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Don't Confirm Patricia Smith

Of course, you can’t mislead an interviewer in a job interview. Unless, apparently, you’ve been nominated for a government position that requires high ethical standards.

Consider Patricia Smith, President Obama’s nominee for Solicitor of the Department of Labor. Senate Republicans have asked President Obama to withdraw her nomination after documents surfaced contradicting her testimony at her confirmation hearing.

While Smith was Commissioner of the New York State labor department, she created a “wage watch” program that used union activists and other private citizens to act as wage and hour inspectors and report violations to the state. Within weeks of the program’s creation, convenience and retail stores began complaining that it “steps well over the boundaries of even the most constructive collaborations with community groups and advocates.”

No one opposes enforcing minimum wage or overtime laws. However, businesses began to suspect that “wage watch” had less to do with fighting malfeasance and more to do with giving unions a way to target unorganized firms. Union organizers deputized by the state can create a public relations nightmare for targeted firms by reporting spurious violations to the government for investigation.

As the program unfolded, many union organizers applied to join. Curious. Then a union local wrote down its plan to use wage watch in “all of our organizing campaigns.”

Such a misuse of state power to advance a private agenda is troubling. During her confirmation hearings, Smith downplayed the program. She told Senators that the idea for wage watch and the development of the program came from her within department, not from outside groups. She also presented it as a pilot project in New York City that her office had not decided to expand.

Neither of those statements were accurate.

Documents delivered to the Senate show that unions were heavily involved in developing wage watch. It was their idea from the beginning. And the program was hardly a "pilot." At the time of her hearing the New York Department of Labor planned to expand the program throughout the state, even though Smith told Senators otherwise.

It’s possible that Patricia Smith didn’t knowingly mislead the Senate. But if that's true, she must have been completely ignorant about how her subordinates implemented her departments’ signature initiative.

Here's the more likely scenario: Smith knew how her department implemented wage watch but didn’t want the controversy to hinder her nomination, so she misrepresented the facts to smooth her confirmation.

Either scenario is damning: On the one hand, could an administrator so ignorant of her subordinates’ actions be trusted with the third ranking spot in the Department of Labor? On the other hand, a nominee who misleads the Senate has made a mockery of the confirmation process.

Ethics in government are always important, but especially so for the Solicitor of Labor, the department’s top lawyer. This person's job is to give legal advice to the Secretary of Labor and manage the attorneys who represent the department in court. The Solicitor ensures that DoL treats everyone it regulates -- including small businesses -- fairly and without prejudice.

Small businesses need to know the Department of Labor will treat them fairly before the law. Patricia Smith cannot give them that kind of confidence. She should face the same consequences as any private sector job seeker who misleads a prospective employer: the Senate should reject her nomination. 

James Sherk is Bradley Fellow in Labor Policy at The Heritage Foundation.