Organized labor's fears were realized Tuesday when Republicans won a decisive majority in the House, almost eviscerated the Democrat majority in the Senate and picked up eight governorships (with four undecided as of this writing). Was this a triumph of corporate interests, as some on the left might suggest? Hardly.
Ironically, the same Democrats who railed against the Supreme Court's Citizens United decision--which struck down the parts of the McCain-Feingold campaign finance legislation that limited how much unions and corporations could spend on political campaigns--are the ones receiving the greatest benefit. The biggest spenders this election cycle were public sector unions, giving almost exclusively to Democrats.
The American Federation of State, County and Municipal Employees alone spent $91 million on the 2010 midterm election, making it the largest single campaign donor this cycle. As The Wall Street Journal reported, "Freed to spend their own funds, AFSCME, the SEIU, and the National Education Association have spent $171.5 million, compared to political outlays of $140 million by the U.S. Chamber of Commerce, American Crossroads and Crossroads GOP." Big Labor helped Democrats narrowly hold on to the Senate and bail out Senate Majority Leader Harry Reid. As Matt Patterson, senior editor at the Capital Research Center notes, "SEIU alone … allocated $725,000 to help ensure Reid's return to the United States Senate."
However, for Big Labor, the legislative damage is done. The makeup of the new Congress will make it much more difficult for its agenda to make any headway. This is good news for the American economy, especially struggling businesses and workers who do not wish to join unions. Yet that doesn't mean that unions are about to go quietly into the night. Yet Democrats can still pay back their union supporters, both through non-legislative means and last-ditch lame duck legislation.
The deceptively named Employee Free Choice Act (EFCA) remains at the top of the union agenda. It failed to become law when Democrats controlled both houses of Congress and the White House, so its chances of gaining any traction in its current form are nil. Yet President Obama may still enact some of EFCA's key provisions through the National Labor Relations Board (NLRB,). Obama NLRB recess-appointee Craig Becker, a former SEIU associate counsel, has written that employers should have no say in the organizing process, so it's very likely he would support such changes.
One possibility is enacting EFCA's card check provision through regulation. Card check would in effect eliminate secret ballots in union organizing elections. The NLRB is now considering allowing remote electronic voting (E-Voting), which would allow voting in union organizing elections to be done via phone or the Internet. The NLRB says it wants to keep the voting secret but it would not be hard for a union organizer using a laptop or iPad to pressure an individual worker to vote for the union. Allegations of mail fraud and voter intimidation were rampant in a recent inter-union remote mail election fight in California last month. E-Voting could lead to similar intimidation.
The NLRB is also considering expedited elections, which essentially would function as ambush elections. Employers would have very little time to respond to union organizing campaigns, which gives the union a significant advantage.
In addition, the NLRB recently decided to revisit its 2007 Dana Corp. decision, which affirmed employees' right to call for a secret-ballot decertification election in instances where a union has been certified through card check.
During the lame duck session, the main Big Labor priority to watch out for is a union pension bailout. Introduced in the House (Create Jobs and Save Benefits Act, H.R. 3936) by Rep. Earl Pomeroy (D-N.D.) and in the Senate (Create Jobs and Save Benefits Act, S. 3157) by Rep. Robert Casey (D-Penn.), this legislation would create a new fund within the Pension Benefit Guaranty Corporation (PBGC), through which it would direct taxpayer dollars to shore up some underfunded union pension plans. The use of public funds to insure private pension plans is a first for PBGC and stark departure from the way it has operated since its creation in 1974.
Earl Pomeroy lost his reelection bid, which makes the prospects for his legislation dim. However, just because unions lost one champion of this legislation does not mean they cannot find another. Pomeroy was an odd sponsor of such legislation anyway; unions are not exactly political powerhouses in North Dakota, which is a right to work state.
Still, given enough support from the national Big Labor establishment, another unlikely lawmaker could take this up. In addition, Pomeroy himself could try to push this legislation during the lame duck session, which could gain him favor with the Obama administration--and its major labor supporters--and improve his chances for an executive appointment. Like Pomeroy, Big Labor may be down, but it is hardly out.