, 2016. The initial increases to the standard salary level (from $455 to $913 per week) and HCE total annual compensation requirement (from $100,000 to $134,004 per year) will be effective on that date. Future automatic updates to those thresholds will occur every three years, beginning on January 1, 2020.

Frankly, it wouldn’t surprise me to see Senator Heller espouse and promote a nationwide move such as that just made by the Missouri GOP-led legislature which lowered the minimum wage from $10/hr to $7.70/hr (or, from $20, 800/yr to $16,016/yr for Missouri citizens.

Afterall, Senator Heller has made it exceedingly clear that he represents only his corporate benefactors and is a firm believer and double-downer in a failed trickle-down philosophy.

“Congress is ready to address tax reform, and that’s why I’m encouraged by the President’s comments today about bringing tax relief to all Americans. Nevada’s hardworking families and small business owners have been waiting for a simpler, fairer tax code for years now, and Congress and the White House are poised to make that happen,” Heller said. “I was honored to host Secretary Mnuchin earlier this week in Las Vegas for a meeting with Nevada employers and the message we received from these business leaders was clear – lowering rates will help boost the economy, create jobs and increase wages. As a member of the Senate Finance Committee, I’m looking forward to working with the Administration on this issue and having a seat at the table to make sure that the final product is what’s best for Nevada.”

Mid-term elections matter and we cannot let Dean Heller get re-elected to the Senate, nor can we let AG Laxalt get elected to the Governorship of Nevada.

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Analysis: Democrats Turn Their Backs on Rural America

— by Matt L. Barron

Republican Senate and House candidates were vulnerable in rural areas. But Democrats stuck to a campaign script developed by coastal elites who think “alfalfa” is only a character in “Little Rascals.” It doesn’t have to be that way, says Democratic consultant Matt Barron.

The crushing defeat that Donald Trump delivered to the Democrats, mostly from a beat down in the boondocks, has many in my party asking if they should even bother trying to woo white working class and rural voters anymore. The thinking among coastal elites is that with coming demographic changes in the years ahead, the “coalition of the ascendant” that powered Barack Obama to the White House will turn red states blue. This mindset is deeply flawed.

Even if the 2016 presidential campaign is the last old white guy’s election, Democrats can’t expect to be a viable national party if they only hold mostly urban turf in the Northeast, California and the Ecotopia of the Pacific Northwest with an Illinois and Virginia as side dishes. The Trump wave’s greatest damage was down-ballot in Senate and House races.

Warning Signs That Flashed Were Ignored

The successful cycles of 2006, where Democrats flipped the U.S. House and 2008, where they added to their congressional wins by re-taking the Oval Office (thanks in no small measure to then-Democratic National Committee Chairman Howard Dean’s 50-state strategy), included victories in rural precincts thanks to aggressive competition for rural votes.

The House Democratic Rural Working Group and the Senate Rural Outreach arms of the Democrat’s steering and policy committees were critical pieces of messaging infrastructure designed to listen to and communicate with folks in the nation’s hinterlands. Entities like the Obama Agriculture & Rural Policy Committee (full disclosure – I was an active and charter member), not only produced a comprehensive Rural Plan but helped bring that vision to life in the 2008 presidential race with full-throated constituency outreach to small towns and rural communities.

After the disastrous 2010 midterms, things began to change. Nancy Pelosi and Harry Reid dismantled their rural policy shops, and Obama never pushed to keep a rural voter component at the DNC. At the party campaign committees, outreach desks were created for almost every minority, ethnic and interest group except geographic minorities. In the states, most state parties had no rural caucus and the handful that did were given no support in financial or human capital. This lack of basic rural electoral infrastructure started to cost the Democrats more losses in 2012 and 2014. At this summer’s Democratic convention in Philadelphia, pleas from a Pennsylvania U.S. House candidate for Democrats to embrace rural voters’ values fell on deaf ears.

Mr. Secretary Had No Clue

Hillary Clinton stood before a giant gleaming John Deere tractor in Iowa as she rolled out her Future of America’s Rural Economy plan on August 26, 2015. The white paper (pretty much a carbon copy of her 2008 rural plan) garnered some positive press and the Rural for Hillary Twitter feed picked up a few more followers. Then Madame Secretary wiped her hands and walked away from rural America. Most of the effort to woo rural voters was left to surrogates at a couple of debates and forums with Trump representatives on the other side of the stage and a handful of upstate New Yorkers who testified that Clinton paid attention to them as senator and helped push some initiatives that benefitted Empire State agriculture. The candidate herself told people to go to her website to read her position papers. For millions of rural residents without access to high-speed broadband, that is hard to do. On November 8, the Rural for Hillary Twitter page had a total of 783 followers. 783 Twitter peeps? As they say on Monday Night Football, “C’mon man!”

As the media scratched their heads at why Trump was holding rallies far off the beaten path in places like Lisbon, Maine, Atkinson, New Hampshire, Fletcher and Selma, North Carolina, Clinton never deviated from a schedule that looked like a rock band’s tour of major urban centers. Clinton never ventured out to a county fair or commodity-themed festival to meet rural voters where they are and sell her rural policy vision on the stump. A woman at Trump’s Selma, North Carolina, stop told a reporter: “Hillary would never come because we’re not important enough to her. She doesn’t care about us.” Indeed, in their battleground state thread-the-needle strategy of turning out their base voters, campaign stops like this were vetoed by the brass in Brooklyn. This violates the first rule of competing for rural votes – showing up in the sticks.

On September 27, the morning after the first presidential debate, The Daily 202’s James Hohmann of the Washington Post talked one-on-one with Agriculture Secretary Tom Vilsack. The former Iowa governor – who Hillary Clinton considered as a potential running mate – shared his take on the debate, including how the candidates were resonating with rural voters.

There are some very revealing responses from Mr. Secretary in this interview. When Hohmann says “you’re sort of the point person for rural America,” Vilsack responds “I’m the only one.” Vilsack then admits that “we (Democrats) don’t do as good a job of speaking directly to rural voters,” and “There’s no question Democrats have a hard time talking to and about rural voters.”

I submitted these two questions to 202 Live via Twitter which Hohmann asked:

How come Dem Senate candidates in AZ, NV, NH, NC, etc. are not hitting GOPers on their bad rural votes (farm bill, broadband, etc.)? Vilsack says “That’s a good question.”

How come the DNC, Democratic Senatorial Campaign Committee (DSCC), Democratic Congressional Campaign Committee (DCCC) have no rural outreach desks? How can D’s compete for rural voters when they don’t have a game plan? Vilsack says “That’s a good question and it’s one I don’t know I have a very good answer to.”

After the election, former Senator Ken Salazar (D-Colo.), who was slated to be in charge of Clinton’s White House transition team, was asked by The Hill about Clinton’s failure to reach and connect with rural voters and his response is as vapid as Vilsack’s. “Democrats have not done very well in rural America and I don’t understand why that has happened. The broader question is how to have a Democratic Party that can attract those working men and women,” Salazar said.

Clinton’s “basket of deplorables” dig at the Trumpers was her riff on Obama’s faux pas from 2008 when he was caught complaining about those “who cling to guns and religion,” and it did not go over well in flyover country. Anyone with any doubts that Democrats have become the party of the professional class should read the spot-on book by Thomas Frank, Listen Liberal – What Ever Happened to the Party of the People? Maybe Salazar and Vilsack will get a copy in their Christmas stockings this year.

Don’t Drink the DSCC’s Kool Aid – It’s Brewed by Folks Who Don’t Have Any Dirt Under Their Nails

If white working class voters and rural folks distrusted Clinton (e-mail server), thought she was a flip-flopper (being against ethanol and biofuels as a senator and then for them once she made her White House runs), and found her not relatable to them (more comfy giving six-figure speeches to Wall Street executives), it was the Senate races where Democrats’ failure to engage on issues near and dear to those in the countryside wound up costing them dearly.

Going into this cycle, there was reason for some optimism at retaking the upper chamber of Congress that was lost in the “Dempocalypse” that was the 2014 midterms. The Democrats had the map to their advantage, had recruited some solid candidates to challenge Republicans and in Senator Jon Tester, had a farmer from Big Sandy, Montana, running the Democratic Senatorial Campaign Committee. There was some hope that the abysmal records on an array of issues directly affecting rural voters by GOP incumbents would get exposed. It was not to be.

In Arizona, U.S. Representative Ann Kirkpatrick led Senator John McCain 43 percent to 39 percent among rural voters in a Rocky Mountain Poll from April 15, 2016. Kirkpatrick’s House district is majority-rural (52.4%) and she sits on the Agriculture and Transportation & Infrastructure Committees, so she should be intimately familiar with the meat and potato issues that come before these panels that hit rural Arizona. But instead of going after McCain’s horrific rural record (which Obama used to his advantage in 2008), against farmers and ranchers (opposing multiple Farm Bills over the years), his votes to kill rural broadband and rural air service and against several highway bills, she gulped the DSCC Kool Aid and made McCain’s opposition to a new Supreme Court justice a centerpiece of her campaign. Worse, in 2011, McCain led the effort in the Senate to obliterate rural postal service by doing away with Saturday mail delivery and closing thousands of rural post offices across the nation. If you don’t live near a pharmacy and you are part of the 80 percent of rural Arizonans who lack rural broadband, then you depend on the U.S. Postal Service to deliver your medications and magazines. Kirkpatrick never mentioned this issue in her campaign let alone cut a radio spot to drive it home. By autumn, her lead had slipped and McCain won handily by 12 points. Kirkpatrick won only four rural counties and among the rural counties she lost – four were in her own Arizona-1st district.

In the Show Me State, Jason Kander, one of the party’s brightest new stars, was beaten by Senator Roy Blunt who benefited from the Trump wave in outstate Mizzou’s rural counties. Kander won none of them, not even the handful that Blunt’s 2010 opponent Robin Carnahan had carried in the Lead Belt, in the southeast part of the state where there had been some historical Democratic strength from union lead miners. Kander did make his opposition to the Trans-Pacific Partnership trade deal a prominent part of his platform. But he never hit Blunt on supporting the Korea Free Trade Agreement from 2011 that saw the state’s trade deficit in the top 10 exports (everything from leather products to transportation equipment), grow 62% under the first three years Korea FTA was in effect and resulted in a drop in turkeys and soybeans, (two of the top five ag exports) falling 49% and 2% respectively. Kander hit Blunt relentlessly on his fancy Washington, D.C., house and that his family were all lobbyists but never mentioned Blunt’s opposition to biofuels and that he voted in 2012 against federal payments in-lieu of taxes for rural counties that host huge swaths of tax-exempt acres as part of the Mark Twain National Forest. Those federal bucks help pay for schools and local law enforcement where the tax base is thin because of Uncle Sam’s green footprint. Like Kirkpatrick in Arizona, Katie McGinty in Pennsylvania, and Deborah Ross in North Carolina, Kander let Blunt off the hook on dozens of votes that have specific resonance in rural communities.

The Wisconsin race between Republican Senator Ron Johnson and Russ Feingold was supposed to be a layup for the Democrats until Feingold lost the ball. Johnson, a freshman who came in on the 2010 Tea Party wave, was deeply unpopular, and Feingold supposedly had learned from his defeat six years earlier that he had to put much more effort into winning in places outside Madison and Milwaukee. Feingold got the showing-up part right – he stumped in all of the Badger State’s 72 counties. But he again messed up on his rural messaging. Not only did Johnson vote against the 2014 Farm Bill, but he opposed key amendments to that omnibus legislation affecting Wisconsin commodities like milk and cranberries. Alfalfa illustrates this point. Johnson voted against a measure by Senator Jerry Moran (R-Kan.) to require the U.S. Department of Agriculture’s Federal Crop Insurance Corporation to carry out research and development for a crop insurance program for alfalfa. This is kind of a big deal in a state that has “America’s Dairyland” on its license plates. In 2015, Wisconsin grew 1.2 million acres of alfalfa with a value of $756, 985,000. Feingold (who spent some time on the Committee on Agriculture, Nutrition and Forestry during his first Senate term) really could have made some political hay with some paid media hitting Johnson for being out of touch with his state’s signature economic sector – and possibly won more of the rural vote that should have been his.

Even in Nevada, where Catherine Cortez Masto hung on to hold outgoing Senator Harry Reid’s seat, she did it only by running up the score in Las Vegas and Clark County. Cortez Masto made a brief three-day swing through rural Nevada in mid-July showing her face in places like Ely, Elko, Pahrump and Winnemucca. But then she pretty much focused only on Las Vegas and Reno. Cortez Masto lost the rural cow counties by just under 54,000 votes – a bigger blowout than the 40,000- vote rural defeat ex-Representative Shelley Berkley suffered in her 2012 loss to Republican Senator Dean Heller, who beat her 46% to 45% statewide. Cortez Masto was so focused on parroting DSCC talking points on abortion rights and the Supreme Court vacancy that she never hit suburban Representative Joe Heck on his anti-rural and anti-libertarian record that could have appealed to rural Nevadans.

What Can the Party of Jefferson and Truman Do Going Forward?

There are a number of takeaways for Democrats to learn and act on if they have any hope of competing for the hearts and minds of rural Americans:

  • Create a rural desk at their Senate and Congressional campaign committees so that Senate and House candidates can have access to opposition research and policy data on rural issues that affect rural/exurban constituencies in their respective states, because every state in this nation contains some rural precincts. Make the DNC’s Rural Council more than an entity that only meets for two days every four years at the national convention.
  • Revive the Senate Democratic Rural Outreach shop within the Senate Democratic Steering and Outreach Committee that was closed down in 2010 and staff it with folks who know how to do messaging to the hinterlands and the boondocks. Even though he is up in the 2018 cycle, Senator Sherrod Brown of Ohio would be a natural to lead this effort. Revive the House Democratic Rural Working Group in the House to do similar work. Representative Cheri Bustos, who represents a swath of western Illinois that is 47% rural, would be a perfect fit.
  • Learn that in candidate recruitment, carpetbaggers are not good messengers in rural places. House contests in Maine-2nd and New York-19th showed that voters don’t like people like Louisville, Kentucky, native Emily Cain (whom Mainers politely refer to being “from away”) or Seattle-born and New York City transplant-to-upstate Zephyr Teachout. That shows at the ballot box. Organic-to-the-district works better when all the votes are counted.
  • Start hiring campaign managers, staff, and campaign consultants who have some direct connection to rural America and know that alfalfa is a forage crop and not the most famous and popular member of the Little Rascals comedy shorts series. Democrats need more people with some dirt under their nails advising candidates up and down the ballot that they cannot ignore stuff that animates rural people.
  • Work with the urban Democratic donor community to support and endow state-branded/rural-focused/grassroots driven super PACs to fund cost-effective voter contact messaging for rural folks such as dirt-cheap rural radio spots and print ads in rural weekly newspapers to reach rural voters where they are.

Republished with permission from Matt L. Barron, who is president of MLB Research Associate, a political consulting and rural strategy firm in Chesterfield, MA. You can follow him on Twitter —> @MrRural

New rural PAC he just started  http://www.silverstaterural.com/  Watch that space!