In today's Philadelphia Inquirer law professor Michael Goldberg keyboards a column describing how card check proponents and opponents can come together to craft a compromise. Though his piece does a fair job of assessing the arguments involved, it does a spectacularly poor job of parsing through the political realities of the issue.
His fundamental mistake is buying into the argument that the card check provision is somehow standing in the way of labor "reform". As I've discussed several times on this blog, it's hard to make a compelling argument that the binding arbitration provision isn't significantly more important than card check. The reason card check has been the primary focus of opposition is because of its rhetorical effectiveness, not its practical implication.
The bulk of Dr. Goldberg's piece entails a description of several interesting modifications to the card check provision that would, in fact, be equitable compromises. But ultimately the suggestions aren't helpful because they rest upon the premise that both sides are interested in a compromise, or that there is some kind of political and social inertia at work that makes compromise possible.
I have no doubt that labor is interested in all kinds of compromise. I think labor would jump at the chance to see this legislation passed with the entire card check provision dropped. I think labor would consider supporting this legislation if the binding arbitration provision were dropped. I guarantee labor would agree to drop the provision upping fines for violations of labor law if card check and binding arbitration remained in the bill.
But, the bottom line is that the business community (and the lobby that represents it) isn't interested in any of those compromises, which makes Dr. Goldberg's haggling over the second most important provision in the bill akin to decrying the lack of a yacht market in Equatorial Guiana -- unquestionably true, but ultimately irrelevant. The business community believes it will be weakened by any part of any provision in EFCA becoming law. The labor community believes it will be strengthened by any part of any provision in EFCA becoming law. This isn't the crucible from which compromise is forged.
It's very important to note that this doesn't make business bad, or mean, or any other pejorative term. Those in positions of relative power don't 'negotiate' with groups that have nothing to offer them. Business believes labor has nothing to offer them as EFCA currently stands, and so no compromise will satisfy the interests of business. Maintenance of the status quo is the best possible scenario for business, and they will rigidly hold that line.
Two things are to be learned from this:
1) Given this reality, simple game theory suggests that labor has no incentive to compromise either. If they do, they'll soon realize that the goal posts have been moved and that more compromises will have to be made, until there are so many compromise factions that 60 senate votes (and that's really what we're talking about) becomes impossible. If 58 or 59 yes votes can be assembled, compromise may be possible to buy a single vote or two, but given the incredible incentive moderate Dems have to jump off this bill, I think even that is unlikely.
2) Labor has nothing to offer business, but they have everything to offer Democrats. Democrats (generally) need the support of labor, and labor needs to make clear that the price of that support is the backing of EFCA in its totality. In my opinion, EFCA's not passing without 60 uncompromising 'yes' votes. I think the odds of acquiring those votes, either in 2009 or with the 2010 Congress are slim, but the fact remains that if this thing is ever going to pass then labor needs to get the Joe Sestak's of the country elected, or at least exert enough pressure on Specter that he supports EFCA in its entirety (again).
The difference so far is that business appears to have a coherent (if not explicit) strategy: have different camps attack every provision in the bill and correspondingly negotiate in bad faith on all levels. Again, that's not bad, that's exactly what they should be doing.
Labor, on the other hand, doesn't seem to have found a way to advance their agenda given this political and economic reality. And Dr. Goldberg, despite turning his sizable intellect toward card check, has to realize that no conversation about any aspect of EFCA is particularly relevant unless these realities are addressed.