EFCA Dialogue With Professor Michael Goldberg

I'm proud to introduce a new feature here at EFCA Blog. Readers might remember this op-ed in Thursday's Philadelphia Inquirer by Widener University School of Law professor Michael Goldberg, as well as my response.

I contacted Professor Goldberg and invited him to continue this fledgling dialogue on EFCA Blog, and he very graciously agreed. It's important to note how little substantive discussion is taking place on any aspect of this issue, and it's really an honor to have someone like Professor Goldberg take the metaphorical nosedive from the Philadelphia Inquirer to EFCA Blog to help change that fact.

I don't know how long this will continue, as I'm sure Professor Goldberg is a busy man, but with exactly this much ado, I present you with his response to my post:

Thanks for your reaction to my piece. I agree with much of what you write, especially that first contract arbitration is probably a greater source of employer opposition to EFCA than card check. (The portion of my op-ed dealing with arbitration, and stiffer penalties for unfair labor practices, had to be cut for space reasons.)

On the other hand, as you point out, card check is the argument against EFCA that has the most political traction. The anti-EFCA forces know that portraying EFCA as destroying the secret ballot makes EFCA sound un-American. Employer arguments about arbitration come across as more self-serving, and I think can be overcome more easily by EFCA's supporters, than employer arguments based on card check -- insincere as they may be -- which come across as defending not just the secret ballot, but mom and apple pie too.

You're right, employer forces aren't interested in compromise, and neither, probably, are politicians who are completely in their pockets. But taking away the political high ground employers have seized with their "defense" of the secret ballot also takes away some of the political cover some moderate Democratic senators, like Specter and Carper for example, are currently hiding behind to justify their opposition to the current bill.

Without that political cover, maybe enough votes can be found in the Senate to overcome an anti-EFCA filibuster.

-- Michael

And here, is my response:

Michael,
I think I better understand where you're coming from now. First, a point that I didn't make clear in my initial response: The ideas you proposed about gaining a super majority for card check purposes, as well as a secret ballot fallback in cases of labor intimidation are excellent ones. As we both know, the whole labor intimidation argument overlooks the fact that employer intimidation is rampant in the current system, but nevertheless the potential for labor to do the same might exist were EFCA to be enacted, and ignoring that possibility is irresponsible. Your solution would be an equitable one.

In addressing your most recent response, I would say that while I agree almost completely with your summation of the framing of the debate, I disagree with how that framing can be changed. There's no question that business has the rhetorical upper hand as it relates to card-check. Ignoring the issue and concentrating upon Sacred American Institutions ('mom and apple pie' as you hilariously described it) is the way to go. The problem for labor is that any direct rhetorical defense of that argument is a bank shot. It starts out with some variation of "no it doesn't really, because," or "they're being disingenuous because if you think about how things are set up now," and it gets totally confusing for anyone not familiar with the minutia of the issue, which is everyone. More specifically, it's impossible to deflect the apple pie rhetoric in a 30 second TV ad.

What I think you're saying is that if labor makes a genuine effort to preserve the secret ballot under some circumstances that it will make the Sacred American Institution attacks...less...well I don't know exactly. Less what? Effective? Plausible? You say it will provide less 'political cover' for moderate Democrats, but plenty of moderate Democrats are already hiding behind what is a completely disingenuous argument. If these Democrats had legitimate ideological concerns about card check, I think your argument would be dead on, but I suspect that's not really the case.

I guess my point this: the Sacred American Institution attacks will never, ever, stop. In fact, if anything they're an excuse not to compromise if you're business (or maybe even if you're a fence-sitting Democrat). Because even if labor agreed to completely drop the card check provision (a compromise that would clearly be in biz's favor) moderate Democrats would refuse precisely because they'd lose their Sacred American Institution boilerplate. Put more succinctly, for moderate Democrats there's enormous pressure to say you want/are willing to compromise and enormous pressure not to actually compromise. Eliminating the foundation of the rhetoric means you can't hide behind it anymore. That's why (as I've written before) I think you'll see multiple compromise 'camps' emerge, each with their own singular, intractable complaint, the result being that actual compromise becomes nearly impossible.

To close I'll make one final point: I think directly combating the Sacred American Institution rhetoric is a mistake. It can't be done in 30 seconds, or probably at all. Labor's single biggest problem right now is the lack of a coordinated message. Every time I see a pro-EFCA TV spot with a smiling worker I imagine labor throwing money into a trashcan and lighting it on fire.

Every single advertising dollar labor spends should be tying EFCA opponents to the most unpopular people/images in the US. Find the worst thing Rush Limbaugh, Dick Cheney, and random banking CEO 'X' have ever said about EFCA, set it to some dark color backgrounds with scary music, and close with "Why do they hate workers so much? Support American workers. Support the Employee Free Choice Act." Then, I'd go around to every fence-sitting senator, laying three things out on the table: 1) a version of the same ad editing out Dick Cheney and editing in that senator (replacing the word "they" with that senator's name of course) 2) a different ad with smiling workers talking about that Senator's support for workers in that state and 3) The receipt of a $5 million TV ad buy. Then simply ask that Senator, "so how do you feel about EFCA?"

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.