What can the left "trade off" to get labor law reform?
Organized labor's down to 7.4 percent of private sector workers. The big split, between the AFL-CIO and Change to Win, failed to bring on a new golden age of organizing. It seems the only hope is a new labor law.
And labor has a dream bill: the George Miller-authored "Employee Free Choice Act." It has more than a dozen Senate sponsors -- Kennedy, Clinton, Obama, all the party's big guns. It might really work. It would make U.S. labor law like Canada's, maybe even stronger. It would let employees get unions just by signing cards -- without having to run what can be a four- to five-year gauntlet of lawsuits, firings, intimidation, and all the bells and whistles of union-busting campaigns.
How big would it be for the left?
How about, it's the last chance to rein in the plutocracy and curb inequality. How about, nothing else but this bill will help out working families -- not more college loans, not more college B.A.'s, nothing but a change in the way we set wages. (In Working Under Different Rules, two Harvard economists showed a correlation between union wage setting and income equality in a study of twenty developed countries.) If it's all true, wouldn't it be worth a lot to get?
I know, it seems hopeless. In the Senate, Democrats are far short of a "60-vote" majority. Though one Republican (Arlen Specter) is a sponsor, the Democrats would hit a wall at least by 53 votes -- maybe even by 43 -- once the lobbies had done their ravaging. Even if it passed, Bush would veto any bill.
So there is no way to cut a deal -- unless business itself wants one. Of course, at first glance that seems even more impossible. What could business ever want so badly in return? Long ago, back during the time that labor started its decline, there was lots of talk about just such a "deal," a quid pro quo. But by 1976, and certainly after, there was nothing labor had, or nothing business wanted, for there to be any kind of deal.
Yet it turns out that, by wild good luck, there is now something that every CEO, every CFO, every global high-flyer in every one of the fifty states -- everyone who has ever done a deal on Wall Street -- really, really wants.
It's to call off Sarbanes Oxley.
Not necessarily repeal the whole thing; just the part of it that might throw these guys in jail.
So when I say they want it, I mean they want it in a way they don't "want" free trade, or even a spiking of the death tax. They want it in the way they don't want to be Ken Lay.
They want to live. And that's what labor has to offer.
Now, it's true it's also about money. Treasury Secretary Hank Paulsen is worried that with Sarbanes Oxley in place, Wall Street (New York) is losing to its evil twin The City (London). It turns out the Russians and others who are flush with oil money don't want to pay for the audits of the books that Sarbanes Oxley now requires. Even more, they don't want to sign the financial forms that say, under penalty of perjury, that they swear everything is true, there is nothing off the books, there is no bank account in the Cayman Islands, and if they're wrong they agree to go directly to jail.
Under Sarbanes Oxley, not only do the CEOs have to take an oath that all their numbers are honest, but -- to add to the injury -- they have to pay for the very outside audits that determine if they are lying and need to explain themselves to a federal grand jury.
The law is so onerous that even the Democrats will cut it back, at least to some degree. And while the changes being proposed are moderate and even sensible, they will of course end up much more sweeping when the doors close and they draft the final bill. No one wants a return to massive fraud, but CEOs and CFOs have grown up in a culture where people don't so much cook the books as lightly sauté them every year. They want to go back and do what they used to do before. And they want to be able to do it without doing federal time.
So this bargain would really be a new social contract: we let you do what you did in the 1990s, and we get to do what we did in the 1950s.
Barney Frank in the House has actually indicated he might be interested in a potential grand bargain along these lines -- so it's not completely crazy. Still, I can hear the chorus on the left: "Oh, but Sarbanes Oxley is a great reform." Of course it is. It's probably the most imaginative piece of legislation Congress has passed in the last three or four decades. The genius of Sarbanes Oxley is that it goes around the SEC and the federal bureaucracy to re-invent the corporation as something that blows the whistle on itself. It would be a tragedy to gut Sarbanes Oxley, as I propose.
But I'd do it gladly to get a labor movement back.
There are other objections: "The stockholders will be hurt." Labor doesn't represent the stockholders. Besides, sooner or later, Sarbanes Oxley will come back. Sooner or later, CEOs will end up in the same mess again, and they will have to bring back Sarbanes Oxley just to restore public trust. Remember: who put in Sarbanes Oxley? It was not the Democrats -- it was not the left. It was Bush and the GOP who put in place the toughest "anti-business" law that any Congress ever passed.
Even if gutted today, Sarbanes Oxley will likely come back -- in a new version, maybe a worse one or at least clumsier -- to deal with the next round of scandals. It's still worth a swap now, purely for the net incremental gain of social justice
Objection: "The Democrats would never propose such a bargain." But not all Democrats have to propose it. We only need forty senators to filibuster the coming changes in Sarbanes Oxley unless labor gets its bill. They need only say: "Yes, we want to give you relief on Sarbanes Oxley. Just sign off on this bill."
Objection: "Oh, but the wingnuts, the ideologues, the libertarian posse, they'll never agree!" No, but we're talking to the banks, to big business. When there's money at stake, the ideologues don't matter. Otherwise we would have invaded not Iraq but China.
Objection: "Oh, but the CEOs, they'll walk away. They won't take the deal." Let them walk away. They may turn around. After all, some in business will be smart enough to calculate that in 2008 the Democrats might get back in the White House. Think of all those Democratic U.S. Attorneys. If Sarbanes Oxley is a worry with Bush's people in, imagine what it will be like when the prosecutors are being picked by Clinton, or Obama, or maybe John Edwards. Even if they won't actually be on the left, prosecutors love nailing these guys with their super salaries. It's a lawyer thing. They hate business people, deep down, for making more money and not being as smart.
Sarbanes Oxley does have excesses, and a good argument can be made (even from the left) for getting rid of that oath requirement. But that barely even matters given what this bargain might offer for labor and the left.
These CEOs grew up cooking the books, just a little. It's how they came of age as businessmen. It's how they express themselves artistically. I wonder how many wake up at 3:00 AM and think, "I wish I were young again." Do they really want to go on signing those statements every year under penalty of perjury? I think I'm an honest guy, but I'd hate to swear an oath.
"But they'll never agree to a swap; they'll just walk away." Maybe they will.
But ask Skilling and the rest. There are worse things in life than dealing with a union.
Thomas Geoghegan is a labor lawyer in Chicago. His most recent book is The Law In Shambles.
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