Article — From the July 2009 issue

Labor’s Last Stand

The corporate campaign to kill the Employee Free Choice Act

On a Monday morning this past April, a few dozen Arkansans from that state’s Chamber of Commerce could be found holing up in a Marriott hotel in Crystal City, Virginia, less than a mile from Washington’s Ronald Reagan National Airport. They assembled in the hotel’s Jefferson Ballroom, on one wall of which hangs a portrait of the third president standing before a giant Declaration of Independence. Despite the early hour, the visitors were cheerful, sipping from big Starbucks cups as they gathered up political literature and hard candies and waited for their program to begin.

These men and women had come to town as part of a lobbying “fly-in” coordinated with the U.S. Chamber of Commerce. Their mission: to battle the Employee Free Choice Act (EFCA), a bill that would make it easier for workers to organize unions, which now represent only 12 percent of the American labor force (compared with nearly a third in Canada and more than a quarter in the United Kingdom). That morning the group was to be briefed by Glenn Spencer, a deputy chief of staff at the Labor Department during the George W. Bush years who is now coordinating the Chamber of Com merce’s campaign against EFCA. Another squad of fly-ins from Arkansas was meeting at the Chamber’s downtown Washington headquarters, and the two forces would soon join to fan out across Capitol Hill for meetings with members of the state’s congressional delegation.

That night, the Arkansans would reconvene at the hotel for a reception and dinner at the Sky View Lounge, an event to help business leaders “maintain close and productive contact” with the state’s two senators and four representatives. Among the sponsors of the dinner were some of Arkansas’s most powerful corporations, including Tyson Foods, the steel company Nucor, and, of course, Walmart. The true purpose of all this effort and expense was to persuade the state’s two senators — Mark Pryor and Blanche Lincoln, both Democrats — to support a Republican bid to stop EFCA from coming to a vote.

After eight years in the Bush wilderness, the labor movement has achieved some early victories under Barack Obama. He has issued an executive order supporting the use of union labor on government construction projects, for example, and another barring federal contractors from seeking reimbursement for anti-union expenditures; also, he signed the Lilly Ledbetter Fair Pay Act, which extends the deadline for filing pay-discrimination claims. But for business, EFCA is seen as a sort of Armageddon. Currently, when workers wish to unionize, the National Labor Relations Board (NLRB) will oversee an election after 30 percent of the employees in a given workplace sign union authorization cards. Under EFCA, if half of the company’s employees sign such cards, no election would be required, a practice that is standard in much of the industrialized world. Another provision of EFCA, and one fiercely opposed by business, calls for binding arbitration after 120 days if a company and a new union are unable to come to terms on a contract.

EFCA’s opponents deride the bill as “card check” and say it would strip workers of their “sacred right” to hold a secret-ballot election. “This is the demise of a civilization,” Bernie Marcus, the former CEO of The Home Depot, said of EFCA during a business conference call last fall. Sheldon Adelson, the hotel magnate and funder of right-wing causes, calls EFCA “one of the two fundamental threats to society,” the other being radical Islam. Randy Zook, head of the Arkansas State Chamber of Commerce, spoke in similarly dire terms when I met him at the Marriott. “For small-business and plant managers to have a chance to survive, they have to be incredibly flexible and incredibly ruthless in terms of efficiency and cost-cutting measures,” said Zook, who before joining the Chamber spent three decades with the Atlantic Envelope Company. “It’s not just about wages but [union] work rules, which are very rigid. We have companies in Arkansas selling 25 to 30 percent of their total output abroad. We are in a global environment, and to succeed you have to be better, faster, and cheaper than your competitors. The business community is unanimous on EFCA, and I mean so unanimous that it’s crazy.”

EFCA enjoys overwhelming support in the House, and there has never been any doubt that the bill will pass there. It also commands a majority in the Senate, but supporters need sixty votes for “cloture,” that is, to stop a promised filibuster by the bill’s G.O.P. opponents. In March, exactly two weeks after the U.S. Chamber sponsored a fly-in from Pennsylvania, Senator Arlen Specter announced that he would oppose cloture on the bill — a potentially fatal blow, because Specter, who himself co-sponsored the bill in 2003 and 2005, was thought to be the Republican most likely to vote for cloture. When he announced in April that he was switching parties, Specter went out of his way to reiterate his opposition to EFCA and cloture.

Two weeks before the Marriott event, Senator Lincoln, always carefully attuned to the desires of Walmart, announced her intention to oppose cloture. This announcement no doubt helped to explain the upbeat mood of the Arkansan delegation, which occupied three rows of folding chairs before a black-draped table at the head of the room. “When you see [Lincoln] later today,” Glenn Spencer told the audience, “it’s important that you thank her and let her know she did the right thing. We really need to get Senator Pryor to follow her lead. We haven’t gotten him quite there yet, but I know you guys will keep working him and we will get him across the goal line. The forest has gotten a little thinner, but we’re still not out of the woods. It’s still too early to pull out the champagne.”

“What about a beer?” retorted Zook, to general amusement.

Spencer said that the strategy now was to win over a few more Democrats “and fully bury this.” From the crowd, a voice asked which Demo crats might be persuaded to vote with business. Spencer counted out about a dozen on his fingers, including Ben Nelson of Nebraska, Jim Webb of Virginia (who the same day expressed reservations about EFCA), Mary Landrieu of Louisiana, Tom Carper of Delaware (“He’s a co-sponsor, but I was on a conference call with him and he said he thought this was a terrible bill”), and Dianne Feinstein of California (“believe it or not”).

“I’m not a seasoned lobbyist like some of those in the room, but as I see it we’re in a pretty good position not to compromise,” said a man in the audience.

“Yeah,” replied Spencer. “We are. But the unions have not given up on this bill. At some point they will have to make a strategic decision: do they try to get a compromise bill now and come back for more later, or do they go down fighting on this bill and then see if they can pick up a few seats in the 2010 elections? This shouldn’t be a partisan issue, but unfortunately it largely breaks down along the lines of Rs and Ds. We’ve got to keep fighting to make sure that a bad compromise bill doesn’t come to the floor, and keep fighting right through 2010.”

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Ken Silverstein is the Washington editor of Harper's Magazine.

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