A Way Forward On EFCA -- Protecting Workers & Secret Ballots?

Cross-posted at BryanBarash.com, where I gather my thoughts on politics and technology

I've been thinking a lot lately about the EFCA, as Congress prepares to debate and news stories fly that labor may be willing to make a concession on the highest profile of the issues contained in EFCA, which is Card Check.  

For those who don't know, Card Check means that if 50% of employees check a card saying they want a union, the business must recognize that and negotiate with them in good faith.  Right now they can organize a union that way, but often companies refuse to recognize the union, which is currently legal.

Continue below the break for my explanation of a possible way forward that protects both workers rights AND the secret ballot.

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A Short History of the Secret Ballot

It's interesting to see the right attempt to frame the battle of the Employee Free Choice Act as one as  where they are protecting a sacred right, that of a secret ballot, enshrined in the Constitution by the Founding Fathers. It's actually nowhere to be found in the Constitution. Not surprising since the secret ballot dates to 1856. It's an Australian invention hence the secret ballot is also called the Australian ballot. The English would adopt the procedure in 1872. Its adoption elsewhere was much slower.

In the United States, the history of the secret ballot is a short one nor was its initial implementation in the US some paragon of democratic virtue either. As with much of American history, there are myths and then there is the truly mythical. The secret ballot forms part of the latter. The fight for expansion of the suffrage has been long and exhaustive nor are we by any means done. The sad truth is the secret ballot was introduced in Louisville in 1888 as a means of curtailing suffrage, not expanding it (the Utah territory did use a secret ballot in 1878 in an experiment but Louisville's adoption is the first sustained use of the Australian-style ballot).

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De-Mystifying The Employee Free Choice Act

Today The Employee Free Choice Act was introduced in Congress and, as David Sirota notes, some Senators who had voted for cloture in 2007 on the very same bill are getting cold feet now, complaining that EFCA is "divisive and distracting." 

Expect this "divisive" talking point to be the meme du jour - it's perfect for lawmakers who desperately want to avoid talking about the substance of the issue, and instead need a process argument to justify their gutlessness. [...]

Same arguments, different issues - but now, with almost 60 Democratic votes in the Senate, and therefore no credible Republican foil to blame legislative failure on.

The fact is, in 2007 The Employee Free Choice Act passed the House 230-195 with 234 co-sponsors and had 51 votes for cloture in the Senate, which included every single Democrat (except Tim Johnson who was ill), both Independents and even Arlen Specter. That's right, Ben Nelson, Blanche Lincoln, Mark Pryor, Arlen Specter...they all voted for cloture 2 years ago and now are using the economic crisis as an excuse to flip-flop on their support, playing into the right's frame that this bill would be some radical change. Considering the bill had the support of every Democrat in Congress across the ideological spectrum, it's hard to make the case with a straight face that EFCA is anything but a mainstream and even centrist bill.

But, as Rachel Maddow explored on her show last night, the right is winning the message war on EFCA and hence we're seeing our more conservative Democrats waver. How are they doing it? Well, by lying, of course. All you have to do is listen to Warren Buffett, Obama supporter and all around economic guru, get the facts of EFCA wrong to see how widely the mis-information has spread:

"I think the secret ballot's pretty important in the country. I'm against card check to make a perfectly flat statement..."

As Rachel made clear last night, this idea that EFCA would eliminate the secret ballot and make employees more vulnerable to pressure from scary union bosses is a myth of the right. It's a message that resonates even though, the truth is really not that difficult to grasp. Media Matters sets the record straight:

...current law already allows a union that shows it has the support of a majority of workers to represent the workers [via card check] if their employer voluntarily agrees to recognize the union.

Not surprisingly, many employers don't voluntarily recognize the validity of the card check and so impose a secret ballot NLRB election. The The New York Times explains how EFCA would change current law:

The bill would give workers the right to join a union as soon as a majority of employees at a workplace signed cards saying they wanted one. Business groups have attacked the legislation because it would take away employers' right to insist on holding a secret-ballot election to determine whether workers favored unionization.

What the right doesn't tell you is that the secret ballot is still an option under EFCA but it's not up to the employer, rather it's up to the workers. As Rachel said last night:

The Employee Free Choice Act does not abolish the secret ballot. People get a choice. It's a pretty simple thing to explain actually: Employee Free Choice Act...

The messaging on the left thus far has been sort of abstract "it will rebuild the middle class," instead of confronting the "abolish the secret ballot" trope. More Democrats need to make this clearer, as Jeff Merkley did in his press release on EFCA today (via e-mail):

Oregon's Senator Jeff Merkley today co-sponsored legislation to make it easier for workers to bargain collectively at their jobs.  The Employee Free Choice Act would streamline the process for forming a union and empower workers.

"When workers are able to band together to improve their workplaces and wages, we strengthen the middle class.  During this time of economic downturn, it is more important than ever that workers have the opportunity to earn a good wage and provide for their families," said Merkley.  "The Employee Free Choice Act is a critical component of this effort."                                                                       

Currently, federal law allows employers to choose whether workers use a petition or election process to decide whether to form a union.  The Employee Free Choice Act would allow the workers themselves to decide whether and how to organize, so they have a free and fair opportunity to make that decision.

"Whether forming a union is in workers' best interests is a decision that should be made by workers, not management," said Merkley.

More Democrats need to focus on this idea of choice -- on the empowerment of workers to choose between card check and a secret ballot and not allow the right to spin this as the abolition of "a pillar of democracy."

If you haven't seen Rachel's piece on EFCA, watch it below (and if you have, well, watch it again):

Update [2009-3-10 20:18:8 by Todd Beeton]:Looks like no vote on this until the summer. It's time to get these wavering Dems back in the fold.

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Workers Speak Out on Employee Free Choice

The U.S. House and Senate introduced the Employee Free Choice Act today, launching the legislative battle to restore workers' freedom to form unions and bargain for a better life.

It's a great day for working families and a sign of the change that America voted for last fall. It's important to note that this bill isn't an abstract issue: it affects millions of workers across the country, workers who deserve the ability to bargain for a fair share of the value they create.

At today's Senate Health, Education, Labor and Pensions Committee hearing, some of these workers got a chance to talk about what the freedom to form unions and bargain has meant to them.

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AR-Sen: A Lesson in Empty Republican Bullying

Roll Call has a new article online focusing on Republican attempts to win in 2010 the Senate seat held by Democratic Senator Blanche Lincoln for the last ten years.  The content of the article is a clear statement on how Senate Republicans' only weapon besides obstruction-by-filibuster is toothless bullying.

The article begins by telegraphing how Republicans will attack Senator Lincoln over the course of the 2010 cycle:

This cycle, the NRSC has stepped into the Arkansas race early, attempting to soften Lincoln's poll numbers with attacks on her support for the stimulus legislation and for sending "mixed signals" when it comes to the Employee Free Choice Act, according to an NRSC press release. And when Lincoln announced late last month that Vice President Joseph Biden would join her at her 2010 campaign kickoff this weekend, the NRSC was quick to blast the two-term Senator for being out of touch with voters back home.

"Senator Lincoln's support for runaway Washington spending and her refusal to take a position on `card check' despite representing a right to work state, are among a few of the important issues we are bringing to the attention of her constituents," NRSC spokesman Brian Walsh said on Monday.

Let's take a look at the foolishness contained in this passage:

(Much more below the fold.)

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