Detroit Regional Chamber > Advocacy > Oct. 8 | This Week In Government: Legal Challenge Vowed After Whitmer Revives Prevailing Wage; House OKs Child Care Expansion Bills

Oct. 8 | This Week In Government: Legal Challenge Vowed After Whitmer Revives Prevailing Wage; House OKs Child Care Expansion Bills

October 8, 2021
Each week, the Detroit Regional Chamber’s Government Relations team, in partnership with Gongwer, will provide members with a collection of timely updates from both local and state governments. Stay in the know on the latest legislation, policy priorities, and more.

  1. Legal Challenge Vowed After Whitmer Revives Prevailing Wage
  2. House OKs Child Care Expansion Bills; Petition Submission Timeline Bill
  3. Biden Plugs Federal Aid Bills, Shrugs Off Demonstrators
  4. Whitmer Calls For Talks On Spending $5.7B From Feds
  5. Senate GOP Completes Passage Of 2 Voter ID Bills After Delay

Legal Challenge Vowed After Whitmer Revives Prevailing Wage

Gov. Gretchen Whitmer’s announcement Thursday that the Department of Technology, Management and Budget would resume requiring firms bidding on state construction contracts to offer the prevailing wage to their workers prompted denunciations from Republicans, some conservative business organizations and non-union contractors, with a lawsuit promised.

Less clear is what impact the resumption of requiring those bidding on state construction contracts to pay union-scale wages would have on workers. The governor did not directly answer when asked if DTMB, since the repeal of the prevailing wage law in 2018, had been awarding contracts to bidders for construction projects paying less than union-scale wages to their workers.

“When the Michigan Legislature changed the law, they made it into not requiring the prevailing wage. They didn’t preclude administrations from pursuing it,” she said when asked under what authority she could order DTMB to require the payment of the prevailing wage to workers given the repeal of the 1965 prevailing wage law in 2018. “The fact of the matter is this is the right policy for Michigan. When we support hard-working people and they make good money and we’ve got expertise on state jobs, it benefits every single one of us.”

The foes of the prevailing wage disputed all those points.

In 2018, the Associated Builders and Contractors of Michigan led an initiative petition, which the Legislature eventually enacted, that repealed the prevailing wage law. An association of non-union construction firms, ABC had contended for years that prevailing wage interfered with the market, setting wages artificially high.

For many years, prevailing wage had bipartisan support. Eventually, however, as more free market conservatives replaced union-friendly conservatives in the Legislature, it was left with only Democratic backing, save for former Governor Rick Snyder. That led to the initiative petition that Mr. Snyder was powerless to stop. Backers of the wage have contended it assures good wages for skilled workers and assures the type of training needed for workers to perform quality work, the latter point scoffed at by ABC, which says it also performs training with quality products from its workers.

An avalanche of Republican criticism followed Ms. Whitmer’s announcement at United Association Local 333’s training facility northwest of Lansing. The union serves plumbers, pipefitters, welders and HVAC service technicians in mid-Michigan.

Jimmy Greene, president of ABC of Michigan, said the governor’s action is illegal, disputing her legal analysis.

“Gretchen Whitmer’s unilateral broadside on Michigan’s builders and contractors is both illegal and devastating to our state’s workforce,” he said in a statement. “Whitmer has spent the last 2 years ignoring state lawmakers while she destroys our jobs and economy. Now she’s signing illegal orders to undo laws that protect workers and taxpayers. Every worker in Michigan deserves the Governor’s respect. Instead she’s attacking them.”

Greene said the governor lacks the authority “to direct her departments to circumvent state law. And a court of law will ultimately determine that.”

Litigation, however, could be difficult. Case law gives no standing to a disgruntled bidder, meaning a firm that loses a bid because it declined to pay workers the prevailing wage would have a difficult path in court. Opponents of the governor’s action may have to find someone with standing to bring a case.

Peter Ruddell, an attorney with the Honigman law firm who has challenged the Whitmer administration on several fronts and whose firm once represented the labor side in litigation over the prevailing wage, said Gov. Whitmer is on solid legal ground.

The Management and Budget Act gives the executive, in this case the governor, broad authority to decide who is the best bidder offering the best value, Ruddell said. The act gives great deference to the State Administrative Board and DTMB to determine the policy and procedures on contracting, he said.

“The governor is spot on,” he said. “Just because you repealed one law doesn’t mean that there isn’t other authority that the executive can utilize this policy if they so choose.”

Sharp criticism came from leading Republican lawmakers.

“This isn’t policy. It’s overt partisan politics. And it smells of desperation,” Senate Majority Leader Mike Shirkey (R-Clarklake) said in a statement. “We know union members are migrating to Republicans because of policy not politics. After losing the confidence of hardworking people in the building trades over her wasteful legal effort to shut down Line 5, she is trying to buy them back. They won’t fall for this cheap stunt. These are people who work too hard to be fooled. At the end of the day, Gov. Whitmer has to live with the fact she cast aside the will of public and the Constitution to attempt to purchase public favor.”

Rep. Thomas Albert (R-Lowell), chair of the House Appropriations Committee, raised the possibility that Gov. Whitmer’s action could compromise discussions on expending the billions of dollars in federal aid and billions more in surplus state revenues.

“Every time the governor pulls a partisan stunt like this, she makes it harder to find bipartisan consensus on state budget issues,” he said in a statement. “If the governor is truly interested in finding agreement on how to invest the billions of dollars available to the state, I suggest she end the theatrics. Her partisanship does nothing but create roadblocks to consensus.”

Among the Republican, free market and conservative organizations slamming Gov. Whitmer’s action were the Michigan Republican Party, Michigan Freedom Fund, Michigan Rising Action, National Federation of Independent Business, Republican Governors Association and Mackinac Center for Public Policy. A common thread among these groups was the claim that Gov. Whitmer had subverted the Legislature.

Unions and Democrats, however, rallied to Gov. Whitmer.

Tom Lutz, executive secretary-treasurer of the Michigan Regional Council of Carpenters and Millwrights, said the organization had asked Gov. Whitmer to take the action and was appreciative of how it would help workers. After the news conference, Lutz said he did not know how many state projects would be affected.

“Make no mistake, when you set the regulation level, it affects everyone down the line,” he said. “I think it will be a real-world impact. On these projects in particular, men and women that are highly skilled will be able to make what is a living wage, the prevailing wage.”

Lutz said he would encourage local governments and school districts to take the same approach as Gov. Whitmer with the same legal argument that the Legislature’s repeal of prevailing wage did not prohibit a government from requiring it. He said there was no doubt a lawsuit would be brought challenging the state’s action. “I think they’d sue her if there was any legal question or not. I’m sure they’ll pursue it,” he said.

Michigan AFL-CIO President Ron Bieber said in a statement that Gov. Whitmer’s action would assure a fair bidding process and good wage.

Rep. Terry Sabo (D-Muskegon), chair of the Michigan Legislative Labor Caucus, said part of the reason the state is facing a labor shortage is the 2018 repeal of prevailing wage.

“That repeal was based on the myth that it would save taxpayer dollars, but, in reality, we’ve only seen lower-quality work and no real savings,” he said in a statement. “It’s common sense: you get what you pay for. The best way to recruit and retain workers isn’t to encourage a race to the bottom but to give them good benefits and pay them what they deserve. I’m sick of hearing Republicans claim they support our blue-collar workers when they do nothing but hurt their bottom line.”

House OKs Child Care Expansion Bills; Petition Submission Timeline Bill

The expansion of child care opportunities in Michigan inched closer to reality after the House overwhelmingly passed a series of bills to spend the $1.4 billion from the 2021-22 fiscal year budget on the services.

Of the many issues the package seeks to tackle, it would increase the number of children family child care and group care homes can serve and rescind rules regarding licensing child care centers in multiple occupancy buildings.

“This has long been an issue for parents, and we’re really seeing a pressing need for it right now as pre-COVID daily routines return all over the state,” Rep. Jack O’Malley (R-Lake Ann) said. “This plan begins a process of more effectively meeting the needs of families.”

HB 5041 passed 99-4, HB 5042 passed 97-6, HB 5043 and HB 5044 both passed 87-16, HB 5045 passed 99-4, HB 5047 passed 102-1, while HB 5046 and HB 5048 passed unanimously. The bills late last month saw overwhelming support in the House Families, Children and Seniors Committee (See Gongwer Michigan Report, September 28, 2021).

The Michigan League for Public Policy heralded the overwhelming support for the package in a statement following the vote, specifically thanking Rep. O’Malley and the rest of the bill sponsors for their work.

“Our feedback from parents and research and data show how great the need for infant and toddler care is across the state, especially in rural areas, and that’s an important piece of today’s legislation,” MLPP External Affairs Director Alex Rossman said. “The League has also been advocating for family child care networks as a way to help our home-based child care providers with the business side of their work and enable them to focus on what they do best.”

Rep. Ranjeev Puri (D-Canton), sponsor of HB 5044, said that as a father of two young boys, he knew firsthand the hardships parents face when spending money on child care and called the passage of the bills a “win for families all across Michigan.”

“Providing affordable child care that allows parents to work – especially working mothers who have been unable to return to the workforce following the pandemic, and fairly compensates hard-working child care providers is essential,” he said in a statement.

The bills now move to the Senate for further consideration.

PETITION TIMELINE FOR CANVASSERS APPROVAL: Also passing the House Wednesday was SB 280, sponsored by Rep. Ruth Johnson (R-Holly), that would require initiative petitions to be filed with the Department of State at least 160 days before the election to appear on the ballot if not enacted by the Legislature.

It would also establish a 100-day period for canvassing a petition, and require that any petition submitted by the 160-day deadline to be reviewed by the Board of State Canvassers in time for that upcoming election – even if the canvassing period would be less than 100 days.

The bill passed the Senate late last month on a 20-16 vote along party lines and passed the House Wednesday in a 55-48 vote.

It now heads to the governor’s desk.

Biden Plugs Federal Aid Bills, Shrugs Off Demonstrators 

President Joe Biden visited Howell on Tuesday as he continued to press the case for twin infrastructure and economic relief bills struggling to clear Congress.

President Biden toured the International Union of Operating Engineers Local 324 training facility. He was joined by several Michigan politicians including Gov. Gretchen Whitmer, Lt. Governor Garlin Gilchrist and U.S. Rep. Elissa Slotkin (D-Holly). Rep. Slotkin also rode to the facility with President Biden from Capital Regional International Airport in Lansing.

“I want to set one thing straight: These bills are not about left versus right or moderate versus progressive or anything that pits Americans against one another,” President Biden said according to a transcript of his remarks. “These bills are about competitiveness versus complacency. They’re about opportunity versus decay. They’re about leading the world or continuing to let the world pass us by, which is literally happening. To support these investments is to create a rising America, America that’s moving. And to oppose these investments is to be complicit in America’s decline.”

To support these bills is to pursue a broader vision of our nation. And to oppose them is to accept a very cramped view of our future.

President Biden’s trip to Howell was something of a trip into the lion’s den. Livingston County, especially the Howell area, remains an overwhelmingly Republican area that President Biden lost by a large margin to former President Donald Trump in 2020. A sizeable contingent of protesters was lining the route President Biden traveled to the Operating Engineers facility.

A pool report of questions asked of President Biden while on the tarmac at Capital Regional International Airport indicated President Biden was asked about the Trump signs outside the event in Howell.

“Makes me smile,” he said. “I get more pumped up.”

Among those also on hand with President Biden at the facility besides Gov. Whitmer, Lt. Gov. Gilchrist and Rep. Slotkin were U.S. Rep. Dan Kildee (D-Flint), U.S. Rep. Debbie Dingell (D-Dearborn), U.S. Rep. Andy Levin (D-Bloomfield Township), U.S. Rep. Rashida Tlaib (D-Detroit), U.S. Rep. Brenda Lawrence (D-Southfield), Attorney General Dana Nessel, Senate Minority Leader Jim Ananich (D-Flint), House Minority Leader Donna Lasinski (D-Scio Township) and Michigan AFL-CIO President Ron Bieber.

Democrats praised President Biden’s visit.

“This federal investment in infrastructure is another piece of the puzzle that, along with our historic state budget, will create a brighter future for Michigan,” Lasinski said in a statement. “Democrats are delivering for working families across the country, and this transformative plan will lay the groundwork for success for generations to come. As we emerge from the worst crisis we’ve seen in our lifetime, our work continues to ensure everyone in our state has the support they need to not only recover, but thrive.”

Republicans were critical and sought to tie Whitmer to President Biden.

“Joe Biden’s failed attempt to boost Gov. Whitmer’s popularity Tuesday can’t hide her failed record as governor. Michiganders are fed up with her disastrous response to the pandemic, and her inability to protect good paying jobs. Ford is closing a plant in Michigan, while building state-of-the-art facilities in Kentucky and Tennessee, because of Whitmer’s failures to lead. We deserve better,” said Republican gubernatorial candidate James Craig in a statement.

Whitmer Calls For Talks On Spending $5.7B From Feds

Gov. Gretchen Whitmer asked legislative leaders Tuesday to “get back to the negotiating table and talk about how to invest” the $5.7 billion Michigan has received from the federal government as part of the American Rescue Plan.

Gov. Whitmer also called for equipping the Michigan Economic Development Corporation “with more resources and more advanced procedural and legal tools that will enable them to be even more aggressive in pursuing projects and competing to win.” Gov. Whitmer noted Ford Motor Company’s recent decision to build two electric vehicle plans in Kentucky and Tennessee.

Ford and the Whitmer administration have said Michigan was not part of Ford’s evaluation for choosing a site. The company has said Michigan lacked the necessary site to be in consideration.

The open letter to House Speaker Jason Wentworth (R-Farwell), Senate Majority Leader Mike Shirkey (R-Clarklake), Senate Minority Leader Jim Ananich (D-Flint) and House Minority Leader Donna Lasinski (D-Scio Township) comes less than a week after Gov. Whitmer signed the 2021-22 fiscal year budget into law.

Gov. Whitmer is hoping to capitalize on the momentum from those successful budget talks to appropriate the unprecedented windfall the federal government has given to the states to help with recovery from the coronavirus pandemic.

“It feels good to get things done, and this year, we’ve done a lot together. This summer, we made the largest investment in K-12 education in state history without raising taxes, and last week, we passed a bipartisan budget to put 167,000 Michiganders on a tuition-free path to higher education or skills training, expand low or no-cost childcare to 105,000 kids, fix 100 bridges, and more for our families, communities, and small businesses,” Gov. Whitmer said in the letter. “We worked together to put Michiganders first. We made critical investments that will make a real difference in people’s lives. We showed Michiganders that they elected a divided government, not a dysfunctional one. Now, we must continue in that spirit of collaboration to finish out 2021 strong. We must stay laser-focused on growing our economy and creating good-paying jobs.”

Gov. Whitmer reiterated her call for spending to boost the economy and also called for putting money into infrastructure.

“After a once-in-a-century year, we are poised for a once-in-a-generation opportunity and I am confident that together, we can usher in a new era of prosperity for our families, communities and small businesses,” she wrote in the letter, also signed by Lt. Governor Garlin Gilchrist.

Shirkey, in a statement, said Gov. Whitmer’s focus on the economy does not sync with her efforts to shut down Enbridge Line 5.

“I have had this conversation with the governor before,” he said. “All economic development and infrastructure conversations ring noticeably hollow as long as it is the Governor’s intention to shut down Line 5.”

Gideon D’Assandro, spokesperson for Wentworth, said the speaker had not yet reviewed Gov. Whitmer’s letter.

Senate GOP Completes Passage Of 2 Voter ID Bills After Delay

Senate Republicans on Thursday moved the final two of a three-bill slate of voter identification changes the day after a successful stalling tactic by Democrats, moving the bills a step closer to the governor’s desk and all but certain vetoes.

The Senate action on SB 304 and HB 5007 by votes of 20-16 followed a renewed round of partisan debate.

Under SB 304, which saw an S-3 substitute adopted before passage, those voting without showing identification would cast a provisional ballot and must receive notice that it will only be tabulated if the voter verifies identity with the proper local clerk within six days after the election.

The substitute also spelled out the options for proving identity and residence, which, for those without a state ID, would include a birth certificate or Social Security card combined with a current utility bill, bank statement, paycheck, government check, or other government document to prove residence.

The S-1 substitute for HB 5007 would remove the fee for obtaining a state ID card with some clarifying language to align it with the other voter ID bills passed this week.

While there was no repeat of the surprisingly successful Democratic parliamentary move on Wednesday to delay action by adjourning (See Gongwer Michigan Report, October 6, 2021), the proceedings were still marked by objections that slowed the process and created an at times bitter debate.

Senate Minority Leader Jim Ananich (D-Flint) said Republicans ran for office under the exact standards they are now attacking. He, like other Democrats have for months, questioned the need for the legislation and said there was no evidence of fraud in the November 2020 elections.

“We have to get to the point where we deal with reality,” Ananich said. “The election was secure, our laws worked. … It’s time to move on.”

Sen. Ed McBroom (R-Vulcan) questioned Democrats’ purpose being in office if they have no interest in amending laws when necessary.

“If you don’t believe we should have some guardrails in place, what guardrails would you like to have?” McBroom said.

Sen. Curtis Hertel Jr. (D-East Lansing) replied that there are many reasons to amend laws but there is no compelling reason to do so now when it comes to elections.

“There is no reason that improvement is needed,” Hertel said. “The only reason that we are trying to change this is because of a false big lie that the election didn’t have integrity.”

Hertel then accused Republicans of trying to upend the will of the people in 2018 when they voted to allow no-reason absentee balloting and created the independent redistricting commission.

At this point of the debate, frustrations began to boil over.

Sen. Kim LaSata (R-Bainbridge Township) lodged an objection to Hertel’s speech, citing his use of broad, general comments on elections not pertaining specifically to the bill on the floor.

The lieutenant governor said the point was taken and urged lawmakers to stay on topic.

When McBroom rose to respond to Democratic comments, he began by saying the content of the bills being considered were not new ideas. Democrats then interrupted, possibly in retaliation to the objection by LaSata, and sought to lodge a similar objection, to which McBroom shook his head and said, “Seriously?”

Ultimately, McBroom was able to continue. He countered Hertel by saying the 2020 election report the Senate Oversight Committee that he chairs released found potential vulnerabilities with the elections process.

Sen. Erika Geiss (D-Taylor) said the bills being pushed by the Republicans mirror proposals introduced in nearly every other state following the November 2020 election and said the changes should not be pursued.

“This is disgusting and despicable, and we should be better than that because that’s not what we were sent here to do,” Geiss said. “We were sent here to help the residents of this state in all matters and that includes being able to exercise their freedom to vote, not trying to put up obstacles and barriers to it. This is a bunch of malarkey.”

During the debate on HB 5007, two proposed Democratic amendments failed along party lines.

Sen. Mallory McMorrow (D-Royal Oak) proposed including funding for the proposed changes. Sen. Jim Stamas (R-Midland) urged rejection of the amendment, citing the governor’s track record of rejecting appropriations in policy bills.

Ananich’s amendment would have removed the tie-bar with SB 303 that passed on Wednesday.

Michigan Freedom Fund Executive Director Tori Sachs in a statement praised the Senate following the vote.

“In Michigan, we’re required to show our ID for everyday tasks like picking up a prescription, cashing a check, and driving a car. Eighty percent of voters support requiring an ID to vote to make sure our elections are just as secure,” Sachs said. “Providing photo ID at no cost to voters will only make that easier. We encourage the House to approve these common-sense bills quickly, and send them to Gov. Whitmer for her signature.”