The Public Policy

‘Card Check’ — A Time to Reflect, But Not Rest

Big Labor at its most brazen has been foiled for six years now. But with an ally in the White House, it's hardly ready to concede defeat.

By 4.7.11

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It may not seem so long ago, but it was six years this month the Employee Free Choice Act (EFCA) -- better known as "Card Check -- was introduced in both Houses of the 109th Congress. The House bill had 214 co-sponsors -- including 11 Republicans; and the Senate bill had 44 co-sponsors including then Senators Obama and Biden. Thus began the most serious and protracted congressional battle over labor legislation since 1978. (An earlier EFCA bill had been introduced in the 108th Congress on Nov. 21, 2003, with 209 co-sponsors in the House and 37 in the Senate.)

Remember what "card check" would have done: (1) taken away a worker's right to a federally supervised secret ballot when deciding whether or not to join a union; (2) permit a government arbitrator to impose a two-year contract on employers and employees -- even if neither party consents to the contract terms; and (3) increase penalties only on employers -- not unions -- in worker representation disputes.

In early 2005, at the height of President Bush's power, with significant Republican majorities in both Houses of Congress, not many could foresee the intense five-year battle over this issue. But with the legislative situation and public awareness significantly different today, let's review some of the key dates and events of the last six years.

In 2005 there was neither a hearing nor a vote on either bill in either House of Congress -- so those warning about a possible replay of the legendary 1977-1978 congressional battle over labor law reform legislation were told not to worry. As organized labor quietly amassed commitments from Democrat incumbents and office seekers and a few suicidal Republicans, much of the natural opposition's energy was focused on Social Security and Immigration reform and two Supreme Court confirmations.

After the 2006 elections and the Democrat takeover of both houses of Congress things began to change. In February 2007 three significant events took place: the card-check bill was reintroduced in the House with 233 co-sponsors (though fewer Republicans, because some of the former GOP co-sponsors had been defeated by AFL-CIO backed challengers -- see earlier reference to "suicidal" Republicans) and 46 Senate co-sponsors; the formation of the Coalition for a Democratic Workplace (CDW) was announced with hundreds of trade associations and business organizations joining together to oppose card check and educate the public about its danger to the workplace and the nations' economy; and the announcement by Vice President Dick Cheney that should Congress send card-check legislation to the President it would be vetoed. By March card check passed the House 241-185, but in June fell nine votes short of breaking a Senate filibuster -- and both sides prepared for a long battle.

In November 2008 a seismic shift occurred as labor-backed Democrats increased their majorities in both Houses of Congress and two co-sponsors of card check were elected President and Vice President of the United States -- largely through efforts of organized labor's political and financial support. But a funny thing happened on the way to a slam dunk for Big Labor in the 111th Congress: two years of education work by CDW, an active Chamber of Commerce, critical editorials and opposition from a broad range of pundits (ranging from Warren Buffett to Al Sharpton) slowed the rush to action. The bill did not get introduced until March of 2009 and there were actually fewer co-sponsors in both Houses than the identical bills introduced in February 2007; word leaked out that Speaker Pelosi would not make her members vote on card check until the Senate took action. Several other factors contributed to the slow progress for card check during 2009: Senator Arlen Specter switched parties and positions on allowing the bill to come to a vote; well-known Democrat lobbyist Lanny Davis made news by hinting at some compromise out of the blue (it never materialized); and following the death of Ted Kennedy, Tom Harkin assumed chairmanship of the Senate Committee of jurisdiction saying he would bring up the bill in 2010. But the biggest show-stopper of 2009 was the sizzling Wall Street Journal column in opposition to card check by former Senator and Democratic presidential nominee George McGovern -- it had everyone talking and drove union officials crazy.

As 2010 began more good news came the way of card-check opponents: Scott Brown was elected to the Senate from Massachusetts (while the unions supported his opponent); the Senate calendar became full with health care and financial services reform and a Supreme Court nominee to consider. Meanwhile President Obama's poll numbers continued to decline and in June organized labor suffered its biggest defeat in a Democratic primary in memory when Sen. Blanche Lincoln of Arkansas, who indicated she would not be voting for card check, defeated a well-financed opponent heavily supported by labor unions from all across the country. Perhaps the best analysis of this primary election came from a senior White House official who said, "Organized labor just flushed $10 million of their members' money down the toilet…."

As the Nov. 2010 election approached few Senate Democrats wanted to vote on card check. After the election results were tallied, it was clear both President Obama and organized labor experienced a "shellacking." During the lame-duck session many pet issues were given one final vote by the Democratic congressional leaders. But when the final gavel came down, card check never even received a vote in either House of Congress -- a real tribute to the herculean effort of many organizations and individuals who believe in the secret ballot and free enterprise.

What started out in 2003 as a bill that would never pass; gathered a passing interest in 2005; earned a veto promise in 2007; became talked about by some as inevitable to be enacted in 2009; ended up in a legislative graveyard in 2010; and has yet to be re-introduced in Congress in 2011… but keep your eyes on the National Labor Relations Board.

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About the Author

Patrick Pizzella served as Assistant Secretary of Labor from 2001 to 2009.