Organized Labor's Exhausted Paradigm

by the Sandwichman

On the Relentlessly Progressive Economics blog, Andrew Jackson, Chief Economist and National Director of Social and Economic Policy for the Canadian Labour Congress, approvingly cited a policy paper, "America's Exhausted Paradigm: Macroeconomic Causes of the Financial Crisis and Great Recession," written for the New America Foundation by Thomas Palley, former Assistant Director of Public Policy at the AFL-CIO.

At page 11, the Sandwichman threw up his hands in despair:

"The implementation of neo-liberal economic policies destroyed the stable virtuous circle growth model based on full employment and wages tied to productivity growth, replacing it with the current growth model based on rising indebtedness and asset price inflation."

Just what "stable virtuous circle" did Brother Dr. Palley have in mind?
Why the 1945-1980 Golden Age, of course. And just how does Dr. Palley envisage restoring that lost paradise?

"...restoration of worker bargaining power in labor markets through strengthened unions, a higher minimum wage, and stronger employee protections; restoration of full employment as a macroeconomic policy objective; restoration of the legitimacy of regulation and increased government provision of public goods; a new international economic accord that addresses the triple hemorrhage problem created by the flawed model of global economic engagement; and reform of financial markets and corporate governance that ensures markets and corporations work to promote national economic well-being."

There's just one catch: "While the economics are clear, the politics are difficult..."

Politics are always difficult. The Sandwichman doesn't think that's the problem with Palley's "clear economic" prescription, though. The problem with Palley's paradigm is that its politics are absent. I want to draw attention to the first two planks in the platform to illustrate what I mean: strengthened unions and a higher minimum wage. Both sound appealing to a left perspective. But do they go together?

Samuel Gompers didn't think so. Here's what he had to say about minimum wage legislation in 1914: "I am very suspicious of the activities of governmental agencies. I apprehend that once the state is allowed to fix a minimum rate, the state would also take the right to compel men or women to work at that rate." The rationale for Gompers's opposition to minimum wage legislation -- although not to minimum wages won by collective struggle -- was a philosophy based on collective self-determination and action.

Now I don't want to give the impression I think old Sam Gompers was a saint or always knew what was best for workers. He wasn't and he didn't. But there was a principle and logic larger than Gompers that played itself out in the first four decades of the 20th century that Sandwichman thinks has crucial bearing on the exhausted paradigms of macroeconomics and organized labor.

The Sandwichman drones on endlessly about the eclipse of the shorter working time ethic in the unions and the slander and taboo on the topic in economics. But let's forget about that for a moment and consider Supreme Court decisions and constitutional law. Allison Martens wrote a fascinating paper a few years ago titled, "Parrying with the Courts: Analyzing the Lochner Era through the Eyes of Organized Labor." I don't pretend to know much about US constitutional law myself, nor will I attempt to summarize Martens's argument here. I just want to call attention to a key switch in American Federation of Labor legal strategy that Martens highlighted in the paper and that was discussed earlier in a paper by James Gray Pope, "The Thirteenth Amendment Versus the Commerce Clause: Labor and the Shaping of the Post-New Deal Constitutional Order, 1921-1957."

Forgive me for quoting four paragraphs from the conclusion to Pope's article. The drama and the importance of what Pope is chronicling inhibits me from summarizing or paraphrasing:

"On the eve of the New Deal constitutional revolution, proponents of national labor legislation faced the momentous choice whether to ground their legislation on the Commerce Clause or on the Thirteenth Amendment. Since the early 1900s, the labor movement had claimed the rights to organize and strike under the Thirteenth Amendment. Labor constitutionalists argued that these rights were essential for workers to exercise actual liberty of contract in an industrial economy dominated by large corporations. By the early 1930s, this core theory had won wide acceptance, and legislators routinely echoed labor's claim that restrictions on worker self-organization and protest amounted to slavery and involuntary servitude.

"But labor's constitutionalists encountered stubborn opposition from the movement's own friends within the legal profession. During the campaign for anti-injunction legislation that culminated in the passage of the Norris-LaGuardia Act of 1932, a group of elite, progressive lawyers led by Professor Felix Frankfurter undercut labor's constitutional claims by refusing to acknowledge their existence in public while maneuvering behind the scenes to exclude them from legislative consideration. Their determined opposition to labor's freedom claims reflected not a tactical disagreement among allies, but a fundamental conflict over long-term, constitutional goals. While labor constitutionalists sought power for unions and workers, progressive lawyers sought power for social scientists and other professionals, including themselves. Over a period of six years, this cagey and well-connected opposition wore down labor's constitutional leaders. In the winter of 1931–1932, when presented with what appeared to be a choice between insisting on their constitutional theory of freedom and achieving anti-injunction legislation in the here and now, labor leaders chose the latter. Two years later, when Senator Robert Wagner proposed his labor disputes bill, unionists sought a constitutional foundation sounding in democracy and human rights, but again failed to force the issue.

"The result was to sever the popular demands for industrial freedom from the legal-professional campaign to validate the Wagner Act. Unionists embraced the Wagner Act as labor's latest 'Magna Charta' and declared that if the courts would not enforce it, the workers would. In his 1936 reelection drive, President Roosevelt campaigned against economic royalism and for industrial freedom, apparently endorsing the core of labor's theory. Roosevelt's landslide victory emboldened workers to stage full-blown factory occupations to enforce what they saw as their constitutional rights to organize and strike. The factory occupations, in turn, forced the Supreme Court to uphold the Wagner Act—a victory that workers across the country promptly celebrated as a 'new era' of industrial freedom.

"Meanwhile, however, government lawyers had been urging the courts to uphold the Wagner Act not as a human rights statute, but as an exercise of Congress's power to 'control' and 'punish' strikes under the Commerce Clause. And it was this view, not the popular vision of the statute as a human rights measure, that the Supreme Court embraced in the Wagner Act decisions. The Court did leave open the possibility that collective labor rights might be constitutionally protected, and—for a time during the 1940s—workers and unions won a number of decisions protecting the rights to organize, strike, boycott, and picket. But by the mid 1950s, labor's constitutional victories had been appropriated by others. Under the leadership of Justice Felix Frankfurter, the Supreme Court upheld a battery of restrictive labor laws. By the time the Court was finished, the new civil liberties won by unions and workers had been reshaped into a doctrine that, as Robert McCloskey famously put it, had the 'smell of the lamp about it.' The Constitution, it seemed, protected reasoned discussion about ideas, not appeals to labor solidarity. In class terms, then, the constitutional revolution of the 1930s represented the triumph within constitutional jurisprudence of what might be called the 'knowledge class' over the previously dominant business class. The role of the working class was to provide the foot soldiers for change."

I guess one could say that Palley's economic prescription, too, has something of "the smell of the lamp about it." Or, to quote Sam Gompers one last time:

"Be not deceived by any specious sympathy and guileful interest in your welfare, but like men and women work out your own problems and determine your own lives. Benefits, improvements gained by the power of collective action may be slower, but they do not menace future welfare they do not transfer to others control over future activity, policies, or methods. Self-help leads to independence, reliance, and true welfare."