Democracy in Action

Frank Askin writes today in the New Jersey Star Ledger about the seeming incontinuity in preserving the sanctity of the secret ballot by virtue of a Senate filibuster. Money quote:

And how do the opponents of the EFCA plan to defeat the bill? By getting the forty Republican members of the 100-member U.S. Senate to block it with a filibuster!

In other words, they are going to protect the democratic right to vote by a vote of just two-fifths of the total Senate.

I think this is right on one level and missing the point on another. As Matt Yglesias has argued again, and again, and again, the ability of a minority of senators to substantively block the legislative action of the entire country is frustrating and counterproductive and needs to change.

That said, it's important to remember that 1) the idea of preserving the 'sanctity of the secret ballot' doesn't necessarily have anything at all to do with procedural maneuvers at the disposal of United States senators and 2) all this sanctity of the secret ballot talk is pretty demonstrably bullshit.

Consider for a moment the following situation: There's an election between Barack Obama and John McCain. The Obama campaign has access to every voter for 40 hours a week during which time they can have mandatory meetings to encourage voters to vote for Obama, while attacking McCain using a variety of factual and baseless claims. If the voters don't attend the meetings they can be fired from their jobs. And if the voters advocate for McCain during those 40 hours/week, there's a decent chance they'll be stigmatized and/or fired. The McCain campaign can try to contact voters, but not during those 40 hours/week, and it's difficult because at the mandatory Obama campaign meetings they encourage voters to throw the McCain campaigners off their porches and/or call the cops on them. After a couple of months of this there's a vote.

Sound democratic to you?

This is an admittedly extreme example, but if you substitute the word 'employer' for Obama and 'labor/union' for McCain, you'll get a rough idea of how things sometimes operate. When anti-card check folks talk about the sanctity of the secret ballot, or democracy, or whatever, this is the type of thing they're trying to keep in place.

I know I say this a lot, but that's fine if your an employer. They're not being evil or unethical -- I'd try to preserve a situation like that too, and I'd oppose anything that tilted the playing field in another direction. But, the Chamber of Commerce doesn't care any more about preserving the secret ballot than they do the Easter Bunny. Neither do labor unions for that matter. It's worth keeping in mind when you're getting barraged by 30 second TV spots.

The Fallacy of EFCA Compromise

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.

The Meaning of Blanche Lincoln's Defection

Until now, support for EFCA has fallen primarily upon party lines. Most Democrats have been supportive, while nearly all Republicans are opposed. With the Democratic majority in the House, it passage in present form would be nearly certain.

President Obama signaled his support for the bill during the campaign, though it appears more and more as though that support is of the 'I'll find the courage to lift the pen and sign the legislation if it shows up my desk' variety. Suffice to say it's not a meaningful part of the administration's agenda at this point.

Which leaves everything up to the Senate. It's been clear for quite some time that 60 votes don't exist for the bill in its present form. Most of the public opposition to the bill has been on the 'card check' provision, with quite a few elected officials and organizations echoing Rep. Tom Price (R-Ga) in labeling it the "Secret Ballot Destruction Act".

Recently though, we've seen Arlen (I was for EFCA, before I was a against it, before I was kind of iffy about it) Specter (D-Pa) say things like:

“I’m opposed to giving up the secret ballot or mandatory arbitration as they are set forth in the bill, but I do believe that labor law reform is past overdue."

Now, just last week we've saw Sen. Blanche Lincoln (D-Ar) coming out against EFCA, not on card check grounds, but on the section dealing with binding arbitration. This is significant for two reasons. First, as I mentioned in my EFCA explanation post, the binding arbitration section in EFCA is probably the most important provision to both labor and business. It hasn't received the hype of card check only because it's more difficult to explain and didn't fit into rhetoric about the sanctity of cherished American institutions. Translation: it's harder to make a 30 second TV ad with that binding arbitration as your straw man.

Secondly, and far more importantly, this now creates a fourth camp. Until now, you had perhaps 50 senators supporting EFCA in its present form, 38 senators in opposition, and 10-12 (nearly all of them Democrats) that had been hesitant to openly support the bill, but were perhaps open to some kind of 'compromise'. With Lincoln foraging the way, the compromise group has now been split into two camps -- those hellbent in their opposition to card check, and those hellbent in their opposition to binding arbitration.

This might sound wonky and complicated, but this is the defining development for EFCA right now. Multiple compromise camps will provide cover for moderate Democrats who want to oppose real labor reform, but count on labor to get them elected, and can't politically come out against EFCA. It also frames the debate poorly for Democrats in general, who can claim individually that they're in favor of 'compromise' while creating conditions under which compromise is impossible. I'll write far more about this soon, but this also frames the issue poorly for labor, as they'll probably be forced to take a hard line stance against those moderate Dems who refuse to wholly endorse EFCA.

Over the course of the next weeks and months, and probably into the next Congress, you can count on members of the Senate dividing themselves almost equally into these compromise camps, and subsequently refusing to budge on the one provision they just can't live with.

I'll be writing a lot more about this angle soon, but it's right to view this development as completely derailing EFCA in this Congress, and perhaps even putting it behind the curve in 2010. To the degree that this was in any part a coordinated strategy by groups opposing EFCA, I think it's brilliant.

What's EFCA?

First things first: For those relatively new to the issue, I wanted to provide a primer for what exactly the Employee Free Choice Act is and why it's important. What follows is my summation. I am completely open to adjusting it with more/better content as well as links to verify information. If you have anything to add, feel free to comment or email me and I will try to improve this post as time passes. This post will remain fixed under "Basics" in the upper right-hand corner of this blog.

There are three main provisions in EFCA. For each component I have included the important language, an explanation of what the language means, and why each change is important:

Provision:

(6) … If the Board finds that a majority of the employees in a unit appropriate for bargaining has signed valid authorizations designating the individual or labor organization specified in the petition as their bargaining representative and that no other individual or labor organization is currently certified or recognized as the exclusive representative of any of the employees in the unit, the Board shall not direct an election but shall certify the individual or labor organization as the representative described in subsection (a).

Explanation: This is the item that has been branded as “card check,” and has been the focus of most public debate about the Employee Free Choice Act. Currently, when a labor union is attempting to unionize a unit of employees, they gather signatures on union cards. When 30% of workers in a unit have signed a union card, an election is held and members vote on whether to form a bargaining unit or not. This provision negates the need for the election. It’s saying that when you sign a union card, you’re “voting” to form a union, and since you sign it in “public,” which in this situation means anywhere outside an anonymous, formal ballot, you’ve forfeited your right to a “private” election.

Importance: This will simply make it easier for unions to form collective bargaining units by removing an existing step in the process. The time between when workers sign a union card and subsequently conduct a vote is time that employers can use to convince workers to vote against union formation. I’m unaware of what percent of the time card drives are successful but union votes fail, but suffice to say that the card check provision would negate this possibility.

Provision:

`(h) Whenever collective bargaining is for the purpose of establishing an initial agreement following certification or recognition, the provisions of subsection (d) shall be modified as follows:

`(1) Not later than 10 days after receiving a written request for collective bargaining from an individual or labor organization that has been newly organized…parties shall meet and commence to bargain collectively and shall make every reasonable effort to conclude and sign a collective bargaining agreement.

`(2) If after the expiration of the 90-day period… the parties have failed to reach an agreement, either party may notify the Federal Mediation and Conciliation Service of the existence of a dispute and request mediation…

`(3) If after the expiration of the 30-day period…the Service is not able to bring the parties to agreement by conciliation, the Service shall refer the dispute to an arbitration board…The arbitration panel shall render a decision settling the dispute and such decision shall be binding upon the parties for a period of 2 years…

Explanation: This part is fairly self-explanatory. After the workers choose to join a union, they have 90 days to negotiate a contract with their employers. If that doesn’t work, the Federal Mediation and Conciliation Service steps in and tries to find an agreement. If, after 30 days, that doesn’t work, an arbitration panel convenes, and settles on a two-year binding labor agreement.

Importance: People who are peripherally following this issue might not be aware that this provision is hugely important, arguably even more important than “card check.” Right now, if a group of employees decides to unionize, that decision is only valid for one (1) year. During that time employers are obligated to engage in a “good faith” effort to reach a contract with their employees. From what I’ve been told, a contract is agreed upon roughly 50% of the time. But employers know the clock is ticking and often drag their feet until the year is up, leaving the union essentially invalidated. Engaging in an organizing effort is time consuming and difficult, even once. If employees decided to vote to organize, and subsequently failed to reach an agreement for an entire year, it can be doubly difficult to try a second time. This provision would literally double the chances of a union organization effort that results in a contract.

Provision:

Remedies for Violations-
(1) BACKPAY- …That if the Board finds that an employer has discriminated against an employee in violation…while employees of the employer were seeking representation by a labor organization, or during the period after a labor organization…the Board in such order shall award the employee back pay and, in addition, 2 times that amount as liquidated damages: Provided further,'.

(b) Any employer who willfully or repeatedly commits any unfair labor practice…while employees of the employer are seeking representation by a labor organization or during the period after a labor organization has been recognized as a representative…be subject to a civil penalty of not to exceed $20,000 for each violation…

Explanation: Again, pretty self explanatory. This section describes the potential penalties that employers would face for violating labor laws and regulations.

Importance: Currently, the sanctions for labor violations are light (does anyone have details on this point, I’m unaware of what current penalties are?). Thus, the relative cost of violating labor law is low and (if you ask anyone doing labor work) violations are common. Correspondingly, the hope is that adding some teeth to the sanctions would make violations less likely.