The Inevitable Failure of Labor Law Reform

At the beginning of 2009, unions had a reason to feel a little hopeful. The electoral victory spearheaded by Barack Obama the year before seemed to ensure a wave of progressive legislation. The new president even promised to advance the two policies closes to labor’s heart: health care reform and the Employee Free Choice Act (EFCA), a bill that would make it easier for workers to organize their own workplaces. It turns out expectations were needlessly high, and real labor reforms are going to fail the way they always have.

In what looks like a nasty election year, supportive House members who passed the EFCA in 2007 might think twice about voting again for a bill business interests have done their best to depict in a negative light. The Senate's inaction on every legislative front, let alone labor reform, makes real progress very difficult. And now, the Senate has successfully blocked the appointment of Craig Becker to the National Labor Relations board. The Senate, it seems, is not kind to labor.

“It’s very hard to get anything through the Senate right now,” says David Madland, director of the Center For American Progress Action Fund’s American Worker Project. “It’s almost impossible to get anything that is controversial and opposed by the Republican Party. That is very strongly true of labor law reform.”

There are many reasons why EFCA is a four letter word for lawmakers. A powerful business lobby headed by the U.S. Chamber of Commerce has pumped hundreds of millions of dollars into efforts to kill the bill, targeting representatives and senators of states where union membership is low. “If the union movement doesn’t exist, then why make it exist in your state? It complicates the political situation,” says Nelson Lichtenstein, director of the Center for the Study of Work, Labor, and Democracy, a research initiative based out of the University of California–Santa Barbara.

Another explanation is the relative weakness of the contemporary union movement, where membership hovers around 12 percent of wage and salary workers in the United States, compared with almost 30 percent 40 years ago. Union strength tends to be concentrated in the Northeast United States, the Rust Belt, and the West coast, leaving many congressmen and women unmoved by organized labor’s priorities.

Despite these handicaps, unions still have considerable influence, largely because they are one of the only advocacy groups in American politics that can claim an easily mobilized mass membership. Backed by the allies labor has won through their steady championship of progressive goals the labor movement is still hopeful that EFCA will make it through.

“We don’t want to put a time frame on it, but we believe the Employee Free Choice Act will be passed, and we do think it will pass this year,” says AFL-CIO spokesperson, Josh Goldstein, citing strong support in Congress and from the White House. “We can’t just think of this in terms of sixty votes [in the Senate]. “With healthcare we are talking about going through reconciliation and there are other ways we can go [on EFCA too]. I don’t want to lay out the strategy but there are a number of different routes to passing legislation.”

But the presence of a friendly president and large liberal majorities in Congress doesn’t ensure passage of EFCA, or other labor-friendly reforms, by any means. Every Democratic administration since the 1960s has attempted to reform labor law, and every one has failed, despite the support of large majorities in both houses of Congress in their opening years.

Unions backed President Lyndon B. Johnson in the 1964 election, and they supported almost all of his policy decisions, including the Vietnam War. In return, labor wanted to ban so-called “right to work” laws that had managed to take hold in a number of states. “Right to work” laws, despite their appealing rhetoric, actually restrict the ways unions organize and negotiate by banning collective bargaining agreements between unions and businesses that require minimal agency fees from nonmember employees who receive union-negotiated benefits in the workplace.

“Right to work” laws allow employees at a unionized workplace to receive benefits like health care and paid vacation leave without having to pay such agency fees to the union, creating what many workers have called a “freeloader program” to diminish labor’s power. While no worker was forced to join a union even in states without “right to work,” they could be charged agency fees—an amount that’s only a small percentage of dues a member would pay—to finance negotiating costs for those benefits. A ban would have given unions more leverage to retain their ranks, and in the end, it may have lead to a greater number of union members today.

But banning "right to work" laws didn’t happen in Johnson's administration, even though Johnson gladly championed the ban, and it even passed the House in 1965. Then, mirroring recent political debates in Congress, it ran aground in the Senate. An alliance of Republicans and conservative Dixiecrats from the South stopped the bill cold with a Senate filibuster—a rare tactic at that time, usually only used to block civil rights legislation. Despite proactive lobbying from Johnson’s White House to get the 60 votes required to move forward, the bipartisan alliance of conservatives didn’t budge, ultimately killing the proposal. Today, EFCA faces a similar threat, with a Senate that invokes the threat of filibuster regularly to block progressive legislation, most recently with health care reform.

“The Senate is the graveyard of legislation and that has always been true for labor law reform,” says Taylor Dark, assistant professor of political science at Los Angeles State, and author of the book The Unions and the Democrats: An Enduring Alliance. “Labor was a lot stronger in the sixties, and even then they couldn’t do it, largely because of the Senate.”

Every new Democratic administration since Johnson has had majorities in Congress, and they’ve worked labor laws through the House, only to be stopped in the Senate. Because of Congress’ failure to act, federal labor laws haven’t seen a progressive change since the New Deal in the 1930s.

If EFCA isn’t passed before this year’s midterm elections, its chances of passage will be next to nothing. If previous experience is anything to judge by, the support of President Obama and the current majorities in Congress will have a hard time overcoming the Senate’s arcane rules paired with a vehemently anti-union sentiment.

Jake Blumgart is a staff writer for Campus Progress, where this story originally appeared. Follow him on Twitter. This text has been updated to reflect the current status of the nomination.

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