Today I attended a really stimulating panel discussion (to watch it, scroll to bottom) about Why Labor Organizing Should Be A Civil Right, a new Century Foundation book by Richard D. Kahlenberg and Moshe Z. Marvit. The idea (originally dreamed up by onetime New Republic staffer Thomas Geoghegan, who wrote the introduction) is this. Right now it's against the law to fire anyone for trying to start a union, but the penalties, under existing law, are so puny that bosses routinely do it anyway. Labor law in general is statutorily weak (thanks largely to the 1947 Taft-Hartley Act) and all efforts to strengthen it during the past half-century have failed. Not even Lyndon Johnson could do it in the mid-1960s, when Great Society liberalism was in full flower. On top of that, people don't seem to care much anymore about unions, at this point presumably because they can't remember what they were (at least in the private sector).
So why not, Kahlenberg and Marvit propose, extend civil rights protection to those who join or create a union? The track record for civil rights during the past half-century is much more impressive than the track record for labor rights, and the penalties under the Civil Rights Act are much more severe than the penalties under the Wagner Act. You can haul your oppressor into federal court, submit him (or her) to discovery, and receive substantial monetary damages. It's actually possible to imagine that, if the protections available under the Civil Rights Act were thus extended, bosses might be afraid to fire union troublemakers. On top of that, Kahlenberg notes, the public supports civil rights. Children are taught about civil rights in school. It's something people recognize as affecting real people as opposed to labor law, which is seen as affecting some poorly-understood interest group called "labor."
It's a very promising idea, and the discussion, moderated by Washington Post columnist and American Prospect editor-at-large Harold Meyerson, was lively and informative. But even though I support the proposal (I mention it favorably in my forthcoming book on income inequality) I found myself, as I watched the presentation, thinking dark thoughts. "This will never fly," I thought. "They'll never allow it." The they I had in mind, curiously, was not congressional Republicans (who would do everything they could to block it) but the Supreme Court.
This was not a particularly rational train of thought. When I asked the lawyers on the panel whether there was any constitutional obstacle to protecting union membership under civil rights law, the answer I got was no. My rational mind said: OK then. My irrational mind said: But that's what they said about Obamacare! And then I flashed back to last week's oral arguments in the Supreme Court, wherein one conservative justice after another picked away bit by bit at the notion that reliable access to health care would be something any American might need. I imagined Justices Scalia, Alito, Thomas, Roberts, and Kennedy hovering about the U.S. Capitol like the black-robed dementors in the Harry Potter books, sucking souls from the bodies of Democrats and strewing icicles across the dome as every cherry blossom in sight withered to dust.
I was suffering from Post-Supremes Stress Disorder.
I wonder how many other liberals this week briefly contemplated changing the world in one small way or another, only to succumb to PSSD and think, "Naw, screw it. Those five bullies would find some frivolous reason or other to kill it." And the Supreme Court hasn't even ruled on Obamacare yet! If I'm not over this in a week or two I'll take it up with my doctor.
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