Tuesday, March 24, 2009

Economic Reality vs Moral Imperative: Are they really incompatible?

After smug Twittering by Republican operatives that it might be so, it is now official: Arlen Specter (R - PA) has declared on the floor of the Senate that he will be voting against the Employee Free Choice Act at this time and won't reconsider 'until the economy returns to normalcy.' This is both an unfortunate decision by Senator Specter and an unfortunate choice of words with which to deliver it. I'll start with my substantive policy position on the EFCA, before veering off into political polemic about the choice of words.

The EFCA is a reaction to the harsh union busting tactics adapted by corporations, to control their employees' right to protest and bargain collectively in defense of their rights, with the license granted by 'right to work' state government policies and 'at will' employment policies.

'Right to work', in theory, protects the right of the hypothetical Working Joe not to join a union if he chooses not to do so. This sounds great on paper. The problem is that state 'right to work' laws always contain provisions that go beyond allowing Working Joe to refrain from joining a union if he so wishes. These provisions vary in their specifics, but they are remarkably uniform in their effects: they restrict the ability of unions to organize themselves, to bargain collectively, to strike, and to address employee grievances. Thus every individual is alone facing his employer when strolling into the human resources department, without an advocate or ally. Working Joe is free to refrain from joining a union if he wishes, sure, but if his coworkers manage to unionize they will not be able to gain any positive benefits from it. One is forced to wonder whether the purpose of such state laws, then, is really to protect Working Joe's rights or instead to eliminate Working Joe's rights by rendering impotent the only advocate he might have for those rights. Furthermore, 'right to work' laws are guilty of a particularly reprehensible intellectual dishonesty: they posit a counter-intuitive argument in which Working Joe's rights are threatened by a predatory union and safe-guarded by a benevolent employer.

I don't know what is more morally objectionable: the bald-faced arrogance of that lie, or the moral failure of many voters and politicians in both parties in either believing it or failing to properly expose it. This is not a case of Republican bad guys and heroic Democrats, sadly. Many Democrats have co-operated in advancing these swindles. Nor have we seen significant checks on these policies by either state or federal judiciaries. 'Right to work' violates the citizen's constitutional rights to speak and publish his views and to assemble freely in protest. The corporation, through 'right to work', is given fascist police powers that the government itself is denied by the U.S. Constitution. All those libertarians out there who interpret 'less government regulation' as meaning 'greater individual liberty' should have a much harder time swallowing that than they do.

This brings us to the second half of the one-two punch, the right cross to punctuate the left jab: 'at will' employment agreements. Once again we are addressing a policy grounded in a legal fiction. The 'at will' position assumes that employee and employer suffer equal restraint from a contractual agreement and receive equal freedom from restraint by the absence of a contractual agreement. An 'at will' employment agreement gives Working Joe the theoretical freedom to leave his job at any time for or without any reason, if something better comes along. However, it contains no protections allowing Working Joe to secure his benefits, last paycheck, or a good reference is he does so. Most companies require an employee to sign away his right to secure the return of deposits paid to the company or remuneration for unused benefits (such as sick time or vacation pay) should he quit without notice. So Working Joe is not really free to quit at any time.

More importantly is what Working Joe gives up in return for receiving his questionable right to quit at any time for any or no reason. He gives up his right to sue for wrongful termination unless he can prove discrimination covered by the 14th Amendment. This is because the 'at will' agreement gives the company the right to fire Working Joe at any time, for any or no reason, without notice or warning. This not just the freedom to lay Working Joe off if necessary, with recourse to union benefits or federal unemployment aid. This is the right to fire Working Joe and leave him without legal recourse, at the company's pleasure. Working Joe's very right to seek redress in court is contractually eliminated by an agreement alleged to give him more 'freedom.' When really read and considered, the typical employment agreement under 'at will' policies is not an 'at will' agreement at all. It is a pernicious one-sided contract that binds the employee while leaving the employer absolutely free. This rather blows 'equal protection under the law' out of the water.

It should be noted that none of this, neither 'right to work' state laws nor 'at will' employment regulations, serves any purpose but to increase the ability of an employer to control the life and limit the liberties of his employees. 'At will' employment agreements have justified firing employers for their political opinions, for the way they vote, for their internet activity at home, for personal activity far removed from the workplace, and a great many other personal areas into which the employer should have no power to intrude. These agreements are possible because 'right to work' inhibits the creation and operation of a union to oppose these policies. 'Right to work' is bolstered, in turn, by the most important right the employer gains from 'at will' agreements: the freedom to specifically fire an employee for union activity. Remember, the employer can fire the employee at any time, for any or no reason.

Which brings us to the EFCA. Labor unions offer the first line of defense against the kinds of abuses specifically legalized by 'right to work' and 'at will' laws and policies. Labor unions can (and have) organized aggressively against 'right to work' laws, and a strong union can prevent an employer from requiring and enforcing 'at will' employment agreements. When one really considers the minimal gains that Working Joe receives from these laws and agreements against the vast power the employer receives over him in return, it is impossible to claim that these laws are for Working Joe's benefit. They very specifically and explictly benefit corporations to the detriment of the civil rights of American citizens. Passing the EFCA would be a beginning (not the end, it is not radical enough to finish the job, merely to start it) of the restoration of the balance of power between business and labor.

Which brings me back to Senator Specter and into the political polemic portion of this post. His statement 'until the economy returns to normalcy' is fraught with conservative economic meaning. 'Return to Normalcy' was the campaign slogan for President Warren G. Harding, an affable newspaper publisher from Ohio who was driven into politics by a combination of naive political idealism and a lot of corporate money. At the time he ran for president, then-Senator Harding was a member of the reactionary wing of the Republican Party which had helped to destroy President Woodrow Wilson's second term in the wake of WWI. His nomination was a rejection of the more left wing 'Progressive Republican' policy positions of Theodore Roosevelt, William H. Taft, and Robert 'Fighting Bob' LaFollette (one of Harding's opponents for the presidential nomination) and an embrace of the conservative, laissez-faire stance for which President William McKinley's administration had been infamous during the beginning of the Gilded Age.

The meaning of the slogan, 'return to normalcy', was two-fold. The first and obvious meaning was that WWI was over, the peace settlement was settled, and the country would get back to business as usual. The second was a complete rejection of reformist politics, both President Wilson's Democratic 'liberalism' and a rejection of the 'progressivism' and 'gradualism' (both, as more than one historian has noted, were very close to the same thing) that had come to dominate the Republican Party under presidents Roosevelt and Taft. The people backing Harding believed nothing was wrong with the country and nothing needed to be changed. Temporary crises had been conquered and life would go on as it had before them.

This led directly into the counterfeit prosperity of the Roaring Twenties and the tragic economic collapse of the Great Depression. Temporary measures had clearly not been enough, meaningful reform of the system was still needed and had been rejected.

Senator Specter's use of the phrase now is even more egregious, because we are still in the midst of crisis. The ECFA is part of the means of defeating that crisis. Now, as during the Gilded Age, we are faced by jarring imbalances between the rich, the middle class, and the poor while the divisions between the middle class and the poor continue to break down. We cannot wait for matters to 'return to normalcy' before acting to face that crisis, we must move boldly to fix the broken parts of the system. Not only will that bring the current crisis to an end more rapidly, but it will secure us from future repetitions of the same. I firmly believe that the decline in real wages for the working class, the loss of blue collar jobs overseas, and the Bush-era gutting of the middle class all directly share portions of the responsibility for the current crisis. We must act to correct these problems as surely as we must act to correct the problems of the financial markets.

Senator Specter's argument is that in times of economic difficulty, major corporations should have more power to exploit their employees and employees should have less freedom to guarantee their livelihoods and civil rights from the most egregious exploitation. He may not realize it, but it is. The employer-employee relationship at the present time, under present conditions is as adversarial as the political system or the criminal justice system. The employee needs to be restored his legitimate ability to defend himself in that system. The current economic crisis makes that moral imperative all the greater rather than reducing it in any way.

Senator Specter is wrong to change his vote on the EFCA. I can only hope that he realizes he is wrong or that another Republican steps into the breach to fight for the right and the good in our time of crisis.

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