Walker Draft
Comparative Analysis of Labor Law Reform under the Carter, Clinton, and Obama Administrations
Marquita Walker
Indiana University Purdue University at Indianapolis
Major labor law reform in the United States has not taken place since 1959 with the passage of the Landrum-Griffin Act.Two distinct opportunities for passage of major labor law reform took place in 1977 during the Carter Administration and in 1992 under the Clinton Administration. Each piece of legislation would have strengthened worker’s rights to collectively bargain against powerful employers, yet under a Democratically-controlled Congress and Senate, neither of these pieces of legislation was passed. There currently is another major piece of labor law legislation being debated on Capitol Hill known as the Employee Free Choice Act (EMFA). The fate of the EFCA lies in the hands of theDemocratically-controlled 111th Congress and Democratic President, Barack Obama. This is an historic opportunity for organized labor and workers to once again strengthen worker’s ability to collectively bargain and arrive at a first contract. This paper is a comparative analysis of three opportunitiesand two subsequent failures since 1959 for labor law reform in the United States. To make this comparative analysis, I will focus on three components: presidential interest in labor law reform, the presidential relationship with the Congress, and the presidential relationship with the AFL-CIO and left-leaning unions. The merger of these three components impacts the success of labor law reform. I will suggest that if certain conditions exist in the upcoming 111thCongress, labor law reform, in the shape of the EFCA, has a good chance of becoming law.
Comparative Analysis of Labor Law Reform: The Carter Administration
Carter’s interest in labor law reform
Jimmy Carter came into office with the deck stacked against him. A Washington outsider, who really cared little for politics, Carter’s top priorities were a rapid reduction in unemployment, a curb on inflation without continued recession, more efficient budgeting, better coordination between fiscal and monetary policy, and more efficient and better government planning and management. Unemployment was at 8%, the country was coming out of a recession, and there were 7.5 million American unemployed with 1.4 million underemployed. [1]Carter’s plan to facilitate these priorities was to restore a sound economic and domestic policy which focused on job creation, but upon entering the Oval Office, Carter faced a recession, high energy prices and stagflation. Rising Middle East oil prices, double-digit inflation, and the hostage situation in Iran in which American hostages were taken by Moslem fundamentalists dominated Carter’s agenda. Carter’s attemptat reform and social justice was to resuscitate a dying New Deal coalition, but his effortsfaded in the face of Congressional power diffusion and sectionalism. One of Carter’s efforts, strongly encouraged by the AFL-CIO, was to pass some form of labor law legislation.[2] There had been a 42 year lapse since the passage of the Wagner Act, and as Carter stated:
The purpose of this [proposed] legislation is to make the laws which govern labor-management relations work more efficiently, quickly and equitably and to ensure that our labor laws fulfill the promise made to employees and employers…that working men and women who wish to bargain collectively with their employers, in a fair way to both, shall have a reasonable and prompt chance to do so("Action In Congress On 'Labor Reform' Proposals," 1978).
This major piece of labor law proposal took the form of H.R. 8410 [3] and was sponsored by Representative Frank Thompson, Jr., a Democrat from New Jersey and Chairman of the House Subcommittee on Labor-Management Relations. The bill was introduced on July 19, 1977. An identical bill, S. 1883, was introduced in the Senate by Senators Harrison A. Williams, Democrat from New Jersey and Jacob R. Javits, Republican fromNew York. [4]The bill was reintroduced by Senators Williams and Javitsin 1978 as S. 2467. [5]The full Committee on Education and Labor ordered H.R. 8410, as amended, reported favorably to the House of Representatives on September 22, 1977. After three more days of debate, the bill was passed by a 257-163 vote ("Action In Congress On 'Labor Reform' Proposals," 1978)[6]. There were 36 Republicans who voted for the bill, and 59 Democrats who voted against the bill. [7] S. 2467 went down in defeat by two votes after a filibuster lead by Senator Orin Hatch, a new Republican Senator from Ohio and Senator Richard Lugar, a Republican from Indiana. [8]
There were several complications which may have played a role or at least set the stage for the defeat of S.2467 on July 15, 1978. Carter and Senate Majority Robert Byrd delayed the vote on labor law reform in order to seek ratification on the Panama Canal Treaty. [9]Consequently, the business lobby had more time to mobilize it forces to defeat the bill. Plusthe delayed timing of the labor law reform bill’s vote meant that Carter had spent some of his political capital with liberal voters on the Panama Canal bill. To complicate the picture, a major strike by the United Mine Workers began on December 6, 1977 and evolved into a national bituminous coal strike which lasted for 110 days. [10]In response to the job loss of the late 1970s, Herbert Humphrey, Democrat from Minnesota and Congressman Augustus Hawkins, Democrat from California, proposed the Full Employment and Balanced Growth Act. This legislation set specific goals and requirements for the federal government in the areas of employment, production growth, price stability, and balance in trade and budget. Carter signed the legislation into law on October 27, 1978. [11]
There was some movement on labor law legislation during the first two years of the Carter administration. A bill to increase the minimum wage passed raising the minimum wage to $2. 65 per hour in 1978 with incremental increases for the next three years.[12] Also a bill to legalize “common situs” picketing, which would have allowed striking construction workers to picket other subcontractors at the same construction site, was defeated in the House by a vote of 217 to 205. [13] Carter did support an extension of the Comprehensive Employment and Training Act (CETA).[14] His most notable achievement was passage of the Mine Safety and Health Amendments Act of 1977 and House Bill 4544, the Black Lung Benefits Act of 1977. [15] But Carter’s efforts to create jobs, balance the budget, and cut government spending had disastrous results with increases in inflation and the loss of 1.8 million jobs(Bruno, 1998).
The question looms large as to why a Democratically-controlled House and Senate under a Democratic President were not able to marshal enough votes to pass labor law reform. I suggest there were two distinct reasons for the failure of this labor law reform: the ideological make up of the Democratic majorities and the political and economic environment in which the legislation was proposed. I deal with each of these reasons more explicitly by placing each in context. First I’ll suggest that Carter’sinterest in moving this legislation forward was weak because of his leadership style and the organizational structure he adopted; and secondly, I’ll discuss the ideological makeup of the Democratic majorities in the Carter administration and show how, from the 1960s to the Carter administration, Democrats tended to become more conservative and less aligned with Carter. Lastly, I’ll explore the relationship Carter had with the AFL-CIO and how that strained relationship contributed to the defeat of labor law reform.
Carter’s leadership style and organizational structure tempered his interest in labor law reform
Carter, a nuclear engineer before becoming governor of Georgia, was a reserved president who practiced moderation in everything. As an engineer and man of science, he approached problems with rationality and therefore, took minimal risks. The tone and direction of his administration was inferred by a paragraph in his inaugural speech in which he states: “We cannot afford to do everything, nor can we afford to lack the boldness as we meet the future” (Campagna, 1995, p. 34). This rather negative statement hinted at the pragmatic approach Carter would utilize in his administration. His approach to dealing with people and organizations was pragmatic as well. Carter wished to do things differently than the previous Nixon and Ford administrations, so he gravitated toward a less hierarchical organizational structure in his administration. He surrounded himself with loyal Georgians, sometimes known as the Georgia Mafia, who may not have had the expertise necessary to carry out their duties. Carter either failed to recognize or chose to discount the fact that Democratic Party unity was shaky and the makeup of the Congress had changed from a more cohesive unit under the Johnson administration to a more contentious group under his administration. Carter’s lack of interest or inability to build relationships, make concessions, and/or appease members of Congressproved detrimental to many of Carter’s proposals.
On July 19, 1977, H.R. 8410, or the Labor Reform Act of 1977,was proposed in the House. H.R. 8410 dealt with the rules governing an employee’s right to organize or join a union and ended with the majority’s decision to be represented and reach first contract or to remain unorganized. The bill addressed administrative delays in labor disputes, bargaining unit recognition, and reaching a first contract. The bill would also provide penalties for employers who unjustly discipline employees for attempting to organize and sanction unfair labor practices which involve delay tactics in organizing. The bill’s most important provisions are 1) Expediting Procedures and Representative Elections: Summary affirmation by the NLRB of decisions made by administrative law judges in unfair-labor practice cases; 2) Accelerating Court Appeals: Speedier enforcement of board decisions by permitting the NLRB routinely to seek court orders enforcing its decision if no appeals to them are filed within thirty days; 3) Expansion of Board Membership: expansion of the board from five to seven members and the Board’s terms from five to seven years; 4) Equal Access to Employees: unions should have access to employees during working hours; 5)Additional Cases Receiving Priority Treatment by the Board: preliminary injunction power; 6) increased penalties for violations; 7) Compensation Provision: compensation for refusal to bargain; and 8) Withholding Government Contracts: a ban on federal contracts ("Unions go all out to push labor-law reform through the Senate," 1978).
Ideological makeup of Carter’s Democratic majorities
Carter had heavy Congressional majorities in the House and Senate in the 95th and the 96th Congress which were very similar to the Democratic majorities in the 89th Congress under Lyndon Johnson. See Table 1.
Table 1. Congressional Members by Year
Congress and Year / Senate / House89th Congress: 1965-66 / 68-32 / 295-140
95th Congress: 1977-78 / 61-38 / 289-146
96th Congress: 1979-80 / 58-42 / 277-158
102ndCongress: 1992-93 / 57-43 / 270-165
111th Congress: 2009-10 / 58-41 / 255-178
To understand the trajectory taken by the Democratic Party which resulted in the inability of a Democratic majority to pass labor law reform during the Carter administration, we herald back to the Lyndon Johnson administration and the 89th Congress in the 1960s. Johnson had huge majorities in the House and Senate. His rise to power after the assassination of John Kennedy propelled him into a spotlight in which he felt he had to compete with the ever-popular JFK. Johnson was also in competition with the legacy of FDR and took on ambitious domestic programs as a way to distract the American public from the war in Vietnam, a war he inherited and felt compelled to finish. His Great Society saw huge strides made in domestic policy through the War on Poverty, passage of the Civil Rights Act of 1965, and the creation of Social Security, Medicaid, and Medicare programs. [16]
It has been asserted that the weakening of the party system and the decline in presidential authority and influence began in the latter years of the Johnson administration. Johnson believed in institutions and the integrity of the modern presidency. Johnson, who came of age during the New Deal era, acted like a power broker.Milkis (1995) writes that LBJ unwittingly encouraged the rise of an administrative politics that extensively circumscribed the power of the presidency (185). Yet, during the sixties and seventies, the courts began dismantling the discretionary power of the presidency, and there was a move toward participatory democracy. Selection of the president by party leaders was replaced with primary elections and political caucuses thus stripping away from presidents a secure political base. Congressional members no longer owed allegiance to a particular president for their positions. This undermined the unquestioned authority of the presidency and tempered the power Johnson wielded for the vision of his Great Society programs which concernedeconomic growth and justice for all races.
There was, in Carter’s 95th Congress, a large Democratic majority: 289 to 146. [17] Many of these Democratic congressmen were elected from Republican districts strongly affected by the Watergate scandal. Unlike the 89th Congress during the Johnson administration, though, there existed in the 95th Congress a voting alliance between the Southern Democrats and the Republicans. This alliance proved difficult for Carter to deal with and resulted in the rebirth of a conservative coalition. [18]The size of this voting alliance was problematic for Carter because many of these Democrats were geographically from southern or republican leaning districts and were not elected on the coattails of Carter. Their allegiance to Carter was weak because their ability to be reelected in two years did not depend upon decisions made by the Carter administration, but more on their ability to bring visible benefits home to their constituent districts. New congressional members particularly felt their performance would not be associated with Carter’s performance. As Carter’s poll numbers dropped during 1977-78, Democrats continued to move away from a Carter association and party loyalty.[19]Carter had to work extremely hard to keep Northern Democrats from moving into the coalition. Davis (1979) contends the defection of Northern Democrats was not so much a repudiation of the Carter White House but a general conservative trend among new congressmen and the general public toward issues such as “redistributive tax reform, national health insurance, reducing energy consumption rather than increasing production, and increasing government regulationof business” (477).
The assumption existed during 1977 that a larger Democratic majority in the House would translate into a more liberal voting record among House members. This was not the case in the 95th Congress. Voting records actually reflect a more conservative approach to issues such as voting against tax rebates for citizens, common-site picketing, public works programs to stimulate the economy, widespread use of class action suits in anti-trust cases, and for deregulation of natural gas prices, greater defense budget spending, budget cuts in health, education, and old age pensions, and subminimum wage for teenagers. [20]
President Carter’s Relationship with the Congress
James Madison, in Federalist No. 48 talked about Congress and its relationship with the president when he wrote,
Its constitutional powers being at once more extensive, and less susceptible of precise limits, it can, with the greater facility, mask, under complicated and indirect measures, the encroachments which it makes on the coordinate departments (Schlesinger, 1965, p. 707).
Congress has, since World War II, gradually done just as Madison suggested it would—gradually increase its powers through appropriations and investigation thereby diluting the powers of the President. This power shifting has been troublesome for presidents pushing an agenda at variance with Congress.
The President’s relationship with Congress has been described as one of the most important relationships in existence. Carter’s relationship with the 95th and 96thCongress was contentious. These problems existed because of changes to the presidential-congressional relationship as a result of the Watergate scandal and Nixon’s resignation in 1974. In 1975 a “flattening” of the organizational structure of the Congressional committees occurred from one in which power was diffused from the hands of the committee chairman to “subcommittee chairmen and the Democratic caucus as a whole” (Davis, Oct., 1979, p. 467). [21]This diffusion of power was made possible in part because of the high legislative turnover from 1972-1978 (Davis, 1979) in which many Congressmen had fewer than six years of experience thus resulting in less Congressional institutional memory.[22]The House Democratic caucus, made up of newer, less experienced Congressmen, directed this rule diffusion change in order to “reduce the disparities in influence among members of the House” (Davis, 1979, pg. 466). [1] This move toward a lateral organization was known as the Congressional Principal of Seniority. Prior to this diffusion of power, committee chairmen were very powerful. Presidents need only convince the committee chairmen of the favorability of their legislation, and the committee chairman would marshal the legislation to a favorable House vote. [2]After the diffusion of power, the committee chairman was elected by the Democratic caucus and could be removed by his colleagues if not responsive to the committee. Further, new rules required standing subcommittees and limits on a chairman’s ability to control the committee through proxy votes were established. Finally, the powerful House Ways and Means Committee increased from twenty-five to thirty-seven members and was no longer able to control the Committee-on-Committee, a committee responsible for nominating leadership to each of the party’s committee.