Card Check Bill Opposition Weakened by Strategy Division

February 23, 2009 | Last updated: July 31, 2020

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South Carolina State Rep. Eric Bedingfield (R) won a second term in November, on the same day Barack Obama won the presidential race and Democrats took the largest congressional majorities in a generation. Within weeks, Bedingfield came up with a way to challenge the Democratic agenda right out of Charleston. He drafted a bill that, if passed by two-thirds of the state House and Senate, would place a measure on the 2010 ballot to invalidate any attempt by labor organizers to make unionizing possible without a secret ballot vote.

“Other members have introduced this bill in the past,” Bedingfield said on Thursday. “It hasn’t gotten the two-thirds vote. What’s changed is that there’s never been a concerted effort like this.”

Image by: Matt Mahurin Image by: Matt Mahurin

Bedingfield is a member of the Save Our Secret Ballot coalition, an alliance of businesses, conservative think tanks, and local politicians united in the goal of passing state ballot initiatives that prohibit any kind of elections held without secret ballots-and thereby, the thinking goes, nullifying the Employee Free Choice Act before Democrats in Congress can pass it. As it was written by the last Congress in 2007, EFCA would allow unions to be certified by the National Labor Relations Board if a majority of workers sign cards designating the union as their bargaining representative. Union elections would not be banned, but they would no longer be required. Union activists and anti-labor groups alike believe that the new rules would make it easier to organize.

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**Members of the coalition believe they’ve found the best strategy for stopping the proposed law in its tracks. They are running up against another, better-funded group of anti-EFCA campaigners who consider a state-by-state campaign a waste of time. Still other opponents of EFCA think that the battle was already lost in the 2008 elections, when the Democrats won their increased majorities. While all of the bill’s opponents are bolstered by polling that show 70 percent or more of Americans opposing EFCA if they see it as “eliminating the secret ballot,” the disagreement over strategy is hurting them in the most critical labor battle in decades. While opposition to EFCA will be well-funded, this division, and the size of the Democrats’ majorities in Congress, are making life difficult for the anti-labor side of the debate.

“This is basically about a 40-year struggle to bring the social democratic model to America,” said Linda Chavez, the president of the Center for Equal Opportunity and President George W. Bush’s first nominee for Secretary of Labor, on Thursday. “Unfortunately, I think it’s going to succeed. Having 58 or 59 Senate seats, instead of 55 seats-that makes a big difference.”

Many Washington-based activists are more hopeful than Chavez. There is little doubt that EFCA will pass the House of Representatives – in 2007, the bill picked up 15 Republican voters there. There are rumors that Blue Dog Democrats might ask for the Senate to act before the House does on EFCA, which would be fine for most activists, as that’s where they’ve focused their attentions. One insider at an anti-EFCA campaign identified four Democratic senators who could be cajoled to oppose the bill-Mark Pryor and Blanche Lincoln of Arkansas, Mark Warner of Virginia, and newly-appointed Colorado Sen. Michael Bennet.

In targeting these senators, the Washington-based anti-EFCA coalition is continuing a strategy that began during the 2008 election. In July, Peter Stone of National Journal reported that more than $100 million would be spent between multiple political action committees (and the Chamber of Commerce) to defeat Democratic Senate candidates who supported EFCA. The Employee Freedom Action Committee, a political outgrowth of Rick Berman’s Center for Union Facts, spent millions of dollars to fund ads and staffers who hounded candidates such as Sens. Mark Udall (D-Colo.) and Al Franken (D-Minn.) about EFCA.

Almost all of the Democrats targeted in these campaigns won their elections. The economic crisis played a decisive role, not merely by driving Republicans down in the polls, but by erasing assets of the people who had been funding anti-EFCA campaigns. Sheldon Adelson, the Las Vegas billionaire who had given $30 million to the Freedom’s Watch PAC and had called EFCA a “fundamental threat” to society, lost an eventual $24 billion of his net worth in the crash.

The sinking fortunes of funders like Adelson caused anti-EFCA campaigners to scale back at a critical time. Now, some worry about the effort to run ballot initiative campaigns in states for the lack of funds. “The business community has a very big appetite for the campaign against EFCA,” said one campaign insider. “It’s also very hungry, and the cupboard is bare. They have no money. Everyone is trying to raise money.”

“The very existence of efforts in the states is healthy,” said Ernie Istook, the chairman of the coalition’s advisory board, on Wednesday. Istook, a former Republican congressman from Oklahoma and a fellow at the Heritage Foundation, said that he’d received positive feedback from his friends in Congress because the ballot initiatives, by attracting local media, “are helping to educate the public and open up new fronts. Our goal is not simply to win a one-time fight in Congress, because bills can be re-filed in the next session. Our goal is to enact provisions that kill the idea.”

Some anti-EFCA campaigners in Washington disagree with this, and point out that the states where ballot initiatives have been launched do not contain swing senators who could cast the deciding votes in a 2009 or 2010 EFCA fight. Rep. Bedingfield’s South Carolina has two Republican senators, whose opposition has never been in question.

While Bedingfield says that his effort can be “a tool to tell businesses to come to South Carolina,” it doesn’t calm Washington’s anti-EFCA campaigners. The proposed language in South Carolina and the 10 other states read, in part, “Where state or federal law requires elections for public office or public votes on initiatives or referenda, or designations or authorizations of employee representation, the right of individuals to vote by secret ballot shall be guaranteed.” Some campaigners argue that a pre-emptive law like this won’t work; if it could, it would have been tried already.

Clint Bolick, a fellow at Arizona’s free-market Goldwater Institute and the principal legal adviser for the coalition, disagrees. “I didn’t hear anyone talking about this idea until very recently,” Bolick said. “It’s happening now because the threat is more significant. Even if the folks in D.C. are successful at derailing EFCA this time, we’re likely to have an even more Democratic senate in two years. It’s essential that we create some thunder at the grass roots.”

“We’ve got many of the same donors as [the Washington campaigners],” Bolick continued. “I don’t perceive any shorting of funding.”

In a legal memo that Bolick wrote for the coalition, he acknowledges that if anti-EFCA ballot measures pass after the president signs the bill, it will be difficult to defend the new lines in state constitutions. “Federal preemption law will present a significant challenge to state constitutional protections of the right to secret ballot,” Bolick wrote, “but ultimately, the interests served by such provisions should prevail.” That is exactly why some Washington activists oppose the state-focused campaign, and why labor attorneys contacted by TWI are not overly worried about it.

That won’t dissuade Bolick and the other members of the coalition from focusing their attention in states, ignoring the Senate, and trying to build a populist movement against EFCA. “You don’t get rid of your relief pitcher because you’ve lost your starter.”