Is the Conservative Case for Organized Labor an Oxymoron?

This article first appeared on In These Times.

Oren Cass — con­ser­v­a­tive pol­i­cy wonk, 2012 Mitt Rom­ney advi­sor and exec­u­tive direc­tor of the new think tank Amer­i­can Com­pass (which does not dis­close its donors) — is a sur­pris­ing can­di­date for labor law reformer. That is exact­ly why his recent­ly launched project to build and define a ​“Con­ser­v­a­tive Future for the Amer­i­can Labor Move­ment” is draw­ing so much attention. 

In a found­ing state­ment titled ​“Con­ser­v­a­tives Should Ensure Work­ers a Seat at the Table,” the group argues that orga­nized labor can improve eco­nom­ic pros­per­i­ty and strength­en com­mu­ni­ties, all while main­tain­ing lim­it­ed gov­ern­ment. The state­ment is signed by Cass, Mar­co Rubio, Jeff Ses­sions and oth­er fig­ures on the right. As you might imag­ine, the dev­il of this labor reform project is in the details. 

We spoke to Cass about sec­toral bar­gain­ing, labor mil­i­tan­cy, and the polit­i­cal real­i­ties of con­vinc­ing Repub­li­cans that unions deserve to exist. 

What made you decide that now was the time to launch this effort to save orga­nized labor? 

Oren Cass: It fits gen­er­al­ly with the broad­er focus of Amer­i­can Com­pass, which is to ask, ​“What has gone wrong in our econ­o­my which is lead­ing to poor out­comes for many peo­ple? And what would a gen­uine­ly con­ser­v­a­tive response look like?” My view is, what we call con­ser­v­a­tive eco­nom­ic pol­i­cy in Amer­i­ca is not con­ser­v­a­tive in any mean­ing­ful sense of the word, it’s lib­er­tar­i­an. It’s a func­tion of the Rea­gan coali­tion in which eco­nom­ic lib­er­tar­i­ans did the eco­nom­ic pol­i­cy, and social con­ser­v­a­tives did the social pol­i­cy. But if you think about the mar­ket fun­da­men­tal­ism that dom­i­nates right of cen­ter think­ing, it’s in many ways the antithe­sis of con­ser­vatism. It puts fair­ly blind faith in a mar­ket, with­out any ref­er­ence to the rules around the mar­ket, insti­tu­tions sup­port­ing the mar­ket, with­out con­cern for social struc­tures or the social fab­ric. We’ve real­ly been miss­ing a gen­uine­ly con­ser­v­a­tive per­spec­tive that asks, ​“How do we ensure that the mar­ket is one that is actu­al­ly deliv­er­ing the out­comes that we want for healthy fam­i­lies, and com­mu­ni­ties, and the strength and sol­i­dar­i­ty of the nation?” 

One of the places that strikes me as a huge oppor­tu­ni­ty that has been over­looked, if not out­right den­i­grat­ed, by the lib­er­tar­i­an per­spec­tive is this idea that, look, orga­nized labor is a great thing — that unions as they are oper­at­ing in Amer­i­ca today are dys­func­tion­al in many ways, but the idea that we should want work­ers to be able to act col­lec­tive­ly… is all to the good. That’s exact­ly the for­mu­la for a well func­tion­ing mar­ket economy. 

How do you dis­tin­guish what you call the con­ser­v­a­tive per­spec­tive on this issue from the lib­er­al (non-social­ist) perspective? 

Cass: If we talk about tra­di­tion­al lib­er­als, I think in many ways there’s a lot of shared ground with respect to the out­comes we want. The major point of depar­ture is on two ques­tions: One, how good are mar­kets at doing things rel­a­tive to how good is gov­ern­ment at doing them? My view at least is that mar­kets are quite effec­tive and pow­er­ful, and the role that we want for gov­ern­ment is in fig­ur­ing out what kind of con­di­tions we need to cre­ate to chan­nel that pow­er in the right direc­tion. Where­as the left of cen­ter view, I think, tends to be more, if we’re not hap­py with what a market’s doing, we will just tell it some­thing else. Sec­ond­ly and relat­ed­ly, I think there is a very dif­fer­ent view of the role that redis­tri­b­u­tion can play. I think the lib­er­al view tends to be, we can pro­vide to who­ev­er has been left behind, where­as the con­ser­v­a­tive view is that that’s actu­al­ly not a good answer — that a gov­ern­ment check is not a sub­sti­tute for a paycheck. 

You were a Mitt Rom­ney advi­sor in 2012. Have your views on these issues changed a lot since then? This doesn’t sound like the Rom­ney labor plat­form.

Cass: I don’t think my views have nec­es­sar­i­ly changed very much. If we were to talk about spe­cif­ic ques­tions like sec­toral bar­gain­ing, [that] is some­thing I’ve become much more inter­est­ed in over the past year or two, after writ­ing in my book that that was exact­ly the wrong way to do labor reform… But in terms of the big­ger pic­ture ques­tion of what should the goals of eco­nom­ic pol­i­cy be and what should the levers be, I would say my instincts have always been in this direc­tion, and as I’ve had the oppor­tu­ni­ty to do more research and work on it I’ve been able to flesh out more of the ratio­nale for that, and what it might mean to give it shape in the real world.

You talk in your state­ment about sub­sti­tut­ing col­lec­tive bar­gain­ing for employ­ment reg­u­la­tions, rather than hav­ing both as we do now. How do you take away those work­place reg­u­la­tions with­out expos­ing work­ing peo­ple to per­ilous dan­ger in the process? 

Cass: I don’t think you take them away, I think you shift them from a base­line to a default. The way the sys­tem we have today works is that every­thing estab­lished in employ­ment law is a non-nego­tiable start­ing point, and if you union­ize or are oth­er­wise bar­gain­ing with employ­ers, the entire pur­pose of the exer­cise is to think of new things to add on top of that. But of course, the whole ratio­nale for need­ing such a robust régime of employ­ment reg­u­la­tion is that indi­vid­ual work­ers with­out col­lec­tive rep­re­sen­ta­tion don’t have the abil­i­ty to safe­guard their inter­ests very effec­tive­ly. So at the point where you do have work­ers orga­nized and bar­gain­ing col­lec­tive­ly, it seems to me they can just say, we’re adopt­ing as much of the employ­ment reg­u­la­tion as we want. They don’t have to agree to any­thing. When you think about the scope for bar­gain­ing an agree­ment that you could con­sid­er — hav­ing most, not all, of exist­ing reg­u­la­tion on the table I think is a real­ly attrac­tive arrange­ment. I think it’s attrac­tive for work­ers, because there’s no short­age of reg­u­la­tion that they don’t val­ue that highly…

And like­wise from the employ­er per­spec­tive, this changes the prospect of col­lec­tive bar­gain­ing from ​“the worst thing imag­in­able” to some­thing that could actu­al­ly have some upside. 

It seems to me that that arrange­ment would by neces­si­ty require work­ers to have a bal­ance of pow­er with employ­ers they’re bar­gain­ing with. Do you sup­port a robust right to strike as part of that? 

Cass: I do think there should be a right to strike, but I think if you shift to a sec­toral bar­gain­ing con­cept then that becomes a very dif­fer­ent ques­tion. Because this adver­sar­i­al bar­gain­ing isn’t going to be hap­pen­ing between the work­ers and employ­ers at a sin­gle firm, it’s going to be hap­pen­ing at the sec­toral lev­el. Do you get sec­tor-wide strikes in sec­toral bar­gain­ing? Yes, it does hap­pen, but I think you tend to see a lot less labor strife in that context. 

What is the work­ers’ lever­age, even in sec­toral bar­gain­ing, besides the right to with­hold their labor? Par­tic­u­lar­ly if you are sug­gest­ing that employ­ment reg­u­la­tions should be on the table.

Cass: That is one form of lever­age they have, but there are a bunch [of oth­ers] that I think are more close­ly con­nect­ed to the role that you have gov­ern­ment play­ing in a sec­toral bar­gain­ing sys­tem. If the fall­back if no agree­ment is reached is not ​“employ­er does what­ev­er it wants,” it’s essen­tial­ly bar­gain­ing is imposed, that’s obvi­ous­ly one fall­back… Anoth­er thing that tends to play a role is, par­tic­u­lar­ly when you have a sec­toral sys­tem, unions are actu­al­ly doing oth­er things that are con­struc­tive. For exam­ple, unions are typ­i­cal­ly play­ing a much more assertive role in train­ing. There are more facets to that part­ner­ship that are also at risk if no agree­ment is reached. 

I know some labor lead­ers who would say that the fact that a per­son like you is advo­cat­ing for sec­toral bar­gain­ing is proof of the draw­back of sec­toral bar­gain­ing — that it is a way to sap mil­i­tan­cy out of the labor move­ment. What do you say to that? 

Cass: I see that atti­tude as encap­su­lat­ing per­fect­ly how the left has man­aged to total­ly sab­o­tage the labor move­ment in recent decades, which is to try to use it as a tool of par­ti­san or rad­i­cal left­ist pri­or­i­ties, rather than a tool that’s actu­al­ly going to improve things for work­ers. If you think we’re real­ly on the cusp of suc­cess for a mil­i­tant labor move­ment in this coun­try, then I don’t know where you’ve been, but that’s obvi­ous­ly not the direc­tion where this is head­ed. To the con­trary, the labor move­ment is slow­ly dying out of its own dys­func­tion inter­nal­ly, and its own poor design in the statu­to­ry frame­work it’s oper­at­ing under. Now, my equal frus­tra­tion is with those on the right of cen­ter who say ​“huz­zah,” and stand aside and shrug or grin as this hap­pens. To come from the right of cen­ter and say, let’s not have this thing die out, let’s find a way to have a labor move­ment that works, and achieves valu­able things for work­ers, is not a plot to defang a mil­i­tan­cy that does not exist and has no prospect. That would be a waste of effort. 

When you talk about the labor move­ment being too par­ti­san — what choice do they have? The plat­form of the Repub­li­can Par­ty is to wipe them off the face of the earth. 

Cass: If you go back and look at the his­to­ry, there’s plen­ty of blame to go around… Dwight Eisen­how­er went to the AFL to cam­paign for their votes in the 50s. Nixon fet­ed labor lead­ers at the White House. The AFL-CIO did not endorse McGov­ern in ​‘72. Samuel Gom­pers had polit­i­cal non­par­ti­san­ship as a core prin­ci­ple of orga­niz­ing. If you fast for­ward to the ​‘90s, when Newt Gin­grich was Speak­er, those more pro-labor rep­re­sen­ta­tives in the Repub­li­can Par­ty were ulti­mate­ly aban­doned by the unions, and in turn aban­doned the unions. So it seems to me that it’s sort of a piece of the broad­er sto­ry of polar­iza­tion in our pol­i­tics. I guess if you want­ed to have a strat­e­gy of reclaim­ing a strong and mil­i­tant labor move­ment under the Wag­n­er Act you would be wel­come to try, but I’m not aware of any­one oth­er than those whose job it is to say that’s a good idea who thinks that’s a good or plau­si­ble idea. 

Let me ask you about the polit­i­cal real­i­ty of these issues. I don’t see any space in the Repub­li­can Par­ty of today for what you’re advo­cat­ing. Am I wrong about that? 

Cass: I think you’re wrong. That’s part­ly why we start­ed with this state­ment, which I think showed an inter­est­ing range of rep­re­sen­ta­tives… What I found on the Hill in par­tic­u­lar, with folks in the House and the Sen­ate, is that the over­whelm­ing response was, ​“This is real­ly inter­est­ing, but not some­thing we’ve ever thought about enough.” There’s not a sin­gle per­son we talked to where the response was, ​“No, I don’t agree.” 

We’re at the point where there are a lot of peo­ple inter­est­ed in this dis­cus­sion. I can’t promise you we’re going to suc­ceed, but I think that a year from now we will have a much broad­er coali­tion that says, actu­al­ly now I under­stand this, and this is some­thing we should be push­ing for­ward on. 

What do you think the leg­isla­tive first step would be down this path? 

Cass: Prob­a­bly to find some par­tic­u­lar places where it would make sense to try some­thing like this. One would be to pick a top­ic, like min­i­mum wage, where I think all sides would be hap­pi­er than the sta­tus quo by say­ing, min­i­mum wage should real­ly be set through more of a sec­toral­ly bar­gained or wage board type mod­el. On a lot of these things the fed­er­al gov­ern­ment can’t do more than set up a frame­work, but here is a mod­el that states and local­i­ties and who­ev­er else could work from. 

Anoth­er pos­si­bil­i­ty is a par­tic­u­lar sec­tor. There obvi­ous­ly are a num­ber of sec­tors that are exclud­ed from the [Nation­al Labor Rela­tions Act], part­ly for dis­crim­i­na­to­ry and part­ly for prac­ti­cal rea­sons. You could start in either the agri­cul­tur­al or domes­tic ser­vice or gig sec­tor and say hey, let’s actu­al­ly imple­ment this here. That’s an approach that could have promise. And a third one is to do it region­al­ly and say, we’re going to offer waivers from the NLRA to some state that wants to come for­ward and try a dif­fer­ent framework. 

What do you think will hap­pen if no agree­ment like this for the future of labor is reached, and cur­rent trends continue? 

Cass: Unfor­tu­nate­ly trends can con­tin­ue for a very long time. Every­thing has break­ing points even­tu­al­ly. I don’t think any­one can very effec­tive­ly pre­dict where any sort of mean­ing­ful break­ing point would occur. So I think the best bet in the absence of reform is that, dur­ing the near to medi­um terms, things just sort of con­tin­ue… to con­cen­trate the gains towards a small num­ber of win­ners, and then you have an awful lot of folks who don’t get to share in those gains, and who strug­gle in a lot of ways.