Wednesday, January 21, 2009

Is card check worth the fight?

Steve Benen notes that TA Frank, writing in the Washington Monthly, thinks that the most contentious provision of the Employee Free Choice Act (the card check) isn't actually all that important. He writes,

The question, then, is how much of a fight the card check provision merits. And the answer is probably a little, but not a lot. What most undermines the secret-ballot process is that employers can violate the law in numerous ways without consequences. Under EFCA, however, every illegal action has the potential to be costly, so firings, spying, threats, or other forms of intimidation would be less likely. Also, there is an alternative way to preserve the secret ballot while guarding against company malfeasance: expedited elections. Under current law, months can go by between when NLRB announces the results of a card check vote and when a secret-ballot election is held. If, however, this campaign window were reduced to just a few days, employers would have less opportunity to intimidate union supporters into changing their minds. Workers I spoke to in Lancaster seemed content with this alternative. And some savvy people in the labor movement I spoke to feel the same way -- provided that employers either refrain from captive-audience campaigning or else grant union members equal access to the workplace during a campaign.

He raises a good point. The issue at hand is the rampant law breaking by employers and the lack of any recourse for employees who wish to organize. Labor has not done a good job of making sure that the underlying issue is well understood by the public. The Chamber of Commerce and the GOP alternatively have done a good job of attacking the solution while ignoring the underlying issue completely.

Frank is also right when he notes that there are other remedies for the issue that labor is trying to address. Specifically, expediting the process so that workers may cast their secret-ballot votes within days of requesting the election instead of the months or years that it can now take.

Frank's solution makes a lot of sense but it ignores the realities that have brought us the card check provision in the first place. It's already illegal for employers to engage in these sorts of tactics and yet they do it anyway. Why do they do it anyway? Because the National Labor Relations Board has been castrated by Republican Presidents, their appointments and their policies since at least 1981. Making more laws serves absolutely no purpose so long as you don't have a way to enforce them. Given the realities of the regulatory structure surrounding current labor law the issue is clearly the lack of enforcement by the NLRB and the subsequent lack of justice for aggrieved workers.

For every Barack Obama in the White House workers have gotten 2 Bushes, a Reagan and a Clinton. Point being that we cannot rely on new laws (or even current laws) because Presidents wield so much power over the enforcement mechanism. Anti-labor Presidents have the ability to single-handedely undermine any new laws or regulations by simply refusing to enforce those laws in a timely manner. Card check subverts that entire process, it removes the power to regulate the behavior of business from the Executive branch (the President and the NLRB) and gives it directly to the workers. It's the only way to ensure that labor law reforms passed under a labor friendly administration continue to have effect under anti-labor administrations.

There are already laws on the books that prevent employers from harassing, firing and threatening workers who are trying to organize. The issue is that employees lack the means for legal enforcement of those laws to protect their rights. Frank argues that we should set up more laws that depend on the benevolence of the Executive branch even though we already know that such a regulatory scheme is wholly ineffectual. It's a fools errand. Card check would allow workers to have control over their own organizing, thus shielding them from the whims of whatever administration happens to be occupying the White House at that time.

Frank goes on to question the utility of the card check fight,

Commentators like Marc Ambinder have called the fight "a quandary" for Democrats, one that carries a risk of disastrous failure. But must it come to that? Deploying political capital wisely means fighting over what matters most, not what matters least. Perhaps the bill's proponents in Congress intend to stand firm in their defense of the card check provision of EFCA. But if they strategically retreat, at just the right moment, like a matador lifting his red cape, will liberals accuse Democrats of selling out labor? Or will they realize that, with or without card check, EFCA will still accomplish what's most needed -- finally, at long last, restoring the rights of workers who seek to organize?

I've already made the case that contrary to what Frank asserts card check actually is critical to making substantive changes to labor law. Beyond that though the political damage that Democrats would do to themselves, much less labor by "strategically retreating" would be disastrous. First of all, it wouldn't be lke a matador lifting his cape. Democrats would be pulling the rug out from under themselves and from under their most effective and loyal electoral ally. After all of the months of build up for this battle and given that the importance of card check to the labor movement (real or perceived) is so well known a retreat would expose labor as ineffectual and weaken it politically, perhaps irreparably. Electorally Democrats need labor. There are no more reliable Democratic votes in the country, save for African-Americans, than union members. The more union members there are, the better Democrats do at the polls. It's that simple. Democrats should support card check because it's a rare piece of legislation that makes sense both from a policy perspective and from a political perspective. Demonstrating the impotence of your largest interest group for all the nation to see is simply terrible politics.

Frank doesn't seem to have a grasp on either the policy issues at hand nor the political. This is too important of a fight for working families and for the Democratic Party to let people play these "sensible moderate" games. There should be no triangulation on this issue, it wouldn't achieve the policy ends and it would be a political disaster.

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