The recently revised unfunded mandates point of order was invoked in the Senate to kill dueling amendments to raise the minimum wage, one of which included a Republican counterproposal to "offset" the wage increase with several pro-business anti-regulatory provisions. The exchange revealed dramatically the power of the recently revised point of order to stop legislation. In a replay of events from last March, on Oct. 19, both Sens. Edward Kennedy (D-MA) and Michael Enzi (R-WY) offered amendments to the Transportation, Treasury, Housing and Urban Development, the Judiciary, the District of Columbia, and Independent Agencies Appropriations Act of 2006 (S. 3058) to raise the minimum wage by $1.10 over the next 18 months. Enzi's amendment (S. Amdt. 2115), however, included multiple lengthy provisions to ease regulations and paperwork requirements on small businesses in order to "offset" the costs of increasing minimum wage. Both amendments were eventually defeated by an unfunded mandates point of order, but the amendments are likely to resurface in the future. "Offsets" Translates as "Weakened Protections" Enzi's amendment, which was more than 80 pages long, had dangerous anti-regulatory and anti-worker provisions. The amendment, for instance, would have increased the threshold for businesses to comply with minimum wage standards and other fair labor practices from those with sales of over $500,000 to those with sales over $1,000,000, thereby exempting many employers from minimum wage requirements just as it raised the wage. According to remarks on the floor by Sen. Richard Durbin (D-IL), the increase could "deny to more than 10 million workers across America the minimum wage, overtime pay, and equal pay rights." The amendment also included anti-regulatory language that would have allowed small businesses to avoid punishment for failing to provide federally mandated information if the violation is a "first-time" offense. The amendment mirrored language of an amendment to the bankruptcy bill offered by Sen. Rick Santorum (R-PA) last March. Like Santorum's amendment, Enzi's amendment would have prohibited federal agencies from fining small businesses for "first-time" violations of paperwork requirements as long as the company complied within six months of notice of the violation (with some enumerated exceptions, such as tax collection paperwork). The prevailing practice is that agencies almost always waive fines for first-time paperwork violations, but they retain the flexibility to fine first-time violators when circumstances warrant fines -- for example, when a business willfully violates a paperwork requirement, or when there is a need for rapid and timely compliance with an information collection requirement. The Enzi amendment would have eliminated this flexibility and actually could have encouraged even more violations by allowing small businesses to avoid reporting requirements without fear of fine until they were caught for the first time. Businesses could have many "first-time" violations under the amendment. When determining whether a violator was eligible for the "first-time" exemption, an agency would have been allowed to count violations only of that agency's requirements and would not have been able to look at a business's violations of requirements from other agencies. A business could thus have failed to comply with a workplace safety requirement for the Occupational Safety and Health Administration, a toxic substance reporting requirement for the Environmental Protection Agency, and a pension fund reporting requirement under the Employee Retirement Income Security Act -- each time getting the "first-time" violator exemption. In remarks on the senate floor, Sen. Chris Dodd (D-CT) reacted with surprise to the sweeping impact of this exemption: "That is a license, in my view, to go off and do anything, notwithstanding any other provision of law. It could wipe out all other Federal laws. Do my colleagues know which laws are being eliminated, notwithstanding any other provision of law? You could lie and cheat and steal. Am I reading this correctly?" Kennedy went on to say that the amendment would effectively "preempt all 50 States from being able to enforce any of the Federal laws which they are mandated to enforce. I don't know where we get this idea. That could be on safe water, environmental, toxic substances. It could be on oil spills. It could be on any other matter. They preempt the States." Like Santorum's amendment, Enzi's amendment posed a many other problems that could have threatened public protections and undermined state and federal regulations. UMRA Foils Minimum Wage Hike Kennedy's minimum wage amendment (S. Amdt 2063) went down in flames when Sen. Kit Bond (R-MO) raised an unfunded mandates point of order. The Unfunded Mandates Reform Act created a new point of order against any bill that would impose costs on state and local governments above a specific threshold, but the vote count required to overcome the point of order and allow a bill to move forward for a final vote was only a simple majority. Last April, Sen. Lamar Alexander (R-TN) snuck in an amendment to the Senate budget resolution that raised the vote count to a 60-vote supermajority. Kennedy attempted to overturn the point of order raised to foil his minimum wage amendement, but the 47-51 vote to preserve the amendment fell short of the 60 votes needed. Fortunately, Enzi's amendment was also subject to an UMRA point of order and likewise failed. As this case exemplifies, Alexander's alteration of UMRA procedures has transformed a relatively harmless procedural mechanism into an insurmountable roadblock to important protections for the public interest. Any improvements for workers, such as a real increase in the minimum wage, are at stake. If the costs to states of applying new safeguards for their own employees reach $62 million or more, bills creating those safeguards could be killed in the Senate by the UMRA point or order. In fact, since UMRA became law, one of the few statutes ultimately enacted that met the UMRA threshold was the minimum wage increase from the mid-1990s. New environmental protections, for example, which typically either rely on state and local governments as partners in enforcement activities or call on the local governments to modify their own behaviors (as polluters, as managers of water systems, sewers, and waste facilities, etc.) could be subject to an unfunded mandates point of order.