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Do Americans Want Our Middle Class Back?
Elizabeth Warren's new legislation would give back to workers the power Republicans have taken away - It could restore the middle class, and expand it to include people in virtually all labor sectors
Elizabeth Warren has a plan, and it’s great, if only Republicans weren’t committed to fighting it tooth and nail. But first some backstory…
Most Americans, having never studied Civics in school since Reagan stopped federal support for it, don’t realize that a middle class is not a normal thing.
It has to be intentionally created, by law, by having government “interfere” in the so-called “free market” on behalf of labor.
What we today call the middle class — the ability to raise a family, buy a house and car, take a vacation, save for old age — was, until the 1940s, typically very small in the United States, as it was in much of the rest of the developed world.
Most Americans today have no idea that Charles Dickens’ descriptions of life in England were also pretty accurate depictions of life for the working class here in the United States around that time, as well.
That era in the UK and the United States reflected the normal “resting state“ of capitalism when it has not been regulated by government. You see it, literally, all over the world today in countries where governments have not passed laws to specifically empower working people by giving them union rights.
There was a very tiny number of very rich people, with a small professional middle class (doctors, lawyers, shopkeepers) supplying them and the very rich, and a huge mass of the working poor.
Remember Ebenezer Scrooge and Bob Cratchit in Dickinson‘s Christmas Carol? Scrooge, as the owner of a small two-employee business, was part of that tiny middle class. Bob Cratchit was part of the 90+ percent of people in every developed country in the world then who are simply desperately poor and lived most of their lives in debt. (This is true of virtually the entire developing world today, too, as they don’t have strong unions, either.)
It was like that here in America, too.
We practiced largely unregulated capitalism until the 1930s, and the tiny class of morbidly rich people (that unregulated capitalism always produces) largely controlled our political system through most of our nation’s history, particularly from the early Industrial Revolution through the 1930s when President Franklin Roosevelt directly challenged those he called the “Economic Royalists.”
As recently as 1900, for example, women couldn’t vote, senators were appointed by the wealthiest power brokers in the states, and poverty stalked America. There was no minimum wage; when workers tried to organize unions police would help employers beat or even murder their ringleaders; and social safety net programs like unemployment insurance, Social Security, Medicare, food and housing supports, and Medicaid didn’t exist.
There was no income tax to pay for such programs, and federal receipts were a mere 3 percent of GDP (today its around 20 percent). As the President’s Council of Economic Advisors noted in their 2000 Annual Report:
“To appreciate how far we have come, it is instructive to look back on what American life was like in 1900. At the turn of the century, fewer than 10 percent of homes had electricity, and fewer than 2 percent of people had telephones. An automobile was a luxury that only the very wealthy could afford.
“Many women still sewed their own clothes and gave birth at home. Because chlorination had not yet been introduced and water filtration was rare, typhoid fever, spread by contaminated water, was a common affliction. One in 10 children died in infancy. Average life expectancy was a mere 47 years.
“Fewer than 14 percent of Americans graduated from high school. ... Widowhood was far more common than divorce [because of the dire economic consequences to women of divorce]. The average household had close to five members, and a fifth of all households had seven or more. …
“Average income per capita, in 1999 dollars, was about $4,200. … The typical workweek in manufacturing was about 50 hours, 20 percent longer than the average today.”
So how did we move from a system where the wealthy owned and ran pretty much everything, poverty stalked the land, and democracy was a shadow of what it would become to a system where most all citizens can participate in democracy and — at its peak in 1980 — over 60 percent of Americans lived the middle class “American Dream”?
And why is that 60 percent of Americans who were middle class now down to 45 percent, while the President of the United States is warning that democracy itself is threatened?
There are a number of parts to the Democratic Party’s New Deal and Great Society programs that built America’s middle class as the first and largest in the world until recently (China’s middle class is now larger than the entire population of the US, in large part because neoliberals here shipped our factories and jobs over there).
But, at its core, the simplest answer to how we built and how we can restore our middle class comes down to one word: unions.
Unions were on a roll through the 1930s (President Franklin Roosevelt pushed through the Wagner Act which gave them federal protections) and well into the 1940s. By the time Reagan came into office, roughly a third of America’s workers had union representation, which meant another third of Americans had the same pay and benefits because unions set the local wage floors.
Two-thirds of American families, in other words, were “middle class” and it was all because of unions.
It was the Machinists’ Union that represented my dad and the guys who worked with him at Lansing Tool & Die that let him buy a new house, a new car every 2 or 3 years, put his four sons through school, take an annual vacation, and save for his retirement with a single income.
That was the norm for the majority of Americans back in the era starting in the 1930s, although it’s been steadily collapsing since the Reagan Revolution.
The reason for that collapse, largely, is one law the GOP championed back in the days when my dad was a young man.
The situation of a prosperous, engaged, activist middle class was intolerable to the few morbidly rich Americans infected with the most severe wetiko form of greed, and they hooked up with Republicans in Congress in 1947 (Republicans controlled the House and Senate for 2 years) to pass the Taft-Hartley Act, sometimes referred to as the “Right To Work For Less” law.
As President Harry Truman told Chicagoans on October 25, 1948:
“Now, my friends, the record of that 80th Congress is a sad tale of the sellout of the people’s interest to put more and more power into the hands of fewer and fewer men. The Republican Congress, acting for big business, has already begun its attack to break the strength of labor unions by voting the vicious Taft-Hartley law.
“I vetoed that bill and fought to prevent its passage with all the strength I had as President of the United States. That Taft-Hartley law is the opening gun in the Republican onslaught against the rights of the working men in this country.”
And, indeed, it was. Truman was 100 percent right.
Taft-Hartley authorized states to reject several of the provisions of the Wagner Act, making it harder for workers to unionize and easier for employers to both prevent and bust unions in their companies. In the years since 1947, 27 Republican controlled states have embraced Taft-Hartley and passed their own “Right To Work For Less” laws.
It was the beginning of the end for the middle class, particularly in Red states. Today, workers in states with Right To Work For Less laws earn an average of $6,500 a year less than workers in states that still defend union rights.
Democrats and unionized workers have tried thousands of times and ways in the years since 1947, at both the federal and state levels, to repeal or soften Taft-Hartley and the various state Right To Work For Less laws.
Not only have they been repeatedly thwarted in their efforts by Republicans in Congress and state legislatures, but five Republicans on the Supreme Court have repeatedly used Taft-Hartley to shoot down workers’ rights in favor of the power of employers.
(At the end of this article is part of an excerpt from The Hidden History of the Supreme Court and the Betrayal of America detailing the Court’s role in destroying labor, almost all based on Taft-Hartley. You can read the entire chapter excerpt online at thomhartmann.com/labor.pdf)
But the times, as Bob Dylan would say, are-a-changing.
Senator Elizabeth Warren has proposed new legislation that would again grant workers the full right to a unionize. Called The Nationwide Right to Unionize Act, Warren’s bill has 18 Democratic co-sponsors in the Senate and a companion bill in the House has over a dozen Democratic co-sponsors so far including Pramila Jayapal. (Not a single Republican has ever supported such legislation, and they’re not about to begin now.)
But this bill is just getting started.
This legislation has the ability to change the American labor landscape and give back to workers the power Republicans — particularly since Reagan went on his jeremiad against unions in the 1980s — have taken away.
It would restore the middle class, and expand it to include people in virtually all labor sectors.
And it could overturn or at least challenge a number of Supreme Court decisions, and set the stage for more.
Call your member of Congress at 202-224-3121 and let them know you support The Nationwide Right to Unionize Act.
This might be — particularly if Democrats can expand their majority in Congress this fall — our best chance to rebuild the American middle class since the New Deal.
In the first tests of the Taft-Hartley law, Algoma Plywood Co. v. Wisconsin Board and Lincoln Federal Labor Union v. Northwestern Iron & Metal, the Court upheld the constitutionality of state-level anti-union provisions that echoed Taft-Hartley.
In 1954, the Court began really chipping away at unions, ruling in Radio Officers’ Union v. National Labor Relations Board that only a union shop could force dues payments and that a union agreement could not be used “for any purpose other than to compel payment of union dues and fees” (such as lobbying for legislation that might help labor).
In 1956’s Railway Employees’ Department v. Hanson, the Court cited the Railway Labor Act and declared that railway employees could indeed have and join a union, but dues could be used only for “the work of the union in the realm of collective bargaining.”
They added that if dues were used “for purposes not germane to collective bargaining [like supporting candidates for political office who support unions], a different problem would be presented” by the workers’ and employers’ rights to free speech under the First Amendment. Thus, the Court carefully and intentionally set up later attacks on unions.
Going back to the 1956 Hanson decision, the Court ruled in 1961 in Machinists v. Street that unions could not use the dues money for political purposes when those dues came from members who objected to the union’s political activities.
The Court-invented term “political activities” was very broad and not defined, and the Court required that members who objected could get a refund of their union dues. This set up decades of lawsuits and attacks on unions paid for by corporate- and billionaire-funded nonprofit foundations that continue to this day.
By 1963, the Court was again in its pre-FDR mode of hat- ing unions and doing everything possible to cripple them. In Railway Clerks v. Allen, National Labor Relations Board v. General Motors, and Retail Clerks Local 1625 v. Schermerhorn the Court further narrowed the powers and rights of unions, limiting them by saying, in GM, that a union shop must be “whittled down to its financial core”; in Allen that unions had to prove to “objecting members” exactly how the union determined expenses that could be charged for purely collective bargaining (as opposed to political) purposes; and in Schermerhorn that individual state courts—in addition to the National Labor Relations Board (NLRB)—could enforce state “right to work” laws.
To advance, support, and speed up the Court’s hostility to unions, in 1968 the National Right to Work Committee (NRTWC) was formed in a manner that allowed them to reach out directly to conservative union members, taking their concerns into court as their lawyers. Their mission is explicitly to “eliminate coercive union power and compulsory unionism abuses through strategic litigation, public information, and education programs.”
The NRTWC’s 501(c)(3) arm, the National Right to Work Legal Defense Foundation (NRTWLDF), which today aver- ages an annual budget of $5 million to $7 million, has been heavily funded by the Walton Family Foundation (Walmart), the Bradley Foundation, the Castle Rock Foundation, and the Olin Foundation, among others.
Jane Mayer, in her book Dark Money, wrote:
[Fred Koch, father of the Koch brothers] was an early and active member of the Wichita-based [Cecil B.] DeMille Foundation for Political Freedom, an anti-labor group
that was a forerunner of the National Right to Work Legal Defense Foundation. In a revealing private letter, one of its staff members explained the group’s “Astroturf” strategy.
In reality, [the staffer] said, big-business industrialists would run the group, serving as its “anonymous quarter- backs,” and “call the turns.” But he said they needed to sell the “yarn” that the group was “composed of housewives, farmers, small businessmen, professional people, wage earners—not big business industrialists.”
PR Watch noted in June 2014:
The NRTWC has deep connections within the national right-wing network led by the Koch brothers. Reed Larson, who led the NRTW groups for over three decades, hails from Wichita, Kansas, the hometown of Charles and David Koch. Larson became an early leader of the radical right-wing John Birch Society in Kansas, which Fred Koch (the father of Charles and David) helped found. . . .
The groups remain tied to the Kochs. In 2012, the Kochs’ Freedom Partners group funneled $1 million to the National Right to Work Committee, while the Charles G. Koch Charitable Foundation gave a $15,000 grant to the NRTWLDF, which has also received significant funding from the Koch-connected DonorsTrust and Donors Capital Fund. Today, at least three former Koch associates work as attorneys for the NRTWLDF.
The creation of the foundation led to an explosion of cases before the Supreme Court ostensibly brought by disgruntled union members. Many of the cases that follow were brought and litigated by the foundation’s lawyers.
Perhaps anticipating Reagan’s aggressive stance against pub- lic sector unions, the Court ruled in 1976 in City of Charlotte v. Firefighters Local 660 that public employers (government agencies) were not, under the Constitution, required to pro- vide to unions or union members the convenience of auto- matic deduction of union dues from paychecks.16 This set up an enormous conflict between unions and their members (when automatic deductions are done, the money is rarely missed; when unions bill their members, people scream).
Newly empowered by a raft of cases being brought to them by the NRTWC, in 1977 the Court again asserted, in Abood v. Detroit Board of Education, that union dues were legal only as long as they were used to pay for collective bargaining and administration.
The Court added that “a union cannot constitutionally spend funds [of anti-union “objectors”] for the expression of political views, on behalf of political candidates, or toward the advancement of other ideological causes not germane to its duties as collective-bargaining representative.”
While corporations (including those funding anti-union cases being brought to the Supreme Court) enjoy First Amendment “rights” to “free speech” (decided in 1977 in the First National Bank of Boston v. Bellotti case), unions, the Court said in Abood, do not have such rights.
In 1979, the Court again took a bite out of public- employee unions. The decision in Smith v. Arkansas State Highway Employees laid it out: “[The] First Amendment does not impose any affirmative obligation on the government . . . to recognize [a union] association and bargain with it.”
The 1984 Ellis v. Railway Clerks case further tightened the screws on unions by ruling that even union publications such as magazines and newsletters for members and union member organizing activities, if they included mention of political causes, were not part of the union functions that all members must pay for.19 “Dissenting” members not only were able to avoid contributions that funded political activities (as in earlier decisions) but also didn’t have to pay for union organizing or publishing activities.
The Reagan administration put its post-PATCO (Professional Air Traffic Controllers Organization) attacks on unions (and particularly on public-employee unions) into high gear, and the Court enthusiastically went along. In the 1986 Chicago Teachers Union v. Hudson case, the Court tightened restrictions on unions’ use of workers’ fees.
The Court ruled that if a worker “objected” to the union’s activities, the union must provide “an adequate explanation of the basis for the fee, a reasonably prompt opportunity to challenge the amount of the fee before an impartial decision maker, and an escrow for the amounts reasonably in dispute while such challenges are pending.” This saddled unions with even more expensive and time-consuming legal and accounting burdens.
Then, in the 1988 Communications Workers of America v. Beck case, the Court extended those limitations beyond public sector unions, so that unions in the private sector were saddled with the same expensive and time-consuming legal and accounting burdens.21 No more “free speech” for unions, public or otherwise, under any circumstances. Such rights are still held by corporations and right-wing nonprofits.
Having already restricted unions from using certain fees and dues for political and organizing activities, the Court fur- ther ruled that unions aren’t allowed to charge for legal fees related to litigation unless the litigation is “germane to col- lective bargaining activity.” Unions would have to figure out a new way to pay for their own routine legal, lobbying, and PR expenses, the justices ruled in 1991’s Lehnert v. Ferris Faculty Association, further hobbling unions.
In 1998, the Court ruled that corporations are allowed to force arbitration, but not unions. The case was Air Line Pilots Association v. Miller, and the Court said that when an employee tries to sue a corporation with whom she has an arbitration agreement, the corporation can legally force her to follow the arbitration process through to its completion before there’s any sort of conclusion, be it in her favor or not. In this decision, the Court also ruled that the union could not set up a similar system to deal with union members who didn’t want to pay their union’s fees.
Just to make sure that “dissenting” union members knew all about it, the NLRB determined that unions must, at their own expense, inform their members that they don’t have to pay for anything except for collective bargaining activities. The Court, in 1998, agreed in Marquez v. Screen Actors Guild.
While no corporation has ever had to get permission from its stockholders or directors to spend money on politics, the Court ruled in 2007 in Davenport v. Washington Education Association that unions don’t have First Amendment rights like corporations, and therefore it is not a First Amendment violation for states to force unions to get written permission (even from nonmembers) before spending any fees for things like political activities.
In the Court’s onslaught against labor, Republican- appointed justices even overruled state laws, eschewing con- servative “states’ rights” arguments. In the 2008 case Chamber of Commerce v. Brown the Court ruled that its decisions and the anti-union 1947 Taft-Hartley law preempt state labor laws.26 But the Court affirmed the First Amendment right of union busters to call “attention to the right of employees to refuse to join unions.” The ruling also prevents progressive states from using their own funds to fight union busting (states are still allowed to use state funds to promote any sort of corporate activity).
In 2012, the Court ruled in Knox v. Service Employees Inter- national Union, Local 1000 that “when a public-sector union imposes a special assessment or dues increase, the union must provide [notice] and may not exact any funds from nonmembers without their affirmative consent.”
Again, no free speech rights for unions. The notoriously anti-union Sam Alito wrote the opinion for the 5–4 decision, joined by the four other Republican appointees on the Court.28
One year later, in 2013’s Unite Here Local 355 v. Mulhall, the Court ruled that it’s illegal for an employer to help unions because the process of “neutrality and card-check agreements” is, according to the Court, a “thing of value” and thus illegal for a corporation to give to a union.
In the 2014 Harris v. Quinn case, the Court declared that it is unconstitutional for a union to require home health care workers to pay fees to the union for representation.30 In the process, the Court also took a couple of shots at the pro-union parts of the 1977 Abood decision. In this case, the Court invented (without the help of any legislature) a whole new category of employees that it called “quasi-public employees.” That category of second-class citizens can now be used to further limit public workers’ rights.
Finally, in 2018, the Court fulfilled Sam Alito’s dream of obliterating the union rights defined in Abood.
In a 5–4 all-Republican majority, they used the possibility opened in their own 2014 Harris v. Quinn decision by ruling that public sector employees represented by a union don’t have to pay any fees, even those associated with collective bargaining expenses. They hung this logic on the First Amendment, over strong and loud objections by the four Democratic- appointed justices.
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