This post concludes our symposium on The Anti-Oligarchy Constitution, a new book by Joseph Fishkin and William E. Forbath. Read the rest of the symposium here.
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Liberals and Democratic leaders are finally coming around to the idea that, for the survival and flourishing of the republic, we must resuscitate the labor movement through administrative and legislative action. This had not really been the case during the Obama years. Although labor law reform had made it to the national agenda (in the form of the Employee Free Choice bill), neither President Obama nor Democratic Party congressional leadership put any political capital into enacting it. Hillary Clinton, as the 2016 Democratic Party presidential candidate, spoke of stagnant wages, the need for paid family leave and health insurance, and the lack of “good jobs,” but utterly evaded the need to make it easier for workers to join a union and engage in collective bargaining. Clinton’s choice of vice-presidential candidate, Virginia Senator Tim Kaine, was well in sync with the fact that Democrats—from Silicon Valley libertarians to big city mayors, Wall Street social liberals, and Southern politicians—have been politically comfortable with right-to-work laws. Clinton and the Democratic establishment could not conceive of economic inequalities in terms of workers’ own collective power, a symptom of two and a half decades of Clintonism more generally.
The trauma of the Trump years, the COVID-19 pandemic, and political paralysis have brought us to a different place. The pandemic opened up conversations, long excised from our political culture, about risk, work, and security. Amazon warehouse workers, Starbucks baristas, and front-line workers forced public conversations about bodily safety and health, community well-being, and the relations of domination and submission in 21st century work. In launching a battle to roll back the control of working-people’s lives held by the employing class and insist on their possession of freedom of association and speech, they’ve made unions socially and politically relevant.
For Joseph Fishkin and William Forbath, this shift represents a welcome departure from labor’s flailing attempts to rebuild over the last couple of decades. While organizing strategies and tactics evolved to meet the challenges of new sectors and groups of workers, the public language of labor officials did not. For decades, labor officials have spoken of unionization as a ticket to the middle class—as a great package of wages and benefits. But top leadership has been persistently timid about fundamental political rights or an entitlement to make and enforce constitutional claims. Labor won’t, as Fishkin and Forbath observe, speak the language of constitutionalism. It’s a language 19th century unionists understood, seeking freedom from compulsion. It infused the labor and class politics of the 1930s when they spoke of industrial democracy and demanded a government that used the legislative and executive branches to reconstruct a constitutional political economy that delegitimized or even proscribed arbitrary and abusive corporate power. Striking workers—in the 1930s and 1940s, as much as 1890s—insisted that the stipulations of the 13th, 14th, and 15th Amendment be applied to their workplaces. The sanitation workers and hospital workers who organized in the 1960s forged a civil rights unionism in the name of “Operation First Class Citizenship.”
By the end of the 20th century and turn of the 21st, organized labor’s discourse and formalism left no room for, as James Pope called it, “popular constitutionalism.” During the 2016 Democratic Convention—an event at which no labor official spoke during prime time—SEIU President Mary Kay Henry used her two-minute day-time speech to offer a mantra of raising wages, an admirable goal to be sure, with a brief, amorphous reference to “economic justice” and “racial justice.” AFL-CIO head Richard Trumka was even more dismal, wasting his two minutes boasting that he and the union miners were tougher guys than Trump! The labor movement was sliding into possible oblivion, and Trumka could only offer masculine braggadocio. In our current moment, as far as I can tell through an admittedly cursory read of the AFL-CIO website, the word “democracy” appears exactly once, buried in the subsection on “Social and Economic Justice.”
Can labor fight for the democratization of the economy and polity without…well …fighting for democracy? Without articulating a vision of what a just society is, beyond better contracts? Can we recast labor and economic rights as constitutional requirements? The Right wing, as Fishkin & Forbath point out, never shy away from constitutional claims; in fact, regardless of the issue, right-wing conservatives have aggressively pushed it into the territory of constitutional claims. Take, for instance, the Court’s decision in Janus v AFSCME. The anti-union Right turned the mere collection of an agency fee by public sector unions into an alleged violation of political speech within the First Amendment.
Still, we need to rethink what unions can and will do, especially to restrain oligarchy and to generate what Fishkin and Forbath refer to as “constitutional political economy—[wherein] guarantees of the constitution are tied to the structure of economic and political life.” The system or practice of collective bargaining as implemented in the U.S. during the second half of the 20th century fundamentally did not challenge corporate concentration of economic or political power. For those workers and families under the umbrella of collective bargaining, the union contract did bring rising income, greater consumption, access to health care and retirement, days off—that is, something closer to “security.” Overall, however, American-style collective bargaining was a holding pattern. It froze in place the modicum of power labor had gained, without ever leveling the playing field. After the mid-1950s, collective bargaining for a single contract or with a single firm had little effect on the structure of work; control of technology; company siting, location, or closure; community displacement and its accompanying issues of land, space, and water. It was a holding action until corporate elites devised sufficient strategies—legal, geographical, cultural, political, and structural—to get out from under their hold. It some cases that took only a generation, when companies relocated South and West. The massive, open and successful assault against unionism took about two generations.
Scaling up and Scaling Down
Building worker and union power across the various sectors of the 21st century economy that is linked to greater democratization requires both scaling up from our dysfunctional firm-based system of collective bargaining—to confront the power of vast corporate concentration—as well as scaling down to the community level, which would enable greater self-determination over persistent assaults to decent daily conditions of living.
Significantly, Fishkin and Forbath point to scaled-up remedies: sectoral bargaining and corporatist or tri-partite boards or industry committees that would hash out wages, standards, benefits, or scheduling requirements on an industry level. Wage boards and industry committees are reminiscent of similar experiments in the garment industry of the early 20th century, WWII corporatist boards, and Puerto Rico’s garment industry from the 1950s-1970s. Kate Andrias, Ben Sachs, David Madland, and Cesar F. Rosado Marzan present sectoral bargaining as more in tune with 21st century economic structure and employment experience. One union cannot take on a whole industry, or as it turned out, not even a whole company. A sectoral bargaining approach could counter the managerial strategies of fissured employment, casualized work, and manipulation of classification (independent contractor, quasi-employee, permatemp) and transcend them by representing all workers in a sector. If all firms in the sector come under the contract agreement, it takes wages out of competition. It will extend representation and rights over a broader range of workers. Wage boards or other standard setting committees bring the state in to play the positive role in establishing wages and workplace standards for an entire sector or occupation. Hence, it carries out the state’s affirmative role in generating “democracy of opportunity” and “constitutional political economy.”
But corporate power and exploitation, of course, extend beyond the workplace and pervade the landscape. Thus, countering oligarchical power requires operating on other levels of scale. Bargaining for the Common Good (BCG), formally launched in 2014, is a strategy and a movement to release the confining trap door of mid-century collective bargaining—politically and ideologically. Workers who are unionized use their bargaining rights and contract negotiations to push for demands that extend to the community beyond the single workplace or firm. Unions, racial justice groups, and community organizations work together as partners to broaden the scope and impact of collective bargaining and redistribute corporate resources into the kinds of social investment and benefits alliance partners identify. It’s a tactical response to the state politics of austerity and tax limitation. Bargaining for the Common Good challenges corporate domination over unilateral community investment and disinvestment. BCG enrolls more stakeholders in the fight and thereby aims “to build long-term community labor power.” Therefore, “the campaign doesn’t end once the union settles its contracts,” taking care of its own members in narrow self-interest terms. The coalition made a pact to stay together to win on housing, medical care, schools, environmental justice and anti-toxicity, immigrants’ rights. Taking the offense requires directly challenging the agents extracting resources from communities and perpetuating repression, from banks to corporations to police.
BCG doesn’t exercise national power, of course (although there is a national network). What it is doing in practice, however, is building the security and stability, alliances, and capacities to challenge the elite stronghold on political power at higher levels. Common Good Network is now mapping a national index of union contracts and expiration dates to sync campaigns and strikes more broadly—to change the temporalities of previously fragmented and localized collective bargaining contracts and use them to leverage power. Taxing the rich and redistributing wealth is an explicit demand of the BCG network, which its partner organizations have been working for at the state level around the country as they attempt to counter the neoliberal imposition of risk on communities and individuals.
Other, distinct initiatives to exercise greater community power over local political economy have emerged, driven more by partnerships of architects, urban designers, Black developers, and community activists. These partnerships have recently formed in Chicago, Philadelphia, and Detroit to bring community groups and residents into major development projects, including Lincoln Yards and the Obama Presidential Library and the Philadelphia Navy Yards. Influenced by the pioneering work of LAANE (Los Angeles Center for a New Economy), they’ve turned to “community-benefits” agreements, focused on hiring guarantees, affordable housing targets or set-asides, educational programs, support for minority businesses. Community-benefits development should be an essential baseline. Yet whatever the degree of enforcement for these pacts, “community input” and “jobs” is woefully insufficient; it does not change the underlying foundation of power and control of resources.
Labor’s Enemies
Standing in the way of workers rebuilding unions and economic democracy are not only hostile employers but their eager and aggressive abettors, “union avoidance” law firms. Urging employers to wage all-out offensives against union drives and outspoken workers, these law firms are particularly skilled at subversion and intimidation tactics and even more fundamentally, severing race from class to bolster elite economic power.
Take Littler Mendelson, Ogletree Deakins, Morgan Lewis, and Proskauer Rose, for example, which have been counseling Starbucks, IKEA, Amazon.com, and media companies respectively in their anti-union battles. Each of these firms trumpet their firms’ deep commitment to “diversity and inclusion.” To quote Starbucks’ law firm, Littler Mendelson, the firm has a “culture that prioritizes inclusivity” as a “core principle we live by every day.” Ogletree Deakins strives continually for “a vibrant, diverse, and inclusive culture,” noting “we are committed to promoting a culture where open dialogue is encouraged, and people experience a sense of belonging and empowerment to help them achieve their full potential.” Morgan Lewis, extensively involved in Amazon’s aggressive anti-unionism, adds “wellness” to “diversity and inclusion” for its own employees. Clearly, wellness did not apply to the barrage of psych ops, captive audience meetings, bogus legal charges and arrests inflicted on Amazon workers in Alabama and Staten Island. Suppression of open dialogue and empowerment, especially for workers of color, is precisely the skilled service the firms sell to America’s top corporations and “nonprofit” institutions.
They’ve developed a strategy to perpetually detach diversity from questions of economic power. Proskauer Rose, LLP aids and abets our finest elite universities (Yale, Columbia, University of Chicago, Duke and Cornell, for example) in their hostile anti-union campaigns, ensuring academic labor continues its slide toward low-paying precarity. In addition to its proud commitments to diversity and “community,” Proskauer’s website also offers an inspiring section on its generous pro-bono activities to address “race and poverty,” “food insecurity,” and immigrant issues. It’s as if racial justice and equity are entirely unrelated to the corporations they defend. Poverty and food insecurity have nothing to do with their corporate clients’ practices of paying low wages, enacting injurious speed-ups, strategically deploying erratic scheduling, and punitively firing those who speak up. Or the racist effects of authoritarian management on Black and immigrant workers that lead to a culture of exclusion, fear and distrust, and punitive dismissals. Yet, the unionism that would make it possible for these workers to have a voice, counter their marginalization, challenge racism, and open paths for better opportunities is absolutely untenable. The firms actively solicit business with employers to aggressively trample and snuff them out and to sell employers a “diversity” of disempowerment. To realize the transition to a broad-based democracy of opportunity, those receiving law degrees will have to call out these “union avoidance” services as suppressing constitutional rights and obstructing an equitable constitutional political economy.
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As an historian, I’m usually looking back and taking stock. So, I’ll take the opportunity here of projecting forward and using the anti-oligarchy constitution as a foundation. The solidarity economy is a local economy that defends its public spaces without surveillance, reclaims its public services, builds community wealth by supporting worker and resident-owned and -directed enterprises, enhances people’s capabilities at whatever level of physical or cognitive ability, and builds new avenues for resident participation in democratic social and economic development. But the bridges to the solidarity economy free of oligarchical oppression and exploitation can be built anywhere and everywhere. They should include: unions; public land banks that work in conjunction with community benefits agreements; participatory budgeting; reconstructing our ability to speak in a public register about common good and public services; feminist recalibration of time and re-imaginings of family life, family care, and community care; and public utilities to reclaim our energy infrastructure.
The privatizers and for-profit companies have had the stretch of time from the 1990s until now to prove their promises or efficiency, innovation, and low prices. They have failed on all counts. Instead, Enron, Pacific Gas & Electric, Eversource in CT, and most of the privatized Texas grid have extorted profits and diverted them away from modernizing investment. They have shown they are utterly unprepared and disinclined to deal with the challenges of climate change and extreme weather. Under the constitutional political economy, the state absolutely must act to save our most fundamental living conditions. Then maybe we could all breathe and flourish.
For these and other reasons, I fully applaud the central idea behind the book. I also can’t help but say, though, “welcome to political economy,” since a generation of historians has been publishing work extensively in this very field for the past 15 or more years. That Fishkin and Forbath’s book cites a remarkably old-fashioned historical literature—from the 1970s/early 1980s, mostly, with a handful of exceptions of people whom they know and can’t leave out such as Nelson Lichtenstein—suggests we’re not really engaged in a cross-disciplinary endeavor. The University of Pennsylvania Press, Princeton Press, Harvard Press, and UNC Press have entire series of books published by historians in the last decade that are political economy. More pointedly, I’m rather astonished that Fishkin and Forbath leave out much relevant political economic work by women, such as Alice O’Connor, Alice Kessler-Harris, Dorothy Sue Cobble, Eileen Boris, Elizabeth Shermer, Meg Jacobs, Marissa Chapell, Kim Phillips-Fein, Gail Radford, Talitha LeFlouria, Annelise Orleck, Margaret O’Mara, Tami Friedman, and myself. With their attention to the relationship between productive and reproductive labor, home and work, and how citizenship discourse has obscured their interconnection, feminist historians fill the contours of constitutional citizenship. They have accounted for the perpetually mutating forms of offloading social risk onto women and people of color. Precisely because these scholars have written about labor in service sectors and households, they’ve explained the development of structural and ideological apparatus and the innovative resistance and empowerment strategies of the leading economic sectors of our own era. Certainly, “inclusion” ought to apply to the scholarship being read and reckoned with. That it hasn’t been taken up seems rather discouraging for our collective project; perhaps we can now take the steps to read each other’s work.
