This article proposes an innovative approach to remedying the crisis of political inequality: using law to facilitate organizing by the poor and working class, not only as workers, but also as ...tenants, debtors, welfare beneficiaries, and others. The piece draws on the social-movements literature, and the successes and failures of labor law, to show how law can supplement the deficient regimes of campaign finance and lobbying reform and enable lower-income groups to build organizations capable of countervailing the political power of the wealthy. As such, the article offers a new direction forward for the public-law literature on political power and political inequality. It also offers critical lessons for government officials, organizers, and advocates seeking to respond to the inequalities made painfully evident by the COVID-19 pandemic.
In a historical moment defined by massive economic and political inequality, legal scholars are exploring ways that law can contribute to the project of building a more equal society. Central to this ...effort is the attempt to design laws that enable the poor and working class to organize and build power with which they can countervail the influence of corporations and the wealthy. Previous work has identified ways in which law can, in fact, enable social-movement organizing by poor and working-class people. But there’s a problem. Enacting laws to facilitate social-movement organizing requires social movements already powerful enough to secure enactment of those laws. Hence, a chicken-and-egg dilemma plagues the relationship between law and organizing: power-building laws may be needed to facilitate social-movement growth, but social-movement growth seems a prerequisite to enactment of power-building laws. This Essay examines the chicken-and-egg puzzle and then offers three potential solutions. By engaging in disruption, shifting political jurisdictions, and shifting from one branch of government to another, organizations of poor and working-class people can enact laws to enable the construction of countervailing power.
Agency fees are mandatory payments that certain employees are required to make to labor unions. In recent years, the Supreme Court has moved closer to declaring these fees an unconstitutional form of ...compelled speech and association and may soon invalidate them entirely. The Court — and the scholarship on agency fees — proceeds from the assumption that such fees are employees' money that employees pay to a union. This Article argues, however, that this is the wrong way to understand agency fees for two sets of reasons. One, the Court treats agency fees as employees' money because fees pass through employee paychecks on the way from employers to unions. But this is simply an accounting formalism required by labor law. Because employees have no choice but to pay the fees, the fact that the fees pass through paychecks is irrelevant for purposes of First Amendment analysts. Instead, under the First Amendment, agency fees are — and must be treated as — payments made directly by employers to unions. And payments made by employers to unions raise no compelled speech or association problems for employees. Two, irrespective of the accounting regime, the Article shows why agency fees ought to be treated as union property rather than as the property of individual employees. Unionization, by allowing employees to negotiate collectively, produces a premium for employees covered by union contracts. Agency fees are a small fraction of this union premium. Because it is the union that produces the premium out of which agency fees are paid, and because individual employees would never earn the premium as individuals, the premium and the fees that come out of it should be treated — under the Court's own cases — as the property of the union that secured them. The Article thus provides two sets of arguments with the same fundamental implication: agency fees are not properly understood as payments made by employees to unions, and there is accordingly no compelled speech or association problem with agency fees.
Public policy in the United States is disproportionately responsive to the wealthy, and the traditional response to this problem, campaign finance regulation, has failed. As students of politics have ...long recognized, however, political influence flows not only from wealth but also from organization, a form of political power open to all income groups. Accordingly, as this Essay argues, a promising alternative to campaign finance regulations is legal interventions designed to facilitate political organizing by the poor and middle class. To date, the most important legal intervention of this kind has been labor law, and the labor union has been the central vehicle for this type of organizing. But the labor union as a political-organizational vehicle suffers a fundamental flaw: unions bundle political organization with collective bargaining, a highly contested form of economic organization. As a result, opposition to collective bargaining impedes unions' ability to serve as a political-organizing vehicle for lower-and middle-income groups. This Essay proposes that labor law unbundle the union, allowing employees to organize politically through the union form without also organizing economically for collective bargaining purposes. Doing so would have the immediate effect of liberating political-organizational efforts from the constraints of collective bargaining, an outcome that could mitigate representational inequality. The Essay identifies the legal reforms that would be necessary to enable such unbundled "political unions" to succeed. It concludes by looking beyond the union context and suggesting a broader regime of reforms aimed at facilitating political organizing by those income groups for whom representational inequality is now a problem.
Citizens United upends much of campaign finance law, but it maintains at least one feature of that legal regime: the equal treatment of corporations and unions. Prior to Citizens United, that is, ...corporations and unions were equally constrained in their ability to spend general treasury funds on federal electoral politics. After the decision, campaign finance law leaves both equally unconstrained and free to use their general treasuries to finance political expenditures. But the symmetrical treatment that Citizens United leaves in place masks a less visible, but equally significant, way in which the law treats union and corporate political spending differently. Namely, federal law prohibits a union from spending its general treasury funds on politics if individual employees object to such use—employees, in short, enjoy a federally protected right to opt out of funding union political activity. In contrast, corporations are free to spend their general treasuries on politics even if individual shareholders object—shareholders enjoy no right to opt out of financing corporate political activity. This Article assesses whether the asymmetric rule of political opt-out rights is justified. The Article first offers an affirmative case for symmetry grounded in the principle that the power to control access to economic apportunities—whether employment or investmentbased—should not be used to secure compliance with or support for the economic actor's political agenda. It then addresses three arguments in favor of asymmetry. Given the relative weakness of these arguments, the Article suggests that the current asymmetry in opt-out rules may be unjustified. The Article concludes by pointing to constitutional questions raised by this asymmetry, and by arguing that lawmakers would be justified in correcting it.
The preemption regime grounded in the National Labor Relations Act (NLRA) is understood to preclude state and local innovation in the field of labor law. Yet preemption doctrine has not put an end to ...state and local labor lawmaking. While preemption has eliminated traditional forms of labor law in cities and states, it has not prevented state and local reconstruction of the NLRA's rules through what this Article terms "tripartite lawmaking." The dynamic of tripartite lawmaking occurs when government actions in areas of law unrelated to labor — but of significant interest to employers — are exchanged for private agreements through which unions and employers reorder the rules of union organizing and bargaining. These tripartite political exchanges produce organizing and bargaining rules that are markedly different from the ones the federal statute provides but that are nonetheless fully enforceable as a matter of federal law. By describing the phenomenon of tripartite lawmaking, this Article allows for a more complete understanding of the local role in contemporary labor law. But the existence of tripartite lawmaking also reveals important characteristics of federal preemption more generally. In particular, the potential for tripartite lawmaking within the confines of formally preemptive regulatory regimes points to the limits of preemption's ability to allocate regulatory authority among different levels of government and deliver a uniform, national system of law. State and local lawmaking that occurs through the tripartite dynamic also has a number of distinctive features that become visible once we recognize the existence of this form of lawmaking. As this Article suggests, moreover, tripartite lawmaking is likely not limited to the labor context but may occur wherever federal preemption coexists with the possibility for private ordering.
The proposed Employee Free Choice Act (EFCA) has led to fierce debate over how best to ensure employees a choice on the question of unionization. The debate goes to the core of our federal system of ...labor law. Each of the potential legislative designs under consideration — including both "card check" and "rapid elections" — aims to enhance employee choice by minimizing or eliminating managerial involvement in the unionization process. The central question raised by EFCA, therefore, is whether enabling employees to limit or avoid managerial intervention in union campaigns is an appropriate goal for federal law. This Article answers this foundational question in the affirmative. It reaches this conclusion by conceptualizing federal labor law in terms of legal default rules, drawing in particular on the preference-eliciting default theory of statutory interpretation and the reversible default theory from corporate law. Doing so leads to the argument that card check, rapid elections, and similar mechanisms are best understood as "asymmetry-correcting altering rules" — means of mitigating the impediments that block departure from the nonunion default. Understanding EFCA in this way also requires that we ask how such an altering rule should be constructed. This Article addresses this institutional design question by arguing that card check's open decisionmaking process is flawed and that rapid elections, while an improvement over the status quo, are an insufficient method of mitigating the relevant impediments to employee choice. Accordingly, this Article offers two new designs — alternatives to both card check and rapid elections — that would accomplish the legitimate function of minimizing managerial intervention while at the same time preserving secrecy in decisionmaking.
For labor scholars, and for those interested in labor organizing and the law more broadly, the early twenty-first century has been a time of uncertainty and dislocation. Trade unions, the ...institutions at the core of labor scholarship for generations, are in precipitous decline across the globe. In the United States, trade union density in the private sector is hovering around seven percent; in the 1950s, that figure was thirty-five percent. In fact, the United States has not seen union membership statistics as low as the current figures since the years that predate the New Deal and passage of the Wagner Act.1
