The Webbs saw this coming. Writing in the late 19th century, Sidney and Beatrice Webb predicted that labor unions would evolve from private groups into quasi-governmental entities. At the time, the economy was industrializing, speeding up, and growing more complex. And that complexity was drawing government deeper and deeper into market regulation, especially in labor markets. The Webbs thought this regulation would eventually displace unions from their traditional roles. Unions would no longer be needed to bargain over wages and working conditions. Instead, they would act as the government's eyes and ears. They would feed the government information and help it design new work standards. They would, in short, no longer represent workers; they would represent the state.
The Webbs were British economists; they were writing about late 19th-century England. But they could just as easily have been writing about the 21st century United States. Today, U.S. unions do less bargaining and more politicking. They fund campaigns, sponsor laws, and run political action committees, and they serve on quasi-governmental boards, where they write and implement sector-wide regulations. They have, in short, transformed from private bargaining agents into public interest groups.
That change could affect their legal status. Today, unions represent every person in a certified bargaining unit—even people who don't want their services. But the U.S. Supreme Court has said that the government cannot force people to associate with political organizations. And unionism is, today, essentially a political cause. So it is no longer clear whether the government can still force people to accept union representation. Change has come to the labor movement; and a corresponding change may have to come to the law.
Political Evolution
Though it's hard to imagine today, unions were once apolitical. The modern labor movement took shape in the late 19th century, when radical groups like the Knights of Labor gave way to more practical groups. Chief among them was the American Federation of Labor. The early AFL preached less revolution and more pragmatism. It knew that workers joined unions because they wanted to improve their material stations. They wanted better wages, shorter hours, and more benefits. They didn't want to destroy capitalism, but to thrive in it.
That view was embodied by the AFL's longtime president, Samuel Gompers. Gompers was the face of "voluntarism": the idea that unions were better off when left to their own devices. Gompers said that if unions relied on government, they would become complacent, even weak. Political winds would inevitably turn against them. And then they would be exposed, powerless to stand on their own feet. So they would be stronger, he thought, if they held government at arm's distance. They could recruit their own members, negotiate their own contracts, and earn their own advancement. They could find security not in city hall, but at the bargaining table.
That idea persisted long after it stopped reflecting reality. The New Deal brought favorable labor legislation and explosive membership gains. In 1932, just before the first wave of New Deal legislation, about ten percent of non-agricultural workers belonged to a union. Two decades later, after passage of the NIRA, FLSA, and NLRA, that percentage had tripled. Labor expanded into new territories, new professions, and new industries. And that growth changed not only its membership, but also its outlook. Some labor leaders started to see voluntarism as outdated—even a hindrance. If pro-union laws could boost membership so dramatically, was the government really so bad? When times were tough, why not turn to politics?
Later events only reinforced that view. Unions reached their peak in the 1950s, when they represented more than a third of all workers. But mid-century reforms—especially 1947's Taft–Hartley Act—tilted the law back toward management. And at the same time, union membership began to erode. By the 1980s, labor's share of the workforce fell to twenty-one percent. And by the turn of the century, it was scraping just ten. The percentage continued to creep down, hitting six percent of private-sector workers last year. So now, unions represent a smaller slice of the private-sector workforce than they did before the New Deal.
The causes of this decline are complex. Since 1950, the economy has come under pressure from competition, globalization, and trade. It has also been swept by technology and given birth to new industries—industries with no tradition of unionization. And it has moved steadily away from manufacturing and toward professional services. All these changes, especially the shift to services, have made unions' jobs harder. It was far more efficient to organize one plant with four thousand workers than it is one restaurant with fourteen. So unions now spend more time and money to organize fewer and fewer new members.
Labor leaders often disagree about how to reverse the trend. Some have called for more organizing; some want to block international trade; some want to stand athwart the world and yell " stop!" But whatever their differences over tactics, they agree that the road back to power runs through politics. Since the 1990s, they have become some of the most country's active political interest groups, now making up almost half of the top-twenty donor list. They have also run their own members as candidates, placing ideological fellow travelers in office. And they use their political leverage to pass a bevy of pro-union legislation. In recent years, this legislation has included sector-specific minimum wages, " labor peace" requirements, and bans on so-called captive audience meetings. It has also included " labor standards" boards, which give unions a place to "bargain" with employers and the government for sector-wide standards. The new laws have cost unions time, energy, and vast amounts of money. And increasingly, they are no longer a sideshow to traditional bargaining; they are the main attraction.
In fact, this emphasis on new laws and politics has bled back into what is left of traditional bargaining. Unions now engage in what they call " common good" bargaining. They bargain not only over wages and working conditions, but also broader social and political concerns. For example, some unions have demanded to bargain over affordable housing, tax reform, and Medicaid expansion. Others have demanded to bargain over warrantless searches, tuition assistance, and defunding the police. These demands expand bargaining beyond its historical confines—deliberately so. Unions think that they can gain more political leverage if they build a bigger political tent. And to do that, they have embraced openly partisan ideologies. They have become, in effect, just another color in the progressive political rainbow.
Constitutional Reverberation
That change is more than just a social curiosity; it also has constitutional implications. In Janus v. AFSCME, the Supreme Court held that the First Amendment barred public-sector unions from extracting "fair share" fees from nonmembers. A fair-share fee is a fee paid by a non-member to cover the costs of bargaining. The Court reasoned that bargaining with the government is always political, and the government cannot force a person to fund political positions. So fair-share fees were an impermissible political exaction. The Court added that because public unions were effectively political bodies, union representation itself burdened employees' freedom of association. The Court did not, however, address whether that burden was constitutional, as no one in the case raised the issue.
Since then, employees have argued that exclusive union representation does violate the First Amendment. Exclusivity saddles them with the "services" of nakedly political bargaining agents. Lower courts have turned those arguments aside mostly because of an older case, Minnesota Board for Community Colleges v. Knight, which suggested that exclusive representation was okay in the public sector. Knight seemed to say that when the government bargains about working conditions, it can choose its own bargaining partner. And if it chooses one exclusive union to bargain with, that choice burdens no one's associational rights.
But whether or not that's what Knight meant, the decision has no bearing on private-sector bargaining. In the private sector, the government does not choose its own bargaining partner; it imposes one on private parties. And some of those parties object to their unions' political views—views that are increasingly central to unionization itself. So private-sector bargaining raises a different question: can the government force private citizens to associate with a union when that union's core purpose is increasingly political? (Elsewhere, I have argued at greater length that it cannot.)
That question will only grow more urgent. Unions show no sign of abandoning politics anytime soon. They routinely endorse candidates, fund campaigns, adopt policy platforms, and even bargain for political goals. Indeed, those activities have become their main focus. They are less like private bargaining agents, more like political action committees.
This is the labor movement the Webbs envisioned. Voluntarism is dead, and traditional bargaining isn't so far behind it. The future of the labor movement is laden with politics. And given that political weight, it is no longer clear whether our old legal structures can stand.
Note from the Editor: The Federalist Society takes no positions on particular legal and public policy matters. Any expressions of opinion are those of the author. We welcome responses to the views presented here. To join the debate, please email us at info@fedsoc.org.
Originally published by The Federalist Society
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.