An EFCA Compromise?

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In describing the Employee Free Choice Act, Chris writes:

The bill would eliminate employer-mandated secret-ballot elections in the union organizing process, allowing workers to potentially form unions via petition.

And that's absolutely right. But as T.A. Frank has argued in The Washington Monthly, this is not necessarily the most essential part of the bill from the perspective of organized labor or, for that matter, those who hope to limit labor's influence.

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.

So why the focus on card-check and eliminating employer-mandated secret-ballot elections? Frank argues that this represents a rhetorical strategy on the part of EFCA's opponents.

Given that card check is substantively minor, why has it come to define the entire debate about EFCA in Washington? Because it is the one element of the bill that its opponents can object to and still seem principled--it's easier to stand up for "democracy" than for the right of companies to break labor laws without consequence.

And so, as Frank later suggested, a strategic retreat on the most polarizing aspect of EFCA might be an acceptable outcome.

Given that card check probably requires many times more political capital to wedge into the bill than anything else in EFCA, I wouldn't be surprised to see it abandoned in the final version. And I won't be joining liberals and progressives in raising cries of betrayal or spinelessness should Democrats wind up settling for only 80 percent. The long game is what matters here.

Politically, one could go further: by accepting that secret ballots are good and valuable and in tune with American ideals, etc., the labor movement would put its opponents on the defensive. It's hard to see exactly how business groups would counter this move.

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Reihan Salam is a policy advisor at Economics 21, a columnist for The Daily, and a blogger for National Review Online.

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