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Abandoning Card Check

July 17, 2009 - by Donny Shaw

The New York Times this morning reported that the Democrats are dropping the card-check provision from the Employee Free Choice Act (EFCA) in an attempt to jump-start the stalled bill.

EFCA has always had three main provisions – card-check, binding arbitration and increased fines for employers who violate their employees’ right to unionize – but card check was pretty much the only one anyone ever talked about. EFCA and the “card-check bill” were basically interchangeable. The card-check provision would make it easier for workers to unionize by giving them the power decide whether to hold a secret ballot vote on union formation after a majority of employees have signed union authorization cards, or to have the union certified based on the cards alone. Under the current rules, employers have the power to make that decision.

Republicans still oppose EFCA without card-check, but with just binding arbitration and the increased fines, the bill is much more likely to win the support of crucial moderate Democrats in the Senate. Still no guarantee, but dropping card check is a big help.

The question I have is, was card check ever the goal of the bill and its backers, or was it put in the bill to serve as a strategic far-left proposal that could be removed, leaving behind an instant “compromise”? A reader at TPM wrote in to say it was the latter:

Michael Fox, a labor attorney and blogger, says that card check has always just been a stalking horse for the other planks of EFCA. In fact, what gives angst to some conservative legal scholars more than the card check is the forced arbitration. Someone wrote an article (it was in the WSJ, I think) that the arbitration provision would be unconstitutional. The quickie elections are important to. I don’t agree with “stalking horse” exactly. To me it was more of a bargaining chip they were willing to sacrifice if needed.

To my mind, this clasic legislative strategy. I’m always surprised it doesn’t happen more often. On health care, for example, if Democrats had pushed hard from the get-go for a national single-payer plan, the public option might not be at risk of being replaced by a private co-op or a trigger. The public option would look like the center-right alternative and would probably would not be the target of House Blue Dogs and conservative Senate Democrats.

Perhaps labor has more experience dealing with Congress than the health care reform crowd, or perhaps they really have been thinking that the card check provisions could become law. Andy Stern of SEIU is still claiming that this is part of the “usual legislative process” and that card check will be put back into the bill on the Senate floor or in the conference committee.

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