Happy anniversary, right-to-work, but it's time to go

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Fifty years ago, the right-to-work movement in this country underwent a near-death experience. Organized labor and a powerful Democratic coalition during the Johnson administration joined in support of a bill to repeal Section 14(b) of the Taft-Hartley Act of 1947, a statutory provision which allows states to prohibit compulsory financial support to labor unions. President George Meany of the AFL-CIO viewed Section 14(b) as the major threat to the labor movement, and he made repeal his top legislative priority in 1964. President Johnson pledged in his 1965 State of the Union address to eliminate Section 14(b). Labor achieved a significant victory when the House passed H.R. 77, its version of repeal, by a 221–203 vote on July 28, 1965. The legislative effort came to an unsuccessful end in October when Sen. Everett Dirksen (R-Ill.) led a filibuster against the bill, and Senate Majority Leader Mike Mansfield (D-Mont.) had to withdraw the proposal.

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In the years following the resuscitation of 14(b), 25 states have adopted right-to-work laws, including, most recently, the industrial states of Michigan and Wisconsin. There is compelling evidence that right-to-work laws are driving union decline in this country. In turn, union decline is linked to rising inequality of wealth. Jared Bernstein, a well-known policy analyst, recently said that a first step in restoring bargaining power to workers would be to prevent states from enacting right-to-work laws. Given the existing environment, it is unlikely that a frontal assault on right-to-work could succeed. A more nuanced approach is needed to delete the noxious provision from federal labor policy.

During the Senate hearing on repeal, Reed Larson, then the executive vice president of the National Right to Work Committee, told the Senate committee that he represented the "grassroots of the Nation — the workers, the small business people, the professional people who understand and are concerned about the damage being done to our country by the excesses growing out of compulsory union membership." Larson's major theme concerned the liberty of workers to choose whether or not to support the goals of unions and workers' right to accept employment without interference from labor organizations. His real allegiance, however, was not to workers and their interests, but to a well-organized band of wealthy conservatives led by the Koch family of Larson's hometown of Wichita, Kan., who advocate a vision of smaller government, unregulated markets, and relentless opposition to the power of "Big Labor."

The current arguments in favor of right-to-work laws are the same as they were 50 years ago. Dirksen tirelessly pursued the case that right-to-work protected the liberty of individual workers from coercive union power. The accompanying economic argument was that the laws led to development and created jobs and greater income for workers. The first argument is intellectually fatuous, and the second is false. In America, an individual's rights are always conditioned by the rights of others with which they collide, such as the baker in Denver who unlawfully refused to bake a wedding cake for a same-sex couple because he had religious scruples against it. Regarding the purported developmental benefits of right-to-work, the claim has been debunked by numerous studies, including recent work by Gordon Lafer and Sylvia Allegretto of the Economic Policy Institute.

Despite the falsity of its claims and the damage it does to workers, right-to-work marches on with the aid of well-financed campaigns. Politicians like Gov. Scott Walker (R-Wis.) bow and scrape at the altar of corporate wealth, and any legislation attempting to curb the power of capital faces long odds. The best chance of repeal combines a joint federal-state strategy with meaningful consequences for politicians who refuse to support a repeal bill.

Many right-to-work states allow ballot initiatives as part of the political process. In Colorado in 2008, a member of the Coors family brought forward an initiative to make the state a right-to-work jurisdiction. Organized labor responded with its own initiative protecting workers against termination without just cause, removing the exclusive remedy provisions of the workers' compensation law, and mandating compulsory healthcare for employees. The business community was so terrified by the proposals that they agreed to oppose right-to-work in exchange for removal of the union initiative.

The same idea could work nationally. If a courageous legislator introduced a repeal bill into Congress, unions could demand that their federal representatives support the bill or risk the enactment of state laws protecting workers against arbitrary termination. Voters dissatisfied with their declining wages, the ineptitude of federal lawmakers and the degradation of working conditions in this country, likely would support that measure. Faced with reforming labor law to create a level playing field among states or more onerous legislation, politicians might choose the less painful option.

Hogler is professor of labor law, labor relations and human resource management at Colorado State University.

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