In the August 8, 2008, edition of the Wall Street Journal, an editorial denounced the Employee Free Choice Act (EFCA), organized labor's most recent effort to reform US labor law, as a measure that would lead to worker intimidation and the end of free and fair workplace representation elections. That the nation's leading business journal carried an editorial outlining the familiar EFCA opponent's trope of worker intimidation by unions was not surprising. That the author's identity was former South Dakota senator George McGovern—that aging icon of American liberalism and a self-described “longtime friend of labor unions”—foreshadowed the uphill battle and ultimate defeat labor and its allies would face in enacting the measure.

McGovern passionately attacked EFCA provisions allowing workers to bypass a secret-ballot union election if a majority signed authorization cards asking the government to certify a specific union as their bargaining agent. He urged Democrats to oppose EFCA's “undemocratic overreach” because this provision would undermine democracy by opening the door to the one-on-one intimidation of workers to sign cards by union organizers or their coworkers. “We are the party that has always defended the rights of the working class,” McGovern wrote. “We cannot be a party that strips working Americans of the right to a secret-ballot election.”Footnote ¹ These were painful critiques of EFCA coming from a former labor historian and a man described by the National Right to Work Committee as “a far left icon.”Footnote ² Although McGovern was not the only Democratic critic of EFCA, his interventions consternated the act's supporters, who had hoped that electing President Barack Obama and large House and Senate majorities would clear the way for reform.Footnote ³

Yet within months the anger at McGovern turned into frustration with the president and Democratic Congress. After years of legislative and public relations work, after providing much of the electoral muscle behind Obama's election, and after securing what seemed like a filibuster-proof Senate majority (following Senator Arlen Specter's switch to the Democrats), labor's allies failed to muster the sixty votes necessary to bring EFCA to a Senate vote. Although President Obama voiced support, he did little to round up votes. Democratic defeats in the midterm congressional elections in 2010 ensured that EFCA's supporters would have to wait at least two more years before trying again.Footnote ⁴ The defeat was all the more painful because it so closely resembled past instances in 1965, 1978, and 1994, in which filibusters blocked labor law reform efforts.Footnote ⁵

Scholars and activists alike have already begun to dissect the EFCA fight and muse on its significance.Footnote ⁶ To date, however, no one has used the EFCA case as an invitation to reflect on the larger struggle within which the fight to pass EFCA was firmly nested, the effort to advance workers' rights as human rights. We should not lose the opportunity to engage in such reflection, for it is sorely needed. The struggle to pass EFCA was in many ways framed by the same thinking that has animated the movement to advance workers' rights as human rights. The difficulties that EFCA's proponents encountered in making their arguments—and in dealing with the criticisms like those raised by George McGovern—speak to some of the limitations of the human rights framework for labor. Now that the EFCA bill is no longer in play, labor and its allies have an opportunity to reevaluate this framework, rethink their assumptions, and recalibrate their arguments.

The point of this short essay is not to rehash the EFCA fight, but rather to use it as a point of departure to stimulate reflection on the workers'-rights-as-human-rights synthesis during what appears to be a defining moment in the history of the two intertwined historical forces from which that synthesis emerged, the labor movement and the liberal tradition. The failure of the EFCA campaign, which drew heavily on the liberal language of human rights, provides us with an opportunity to revisit and revive a question that has cropped up in several iterations over recent years: Is the human rights framework an effective vehicle for advancing workers' collective interests?Footnote ⁷

Before we take up this question, it is important to acknowledge first the widespread influence of the workers'-rights-as-human-rights framework. Unquestionably, this synthesis has gained momentum in the twenty-first century. In many ways it is the product of the growth of the international movement for human rights that has blossomed since the 1970s and is embodied in such organizations as Amnesty International. But the recent focus on US workers' human rights is largely attributable to the enormous influence of Unfair Advantage: Workers' Freedom of Association in the United States under International Human Rights Standards, the landmark study by the influential labor lawyer and scholar Lance Compa published in 2000 by Human Rights Watch (HRW), which has become the most influential institutional critic of human rights abuses in the workplace. Unfair Advantage showed how American workers' rights to organize were being systematically violated. Its findings and arguments gained attention from activists and academics alike. The report helped ignite the interest of scholars, who took up the cause in books like James A. Gross's edited volume Workers' Rights as Human Rights.Footnote ⁸ Its influence was evident as well in 2003, when the AFL-CIO launched its own nongovernmental organization, American Rights at Work, with the mandate of defending US workers' human rights. Over the following years the influence of the human rights approach percolated through the American labor relations establishment and helped shape the discourse and thinking of labor's leadership. The National Labor Relations Board's current chair, Wilma Liebman, is among those who have been influenced by the human rights framework. “At its heart, the [National Labor Relations] Act is a human rights law,” she told members of Congress in 2007.Footnote ⁹

The human rights framework continues to exert an enormous influence in both labor and academic circles and shows no signs of dissipating. Compa's work with HRW, which has extended to further studies of human rights abuses in such industries as meatpacking and poultry processing, continues to attract attention, bringing more instances of rights abuses to light. HRW itself has grown in prominence thanks in part to the September 2010 announcement that George Soros's Open Society Foundations would provide $100 million to fund its ongoing work. And scholars of labor and labor relations from multiple disciplines continue to find the human rights framework attractive.Footnote ¹⁰

Yet despite its continuing popularity among American activists and academics, the human rights-based defense of workers' interests has scarcely been a panacea for US organized labor. Unions have declined in the United States even as efforts to defend workers' human rights have increased. Nelson Lichtenstein, among others, has suggested that this might be more than an ironic coincidence, that there might be a relationship between these two phenomena.

Noting that the rise of rights consciousness and the decline of union organization occurred almost simultaneously, Lichtenstein has suggested that “an inverse relationship may well link” the two.Footnote ¹¹ He explored this idea in a thought-provoking passage from his 2003 book, State of the Union: A Century of American Labor. Noting that in the American context rights consciousness tends to privilege the individual's interests above the group's and tends to promote the reliance on legal structures that channel discontent away from collective action toward juridical procedures, Lichtenstein went on to call attention to the ways in which “rights consciousness can undermine the idea of class solidarity, not to mention the integrity of workaday trade unionism.” Lichtenstein's views have by no means gone undisputed. Scholars such as Nancy MacLean and Dorothy Sue Cobble have argued that rights consciousness has played an important and positive role in promoting collective action among workers, especially women.Footnote ¹²

As the union movement's struggles continue, so does the academic dialogue over the role of rights consciousness and the framing of workers' rights as human rights. New Labor Forum recently sponsored a representative debate between Compa and the progressive labor lawyer and publisher Jay Youngdahl. The latter asserted not only that “labor rights are not the same as human rights,” but also that rights discourse inevitably erodes the concept of solidarity and relentlessly “individualizes the struggle at work.” Compa countered that there was no inherent conflict between rights and solidarity and that what labor needs is “a skillful, strategic interweaving of these strands into a springboard for labor revitalization.”Footnote ¹³

The failure of EFCA offers us an opportunity to revisit the debate about the efficacy of the human rights framework for labor in a way that can both clarify some of the problems that Youngdahl and others have found with rights-based discourse, while at the same time helping point us toward the sort of “skillful interweaving” of the concepts of rights and solidarity for which Compa calls.

The controversy stirred by George McGovern's EFCA critique provides an opportune point of entry into this discussion. By itself, McGovern's statement probably had little impact on the outcome of the EFCA battle. The defeat of the bill undoubtedly had more to do with partisanship and power politics than with the quality of the arguments marshaled by either side.Footnote ¹⁴ With roughly half of its membership concentrated in just six states, the labor movement simply lacked the clout necessary to push conservative Democrats from right-to-work states to support its bill.Footnote ¹⁵ But if McGovern's intervention was not decisive, it was nonetheless revealing.

More than any other episode in the EFCA debate, McGovern's attack on the legislation showed how ambivalent and problematic the rights-based argument for the law turned out to be. McGovern did not contest the workers'-rights way of framing the EFCA debate. He embraced it. He characterized himself as a champion of workers' rights and of their freedom to associate and to freely choose union representation. But he went on to argue that these freedoms—basic human rights—would be threatened by the bill, especially the provision of the legislation that would allow workers to forego NLRB-supervised union elections in favor of signing authorization cards to achieve union recognition. The “card check” method, he argued, would potentially expose workers to the intimidation and arm-twisting of organizers and peer pressure from pro-union coworkers, thus depriving them of their freedom of association.

The controversy triggered by McGovern's arguments highlighted two intractable yet interrelated problems that seem inextricably entangled in any rights-based labor argument. First, it showed how difficult it is for workers to assert their rights without triggering conflicting and competing rights claims that send all such arguments sliding down a slippery slope of “rights talk” into what David Brody has aptly called “a weighing of rival rights.”Footnote ¹⁶ Second, the McGovern controversy indicated the degree to which anti-union forces hold the advantage in any framework in which the right of freedom of association plays a preeminent role, as is most often the case when the workers'-rights-are-human-rights argument is made.

Consider first the problem of rival rights claims. McGovern defended his anti-EFCA stance by arguing in the Wall Street Journal that US labor law already “maintains a careful balance between the rights of businesses, unions and individual employees.” What was wrong with EFCA, he argued, was that it would tilt this careful balance decisively in one direction. It would privilege the rights of workers who wanted to form unions over the rights of coworkers who might not wish to organize, or employers who had rights of their own. In short, EFCA was a threat to equal rights.Footnote ¹⁷

This problem of rival rights came out most clearly in the critique of “card check” advanced by McGovern and other EFCA critics. Critics argued that this provision of the bill threatened to deprive workers of their rights by opening the door to coercion. Early in the EFCA battle, opponents of the bill promoted the idea that mobsters and goons would use the card check process to intimidate workers into joining corrupt unions against their will. EFCA supporters had trouble taking such arguments seriously. The law's advocates believed union coercion of card signers was a phantom threat to workers' rights, especially when compared to the power of a corporation to intimidate those who depend on its paychecks.

But to those not directly invested in the EFCA fight, the threat of union coercion seemed plausible enough, especially considering how deeply ingrained the idea of union corruption is in American culture. American popular culture contains a vibrant strain of suspicion of unions as instruments of corruption and coercion. The image of Marlon Brando's character Terry Molloy bloodied by union goons in On the Waterfront, a smirking Jimmy Hoffa testifying before Congress, or Jock Yablonski's murder at the hands of corrupt officials from the United Mine Workers are all part of the common cultural heritage of the past several decades, and such images have been reinforced recently by the popular television drama The Wire.Footnote ¹⁸ EFCA opponents easily summoned the power of these images to suggest that the threat of union intimidation was every bit as serious as that of employer intimidation. The anti-EFCA Coalition for Workplace Democracy enlisted actor Vince Curatola, who played the hood “Johnny Sack” on the HBO series The Sopranos, to appear in an ad suggesting that organized crime would use “card check” to coerce workers into bought-off unions. That ad was the most sensational in a bitter advertising war between EFCA supporters and opponents. As Nelson Lichtenstein observed of such allegations of union corruption, “The truth or falsity of such charges is far less important than their resonance.”Footnote ¹⁹ The charges clearly resonated. “The EFCA is Now in Congress: Ready for a ‘Sopranos’ Workplace?” asked one anti-EFCA blogger.Footnote ²⁰

McGovern's suggestion that EFCA would erode workers' freedom to choose to organize or not pointed to a second problem inherent in labor's use of the human rights framework: By privileging the right of freedom of association, that framework lends itself just as well (perhaps even better) to the arguments of those who oppose unions.Footnote ²¹ This is in part due to the fact that in practice unions are not completely free associations and do not function in a manner similar to voluntary organizations. For one thing, they often possess the right to compel support from unwilling workers. Except in right-to-work states or public workplaces that forbid arrangements requiring workers to pay union dues or agency fees for the costs of representation, workers are not free as individuals to leave unions at will or to join rival organizations if the spirit moves them. Nor can they decide individually not to abide by the contracts that unions negotiate on their behalf. In most private workplaces unions operate as state-sanctioned, majority-rule organizations that have the power to tax those whom they represent and to create rules that govern their work. There are important reasons why this is true: If unions lacked such power, it would weaken them as bargaining entities. But because it is true, characterizing union organizing and collectively bargaining as an exercise of free association is not a straightforward task.

In many respects, anti-union forces have become adept at using the language of human rights, and especially the right of freedom of association, to attack unions as enemies of individual freedom. Indeed, sophisticated anti-unionists have developed a rights talk of their own that places freedom from union coercion at the pinnacle of workers' rights.Footnote ²² Consider the program of the Alliance for Worker Freedom (AWF). Founded in 2003, it is in many ways a mirror image of American Rights at Work, the pro-EFCA group. AWF bills itself as a “non-partisan organization dedicated to combating anti-worker legislation and promoting free and open markets.” It opposes what it calls “command-and-control policies which skew the labor market toward one group over another and regulatory policies that interfere with the natural ebb and flow of the free market.” According to the AWF, “forced membership” in unions and “overregulation of the marketplace” represent “the pure antithesis of liberty.” The AWF aims to “protect worker's rights and freedoms in the workplace and to advocate for pro-worker and pro-free market policies.” To educate the public on the ways in which EFCA would undermine workers' rights, the AWF website offered a feature called “Get Card Checked: The Game,” in which visitors to the website could play the role of a young tattoo artist who endures union intimidation. Whether the player resists the pressure or signs the card, the game always ended the same way: A majority of tattoo artists are conned or coerced into signing cards, the union is organized, and in short order the tattoo shop where they work goes out of business and everyone loses not only their freedom but their jobs.Footnote ²³

To union advocates, the arguments presented by the AWF and similar groups might seem absurd on their face. It is, to be sure, easy for union sympathizers to mock an organization that would assert a negative correlation between a state's union density and its level of worker freedom, as the AWF does in its annual Index of Worker Freedom report. (By the AWF's calculations, Mississippi's workers are twelve times more “free” than workers in New York state because they live in a right-to-work state with a low minimum wage, a small union base, and minimal state labor regulations.Footnote ²⁴) But it would be a mistake to dismiss such arguments as the disingenuous products of Chamber of Commerce flacks. As we know, such arguments have a long historical lineage in the United States. Perusing the pages of the 1922 volume The Struggle for Industrial Liberty, by an intellectual father of the anti-union movement, Walter Gordon Merritt, or the 1940s editorials of right-to-work advocate William Ruggles, one finds early expressions of the rights-based arguments and language that organizations like the AWF currently promote.Footnote ²⁵

But this strain of libertarianism has never lacked working-class followers in the United States, and in these days, when the “Don't Tread on Me” activism of the “Tea Party” variety is on the upswing, indications are that the attraction of this political philosophy is waxing, not waning. The anti-union argument only gained ground during the EFCA fight according to public opinion polls, which showed union favorability ratings falling to their lowest level in decades.Footnote ²⁶ In the years immediately ahead, the volume of anti-union rights talk is sure to increase. Since the 2010 landslide delivered control of governors' mansions and legislatures to the Republican Party, anti-union forces have begun gearing up efforts to enact right-to-work laws in eleven states, including such union strongholds as Michigan and Pennsylvania.Footnote ²⁷ Inevitably, these efforts' proponents will make the case that the “compulsory union membership” provided for in union-shop contracts infringes on workers' rights to free association.

With EFCA now sidetracked indefinitely and anti-union forces gathering strength, it is time to reassess the workers'-rights-are-human-rights argument in light of both recent experience and history. As US union membership dwindles to its lowest point in a century, with less than seven percent of private-sector workers organized, the situation could scarcely be more urgent. Amid this deepening crisis, the crucial question is no longer whether the rise of rights discourse was good for labor. The question is whether the rights-based approach points a way forward for labor or whether it is becoming a political and rhetorical cul-de-sac. The way the EFCA debate unfolded suggests that the latter is true and that, at the very least, labor's supporters need to rethink their rights strategy.Footnote ²⁸

The need for such rethinking is obvious. Again, the McGovern controversy is instructive on this point. One need not agree with the former senator to conclude that his critics did a poor job of rebutting him. Indeed, few of those critics deigned to even take on the substance of McGovern's charges, preferring instead to cast aspersions on his motives.Footnote ²⁹ Columnist Matt Yglesias suggested that McGovern was consumed by “bitterness,” still carrying a grudge against the AFL-CIO for failing to endorse his 1972 presidential campaign.Footnote ³⁰ Outraged blogger Ian Welsh concluded that he was nothing but “a patsy” for anti-unionists, a man who was prepared to sell his soul to wealthy corporate interests, “trading on what he was yesterday, for cash today.”Footnote ³¹ Such statements were more akin to cries of frustration than reasoned arguments. Their ad hominem quality spoke to a deeper problem: EFCA's supporters were simply unable to trump their opponents' rights arguments with their own.

In truth, McGovern's EFCA critique was not the venal, self-serving betrayal of liberal principles implied by his critics as much as a symptom of the increasing inability of today's dominant form of liberalism—the very strain that gave birth to the human rights framework—to employ its familiar rights-based arguments in ways that come to terms with the wide-ranging, collective disempowerment of workers that has gathered steam over the last few decades. Rather than assaulting McGovern's motivations, EFCA's supporters would have been wiser to consider how an icon of American liberalism, a man whose intellectual training came as a historian of labor, could use the same rights-oriented arguments they employed and yet arrive at starkly different conclusions regarding the most significant piece of labor legislation in a generation. They would have profited from pondering what their estrangement from McGovern in turn suggests about the limitations of the rights-based framework to which they each claim fealty. The controversy between McGovern and his critics reveals nothing so much as the necessity of transcending those sorts of arguments. We can no longer afford to be mired in debates that pit one set of rights against another while workers' collective power dwindles.

Fortunately, as Gary Gerstle once remarked, the American liberal tradition is “a variable, somewhat tractable, political philosophy,” above all a “protean” thing. Liberalism evolved dramatically over the course of the past century and a half. The liberalism of the postwar era, with its emphasis on racial and gender equality, minority rights, and an expansive notion of individual freedom differed from the liberalism of the New Deal era, which was concerned above all with regulating capitalism and protecting workers and consumers against the power of corporate interests. New Deal liberalism in turn departed from its Progressive-era antecedents, which were more focused on rooting out corruption and protecting individual virtue against the degradations of slums, sweatshops, trusts, and political machines. All of these brands of liberalism could be distinguished from the classical liberalism of the late nineteenth century, which championed individual freedom and laissez-faire.Footnote ³²

As American liberalism evolved from one era to the next, its followers retained an abiding concern for emancipating humans from forces that oppressed them. But from age to age they were forced to recalibrate the balances they struck between the defense of individual rights and the promotion of collective interests as they grappled with new forces and unexpected developments that threatened human freedom. In the light of the widening divide of economic inequality, growing corporate power, and increasing ineffectuality of government regulation that have become the hallmarks of our time, the time has come for liberals again to recalibrate that balance. Liberals must find ways to confront these developments lest they see their rich tradition continue its rapid degeneration into corporate-dominated neoliberalism on the one hand or mere libertarianism on the other.

Labor has a vital stake in the recalibration of liberal language and values, and although it is a weakened force, it can still help to shape that recalibration. Just as workers' struggles helped educate and transform the children of nineteenth-century classical liberalism into Progressives and New Dealers, so labor today can help produce Compa's “skillful interweaving” of rights arguments with the values of solidarity and the common good which are a prerequisite to the revival of the liberal tradition. The creation of a new liberal synthesis is beyond the capacity of the dwindling band of self-identified liberals alone. It must be the product of collaborations among liberals, progressives, moderates, and radicals alike—just as the creation of New Deal-era liberalism was.Footnote ³³

As we consider what the next liberal synthesis might look like, it is helpful to look back to the early part of the twentieth century, before a rights-heavy discourse became the predominant liberal mode. It might surprise some present-day activists to know that the concept of “workers' rights” did not play a significant role in the arguments of the labor reformers who laid the foundations for industrial unionism or the Wagner Act in the years before World War Two. Instead of focusing on rights, they organized their arguments around the urgent need to expand democracy into the workplace. They argued that unless employment relations were democratized, political democracy itself would never be secure. “Political Democracy is an illusion, unless builded upon and guaranteed by a free and virile Industrial Democracy,” argued one of the most influential labor reformers of that period, Frank P. Walsh. By making that argument, Walsh and a broader movement of reformers and labor activists helped elevate the ideal of “industrial democracy” to a central place in the liberalism that emerged from the Progressive Era and flowered during the New Deal.Footnote ³⁴

I have argued elsewhere that the struggle for industrial democracy played a more salutary role in organizing progressive forces to address the labor question in the early twentieth century than a rights-based formulation of the labor problem would have been able to do. By privileging the ideal of majority rule rather than workers' rights, the concept of industrial democracy provided a powerful counterweight to the individualism which was so deeply rooted in both the culture and the judicial system; by helping reformers articulate the linkages between the workplace and the state, it helped them make the case for the necessity of reform in both arenas of power; and by positing the enhancement of democracy as a central goal of labor relations, it lent encouragement to workers who sought to make their unions more democratic. Industrial democracy was, moreover, a malleable concept, open to appropriation by radicals, reformers, and pure-and-simple trade unionists alike. That framework was not without its own flaws: The majoritarian biases of the industrial democracy ideal proved unsuitable to the task of rooting out systemic discrimination against women and racial minorities. However, despite these limitations the ideal of industrial democracy functioned extraordinarily well during its heyday as a concept around which liberals and labor could pull in harness to their mutual advantage.Footnote ³⁵

If the liberals and labor activists of the early twentieth century did not depend upon rights-based arguments, there is no reason why their present-day heirs must depend so heavily upon them. Human rights appeals can and should continue to play an important role in the struggle for workers' empowerment, especially in international or transnational contexts.Footnote ³⁶ But both labor and today's progressives have much to gain by developing a framework that reaches beyond rights to articulate a vision that references to rights alone cannot evoke.

What that vision is and how best to articulate it is not yet clear. Nor will we find it in the past. While industrial democracy worked well in its time, it was a product of distinctive circumstances and of a unique historical moment that is long gone: We cannot simply resurrect that dated ideal. But what we can do is learn from it and look for our own ways of articulating democratic aspirations, just as the demand for industrial democracy once did. We can also seek ways to link those aspirations with the growing desires for transparency, accountability, and sustainability that are making themselves felt across the political landscape in inchoate and sometimes contradictory ways, and with the abiding hunger for solidarity and community that acquisitive individualism has yet to extinguish—a hunger that rights-based appeals have never fully satisfied.

To be sure, this moment marks a nadir, a time for crisis for both organized labor and its progressive allies. But it is also a moment of opportunity, a time to discard or revise timeworn frameworks and strategies, a time to begin anew. There is no guarantee that organized labor can find a way to surmount the obstacles it faces. But it would be folly to continue to employ strategies that are not working. The time has come to move beyond our over-reliance on the rights-based framework in search of a new vision whose full dimensions are still only dimly visible, but whose broad outlines our recent experience has begun to illuminate.