Celebrating Bribery, Extortion, and the End of the Secret Ballot

Mark of New Jersey

Mark is a Founding Editor of The League of Ordinary Gentlemen, the predecessor of Ordinary Times.

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38 Responses

  1. Marshall says:

    Really, there is a moral problem with card check. I heard this exact same argument from one of Bush’s appointee’s to the Department of Labor. The heavies coming down on the poor benighted worker. It doesn’t matter that really what we are talking about is competition from two different groups. It doesn’t matter that any moral argument made about t he force that neighbors and friends and acquaintances can use is hypothetical while the force that companies use on a regular basis to intimidate workers is reality.

    Anyway card check is possible if the company decides that it doesn’t want to fight the unionization process. All this does is instead of give the company the right to decide which process the union needs to use the union gets to decide. The only “moral problem” anyone could have with that is to think that unions are immoral.Report

  2. Marshall:
    I’d say the problem I’ve identified is more than hypothetical – it’s human nature. Either way, to imply I’m being reflexively anti-union when I’ve proposed a solution that would both strengthen unions and be morally acceptable in my mind is a bit silly, I think.Report

  3. Joseph says:


    What I find so perplexing about the Anti-EFCA arguments proffered by libertarians, such as yourself, and conservatives is the the complete disconnect to empirical data. Whenever card check comes up, the charge of worker intimidation is not far behind. But not by the company against the employee but, counter intuitively, worker against worker.

    As if we live in some time period in which unionization was wide spread and these organizations used their mob like power to compel workers to join. Except that is not the actual situation.

    Empirically, what you find, is that employers will engage in a whole range of highly illegal activities from harassing unionizers to firing them. Then, assuming the workers can actually unionize and the employer doesn’t shut the business down, the company can just flat out refuse to bargain with the union. The employers do this because from management’s economic perspective it is cheaper to engage in illegal activities then it is to allow a union to form.

    That’s the current economic situation that card check takes place in. Fundamentally, this isn’t about “workers rights” as about whether unionization is a good or bad thing. EFCA would make it easier to form unions. Unions like that, many workers like that, employers hate that. Are you so naive to think that employers opposition to unions is rooted in their deep seated concern for the well being of their workers?Report

  4. Joseph: I don’t deny that employers are more likely to be charged with unfair labor practices than unions (though I have problems – big problems – with the free speech concerns created by the way unfair labor practices are defined for both unions and employers). Hell, I personally even think that the pendulum in our labor laws has swung too far in the direction of the employer – as I’ve noted previously, private sector labor union membership is only about half of what it was even before the NLRA was passed. But the solution to that problem isn’t to create a new law that mandates elections that would be considered fraudulent in any other circumstance; the solution is to eliminate the cause of the harm.

    And I do not think that employer opposition to unions or EFCA is based in the concern for the well-being of employees. What I do know is that my personal objections to EFCA are rooted in my moral sentiments; what I also know is that I have proposed something that could and would achieve substantially the same result as EFCA in a manner that no one could consider illiberal or anti-democratic.

    I also know that, believe it or not, I don’t have any objections to unions and that I think there are a lot of unions that are actually quite good. I even once interned in the legislative affairs shop of a union. It frankly frustrates the hell out of me that there is this belief that anyone who opposes EFCA does so only because they hate unions and that there are no valid reasons to oppose it.Report

  5. Freddie says:

    There’s a lot to say here, and I disagree with you on almost everything, but I’ll limit myself to this– if you think that a political organization promising to support a candidate in an election in return for his voting one way or another on a piece of legislation is bribery, then I think you need to move to a small island in Micronesia. Are you really going to suggest to me that you don’t think that this happens all the time? That it isn’t a plain and simple part of what has become the process? That the NRA, AARP, AIPAC, et al., don’t do precisely this? Come on, Mark.Report

  6. Freddie:
    What’s illegal here is that it’s an explicit rather than merely implicit quid pro quo. Now, you are absolutely correct that other interest groups most likely make explicit quid pro quo’s fairly often (though in my experience it’s far less regular than people think). But when they do, they’re not stupid enough to publicize it as such, which makes it really difficult to prove and utterly not worth a prosecutor’s time. Here, they’re publicly acknowledging the quid pro quo and thus have made the prosecutor’s case for them. I don’t necessarily expect any prosecutions – going after a powerful interest group that supports a popular President is usually not a good way to make one’s career, and prosecutions based on campaign donations are extremely rare to begin with. Plus there’s the obvious problem that there hasn’t yet been an exchange of “something of value” such as a campaign donation or a phone bank, etc. But once the transaction is complete, the explicit quid pro quo makes it bribery and/or extortion. But the key thing is the explicitness of the quid pro quo – if it was merely an implicit quid pro quo or if it was an explict quid pro quo that was kept secret, there wouldn’t be anything worth getting upset about.Report

  7. Bob says:

    From the Liberation Party Platform of 2008,

    “2.7 Labor Markets

    “We support repeal of all laws which impede the ability of any person to find employment. We oppose government-fostered forced retirement. We support the right of free persons to associate or not associate in labor unions, and an employer should have the right to recognize or refuse to recognize a union. We oppose government interference in bargaining, such as compulsory arbitration or imposing an obligation to bargain.”

    Notice these words, “…and an employer should have the right to recognize or refuse to recognize a union.”

    It’s clear that librarians see capital always trumping labor. Unions are anathema.Report

  8. Bob:
    Huh? I frankly don’t care what the Libertarian Party platform says, which has exactly zero to do with the alternative I am suggesting.

    Taft-Hartley was an almost exclusively pro-business, anti-union law. Prior to its passage, union membership in the US was at an all-time high. And while that was because the NLRA (which was almost exclusively pro-union) pushed the envelope too far in the other direction, it’s pretty clear that Taft-Hartley was an over-correction of the NLRA. A partial repeal of Taft-Hartley would go as far or further towards giving unions greater bargaining power than would the card-check provisions of EFCA.Report

  9. Alan says:

    I strongly disagree with the assertion that this is bribery under federal law. First, the statement in your links is not an explicit quid pro quo. Here’s what the AFL-CIO government affairs director said:

    “Given that this is labor’s number one priority, it is very likely that the state AFL-CIO in any state, which is where endorsements are made, would stick by any Senator, Democrat or Republican, who supports the Employee Free Choice Act.”

    Note the term “very likely”, and not limiting it to Specter. Furthermore, note that he specified that the decision is made by the state AFL-CIO, not the national one, and he was merely stating what is likely to happen.

    I also believe that applying the statute as strictly to political campaigns as you do would be unconstitutional under Supreme Court precedent. The very purpose of political organizations is to attempt to get people elected for voting in their interests. Courts have found a limited free speech protection in political contributions. But even without that, your interpretation of the federal bribery statute would prohibit campaigning or even endorsing a candidate for voting a certain way on a bill, if announced ahead of time (which is the preferred time to do so, if the intent is to influence the legislator’s vote).

    The statute prohibits “corruptly” (and I don’t believe this situation is corrupt) offering “anything of value” to influence the political process. An endorsement may be a “thing of value” and I believe prohibiting an endorsement is a violation of free speech.

    To try an analogous case, suppose the National Right to Life Committee stated that the Human Life Amendment was their number one priority and that they would back any Senator who voted for it. Maybe they even specified one wavering Senator as an example. Would that be prohibited? Would it be prohibited if they simply said they would endorse that Senator? What if they just generally said they would support any Senator who switches from pro-choice to pro-life?Report

  10. Bob says:


    Huh? I did not say at any point you supported that position. I quoted, in full, the Party statement. It seems extreme to me, no matter how unions are organized, capitol remains in charge.

    You may be pro union but throwing around a charge of bribery directed at AFL- CIO in their attempt to gain support for their position is mudslinging at best.Report

  11. E.D. Kain says:


    It’s clear that librarians see capital always trumping labor. Unions are anathema.

    You leave those poor defenseless librarians alone! What did they ever do to you?Report

  12. Alan:
    This is the quote I’m referring to:
    “The labor strategist tells me that top AFL-CIO officials have told Specter they’ll back him to the hilt if he supports their top priority.

    “If Senator Specter supports working people — particularly voting with us on Employee Free Choice — the AFL-CIO will support him 100 percent of the way, whether in a primary or a general election,” the strategist says.”

    That’s a pretty explicit quid pro quo. I agree that what the AFL-CIO GA director said is perfectly ok. But the quote above goes pretty far beyond that.

    As for the issue of whether campaign contributions can form the basis for a bribery or extortion charge, consider this language from McCormick v. United States:

    “This is not to say that it is impossible for an elected official to commit extortion in the course of financing an election campaign. Political contributions are of course vulnerable if induced by the use of force, violence, or fear. The receipt of such contributions is also vulnerable under the Act as having been taken under color of official right, but only if the payments are made in return for an explicit promise or undertaking by the official to perform or not to perform an official act. In such situations the official asserts that his official conduct will be controlled by the terms of the promise or undertaking. This is the receipt of money by an elected official under color of official right within the meaning of the Hobbs Act. ”

    As for the free speech issue – that’s not really relevant here. The problem isn’t the speech itself; it’s the fact that the speech is made explicitly and solely because of a bargain driven between a legislator and an interest group. The issue of whether an endorsement alone can be “something of value” for purposes of the bribery statute is questionable; but the way this is described, we’re not just talking about a mere endorsement here. We’re talking about supporting a Senator “to the hilt,” which would mean phone bank support, independent expenditures, and direct campaign contributions in addition to a simple endorsement.Report

  13. Bob:
    It’s not mudslinging to accuse someone of committing an act that they freely acknowledge they’ve committed. Whether that act is bribery, extortion, or nothing at all is a legal question; the law I’ve studied on this issue tells me that this is absolutely prosecutable under the Hobbs Act and the bribery statute.Report

  14. Gary says:

    Specter is pretty much a Dem in elephant clothing anyway, but he did write a paper for Harvard this past summer (which I link on my LaborLawGuy blog at wordpress) in which he exposed card-check ruses. “Sign here and we’ll send you some information on our union” is one such ploy. And though they accuse business owners of intimidation, intimidation is the exact tactic these union thugs excel at and use 24/7. (I worked for a union for several years once by some strang twist of karma.)Report

  15. David says:

    Mark – you might be interested to read the recent article in Washington Monthly that proposed a solution kind of like the one you were looking for: namely, it hinted that maybe Dems will extract the rest of the EFCA from Republicans if they agree to drop card check. The article makes the case that card check isn’t all that important anyway, what impedes unionization is the lack of enforcement of Section 7 rights because fines for Unfair Labor Practices are so small. Raise the fines and stop the union-busting, and the unions won’t need card-check.Report

  16. Chris Dierkes says:


    As someone who lived in Micronesia for a year of my life (and pretty much all the islands there are small to Freddie’s point) I can tell you it’s very nice. Though sadly there is just as bad (if not more relative to context) shady political deals going on there. It’s really great if you are a diver.Report

  17. Alan says:

    First, McCormick v. United States deals with direct campaign contributions rather than independent expenditures. With independent expenditures, a Senator would arguably not be given anything at all, since he or she would not be in control of it. Furthermore, McCormick deals with extortion, under a separate statute, not bribery.

    But the free speech implications of your interpretation should be readily apparent with the following example. Suppose (and I bet this has already happened), there is an organization of card-check opponents who publicly stated that they will campaign and run advertisements against a Senator who votes in favor of that legislation. Is that extortion by your standards – attempting to force a Senator to vote against that legislation? What’s the difference between that and the other side? But assuming that’s permissible, you’re saying that the two sides in a political speech are unevenly matched under the law. Organizations may state they can campaign and advertise against a Senator who votes for a bill, but cannot state they will similarly support a Senator who votes for a bill. That’s direct interference with core political speech.Report

  18. Alan:
    The independent expenditure issue may or may not be a “thing of value.” If it’s coordinated, it’s not really independent, though. But again, we’re talking about supporting a candidate “to the hilt,” which entails all sorts of things – including direct contributions and volunteer work that would clearly be “something of value.”

    As for the free speech issue – look, the problem here is that we’re not talking about a public announcement that an organization will generally support or oppose a candidate if he does something. What we are talking about here is an admission of a back-room offer of a quid pro quo. From the article:

    “Senior officials with the powerful AFL-CIO have privately assured GOP Senator Arlen Specter that they’ll throw their full support behind him in the 2010 Senate race if he votes for the Employee Free Choice Act, a senior labor strategist working closely with the AFL on the issue tells me.”

    What makes this illegal and “corrupt” within the meaning of the law is the back-room nature of it.

    I have to add, though, that I’m fully aware that this stuff goes on all the time behind closed-doors. I’m also fully aware that it never gets prosecuted. But that’s because the DOJ has little incentive to prosecute most of this stuff since proof of an explicit quid pro quo is almost impossible to come by and most of it would be really minor and ticky-tack (stuff like agreeing to honor a Congressman with an award in exchange for his casting a particular vote).

    And yes, I’m aware that McCormick applies specifically to extortion under the Hobbs Act – which is why I specifically referred to the Hobbs Act in my post. However, as far as I know (and perhaps a white-collar criminal defense attorney could help me out here since it’s been a few years since I dealt with the bribery statute), the logic of McCormick’s Hobbs Act analysis, ie, that explicit quid pro quo’s are prohibited, would also apply in a bribery context.

    Simply put: under federal law – and most state laws (Oregon, I believe is a definite exception) – it is considered bribery if a person tells a politician that they will make campaign contributions and/or provide something else “of value” if the politician votes for or against a specific piece of legislation.Report

  19. Freddie says:

    Again– you’re taking the AFL-CIO to task for making explicit a practice that you admit is common. Isn’t that weird? Look, lobbying and interests groups hinging their support of a politician based on a particular bill or issue isn’t fraud. It’s democracy. It’s common. Not “it happens sometimes” common, but “it happens every day” common. What on earth is the difference between the AFL-CIO saying that their support of Specter is dependent on his position on card check and AIPAC saying that their support of a politician is dependent on his position on Iran? Or the NRA’s support being dependent on a politician’s position on an assault weapons ban? That’s how democracy works– people, or organizations, support politicians with their votes, voices and money based on the degree to which those politicians represent their interests.

    Now you can question the purpose and effects of lobbying groups or constituent groups pledging their support to a candidate in exchange for particular votes, but if you were going to do so, you’d have to tear the whole house down. You’d have to attack the NRLC for only supporting politicians who voted for the partial birth abortion ban. You’d have to attack NARAL for only supporting politicians who voted against it. You’d have to attack every lobbying and special interest group in the country that has tied their support to certain pieces of key, defining legislation. To only criticize the AFL-CIO and Arlen Specter for this, when it’s the basic reciprocal arrangement of American politics, isn’t fair.Report

  20. Bob says:

    From “The Progress Report” March 11, 2009. Via Think Progress.

    “MEDIA EMBRACES FAR-RIGHT DISTORTIONS: Big Business’ anti-union campaign has effectively influenced Hill conservatives’ rhetoric. Sen. John McCain (R-AZ) called the bill “a threat to one of the fundamentals of democracy,” while Senate Minority Leader Mitch McConnell (R-KY) called it “an outrageous proposal” that would “fundamentally harm America and Europeanize America.” These anti-union tropes are also constantly repeated by the media. Fox News’ Chris Wallace adopted the right-wing framing earlier this year, stating that “Big Labor’s top priority is what’s called union card check, and that would be eliminating the right to a secret ballot.” Despite the fact that the “secret ballot” canard has been endlessly debunked, media outlets continue to push the misconception. On Fox News, Forbes’ Mike Ozanian called EFCA a “pro-slavery bill”, while his coworker John Rutledge said the bill is “a gestapo tactic.” Fox’s Glenn Beck likened the bill to “tyrannies and socialism.” Fox has also allowed “economists” and commentators to slam EFCA on air without noting their ties to industry groups that oppose the bill. The right insists that union bosses are intimidating workers, when in fact the evidence shows that it is the employer who most often threatens and pressures workers over unionization.”

    Well at least you limited your critism to criminal activity.Report

  21. Freddie:

    Look – just because it’s common doesn’t make it morally correct. So I think celebrating it is a bit unethical, regardless of whether it’s legally bribery.

    What takes this beyond the realm of simple shady, everyday politics and into the realm of illegal – and prosecutable – activity is the public acknowledgement of an explicit quid pro quo that involves an exchange of “something of value.” If what was involved here was a mere promise of an endorsement, which is arguably not “something of value,” I wouldn’t have written this; but when I read the words “to the hilt,” that means to me a promise to do anything and everything, including campaign contributions, in-kind contributions, and volunteer work – all of which are pretty clearly “something of value.”

    But I’ve never applauded or celebrated a back-room quid pro quo, illegal or not, and I think it’s morally wrong to celebrate such a quid pro quo, illegal or not. Trust me – if something similar gets reported involving another interest group and I see people celebrating it, I will denounce that as well.

    And all of this is separate and distinct from my legal opinion on this. To be perfectly blunt, I’m not entirely sure that this “should” be a prosecutable offense; but as I have long understood the law, this would definitely qualify as an act of bribery or, if accepted by Specter, extortion.Report

  22. David: I remember reading that article – that would be a compromise that I would certainly be okay with, although I think the partial repeal of Taft-Hartley would be better for unions.Report

  23. Dave says:



    It’s not a matter of economics as much as it is a police power question and an aversion to special interest legislation in general. I know it’s easier to just assume we hate unions but the truth is a little more complicated. Sorry to burst your bubble.Report

  24. Dave says:


    Whic provisions of Taft Hartley?Report

  25. Dave:
    The prohibition on various types of strikes, especially on secondary boycotts, which I think are (or at least ought to be) violations of the First Amendment. The prohibition against closed shop agreements (right to contract!!!!!). The Lochnerian in me says that Right to Work laws are due process violations; there are federalist arguments for allowing those laws, but I don’t find them persuasive since the feds have “occupied the field” with respect to most of the rest of labor law.

    So those are three things I’d be interested in repealing.Report

  26. Bob says:

    Dave, no problem. My bubble is as intact as yours. But sorry to burst your bubble that you burst mine.Report

  27. Bob says:

    Dave, I guess I’m not the only one making typing errors. LOL. “Whic provisions of Taft Hartley?”Report

  28. Dave says:

    I want to be like the cool kids.Report

  29. Bob says:

    Every boy should have a goal. I’m very proud of you.Report

  30. Marshall says:

    Maybe your not reflexively against unions and maybe my statement was hyperbolic. But there doesn’t seem to be much chance that any portion of Taft Hartley will be rescinded. So I didn’t take that as a particularly important statement as to your pro-union sentiment.

    I’d argue it this way.

    If there are only a limited number of actions that can credibly be taken at a given time and one of those actions is beneficial for something (Action A) and the other is detrimental (Action B), because it forecloses on that action in the future and possibly any other further action, then it makes sense to characterize the position for Action B as against whatever it is detrimental to.

    Not passing EFCA would be detrimental to unions. To be Against EFCA, irrespective of your position on other beneficial actions, would be for something detrimental to unions. It seems very easy then to say that you are against unions.

    Also, what you are describing as a moral problem is peer pressure. Do you think there isn’t peer pressure in the upper ranks of ceo’s and boards to never let a union into your company. Do you ever think that there isn’t golf game invitations dropped, parties not invited to because you let a union into your shop. Don’t you think your stock my fall a bit because the big boys all drop it at once. Is that immoral? But it happens and will continue to happen. f

    So why worry so much about card check. Its not something new. Like I said that company can already accept a union on the basis of a card check.Report

  31. Dave says:

    Like I said that company can already accept a union on the basis of a card check.

    A company is not required to under current law. They can request an election to confirm the results. Under the EFCA, that option is gone. I’m not convinced such drastic action is necessary.

    Marshall, the problem with your logic is that you propose an either-or scenario and assume that A is the only course of action that is beneficial to organized labor. This is typical of EFCA proponents who feel that the current system is so out of whack that the solution is to prevent employers and the NLRB (at the employer’s request) to verify the results of a card check. It would remove a longstanding and accepted practice of using secret ballot elections to gauge the true intentions of workers.

    In all fairness, it does open up the possibility for employers to engage in unfair labor practices, and this certainly happens to some degree. Even if there a whole host of activities deemed to be unfair labor practices and a system in which union organizers can (and often do) file complaints with the National Labor Relations Board, given what I’ve seen, there could be problems with underenforcement or with penalties not being stiff enough.

    Why not start here? Why not review and revise, if necessary, what does or does not constitute unfair labor practices and substantially increase the penalties to where these actions can be seen as a deterrent?

    Although it gets into an area in which I get a little more uncomfortable (because of First Amendment implications and my own libertarian misgivings but we’ll set those aside), I’d be willing to put on the table, at least for this discussion, additional regulations governing the ability for both labor unions and employers to present their viewpoints. Do we address this by allowing union orgainzers to enter worksites? In theory, I suppose it’s a possibility but I haven’t thought through the logistics.

    I don’t think supporters of EFCA have provided a convincing enough argument that the remedy they propose is necessary given the problems that they have cited to justify passing this law. Organized labor knows better than to go that route if it wants the highest possible chance to unionize several million service workers. The fastest way to do it is to create a regulatory regime heavily tilted in their favor. Amending the current process, even if the process is considered a fair one, will not achieve that objective.Report

  32. Marshall says:


    EFCA does have the penalty increases that you talk about. The problem is that Labor is not sure that even those penalties change the calculus for the company but those are the penalties they think they can get.

    I propose an either or because I don’t think things like repealing parts of taft hartley is going to happen or even on the horizon. At this point in time the game is EFCA. There doesn’t seem to be another game. Its true that there are a lot of other things that can be thought of to help unions. But I haven’t seen any legislative action on them.

    The way I look at it, Secret Ballots are the companies friend. They get to delay the unions certification and then harrass all of the workers for a couple of weeks or months until the thing happens and low and behold the union doesn’t win.

    There is nothing sacrosanct about secret ballots. In the early years of the United States there was really no such thing as a secret ballot. People thought only wimps would want a secret ballot, what have you got to hide, they’d say. Now we think differently but that doesn’t mean its the be all end all of collective decision making.Report

  33. Marshall:

    My point is that I am neither for nor against unions – just as I am not reflexively against unions, I am not reflexively against management. My priority is very simple: I will support that which tends towards a more limited government, and I will oppose that which creates a more intrusive government.

    Moreover, the only reason a partial repeal of Taft-Hartley is not on the table is because unions have decided that EFCA and, specifically, card-check, will do the most to strengthen them. Within the Dem Party and “movement liberalism” labor policy is almost entirely ceded to the unions (much as within the coalition of the Right it is almost entirely ceded to business groups); the result is that other considerations get pushed aside, and the only priority becomes helping the constituent interest group in the specific manner the interest group requests. That there may be alternative ways of helping that interest group that also have the benefit of accomplishing other goals simply doesn’t get considered.
    I might add, though, that I’m not the first person to propose a partial repeal of Taft-Hartley – unions and liberal “public” interest groups* have wanted it for years. They just decided at some point to make card-check a higher priority for whatever reason.

    * There are few things that annoy me more than the phrase “public interest group” – if you lobby for some agenda, you’re an interest group, plain and simple. Every interest group thinks that it has the public’s interest at heart!Report

  34. Marshall says:


    If that is the point then I’ll cede it for now. I in all honesty should not have said that you are reflexively against unions but having heard first hand that argument from a Bush appointed labor department guy who I knew was anti-union predisposed me to hear that argument in a particular context. I still believe to be against EFCA is to be against the future growth and existence of unions as they exist now. If that’s a good thing or bad thing in your head I don’t know.

    I have very little interest in a smaller government or larger government. My concern is how do you set up a stable system. Having huge wealth disparities does not allow for a stable system. Small government, large government if they allow for a system that seems like it won’t devolve into the state of nature then I’m happy.Report

  35. E.D. Kain says:

    I’m still waiting for Bob’s apology to the librarians he so basely criticized.Report

  36. Bob says:

    E.D. – I can not. I’ve been abused mentally by librarians ( L. Bush ) and physically by libertarians.Report

  37. Mike says:

    I could write a great big comment here explaining all the flaws in the EFCA but I’ll keep it simple: It is one of the worst pieces of legislation written in the last half century. If passed it is going to completely change the face of labor in the US and hurt a lot of good companies. And once the damage is done…there’s not much hope of fixing it.Report