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?"

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.