Legal Commentary

While the bloggers here and elsewhere (including myself) are focused on the entertaining but practically irrelevant issue of Sotomayor?s nomination, the really big legal news has been largely ignored by law prawfs. Last week, the Employee Free Choice Act of 2009 (better known as the ?card check? legislation) was pronounced dead. Labor could not rally enough Democrats and moderate Republicans to win cloture in the Senate. In particular, Arlen Spector and southern Democrats with lots of non-union businesses like Wal-Mart apparently refused to budge on the bill.

This is extraordinary news, given that EFCA was Labor?s most urgent agenda item. That Labor could not swing the Senate to cloture with an overwhelmingly popular Democratic President and a dilapidated Republican Party speaks volumes for ? well, what? The spectacularly unresponsive procedures of the Senate? Or the remarkably marginal influence of labor in the modern American politics? Or both? As I have noted in an earlier post, I am genuinely ambivalent ? indeed, schizophrenic -- about EFCA. Fostering a perhaps sentimental Arendtian attachment to participatory democracy, I like the idea of reviving workplace democracy from the clutches of employer coercion. I am not sure, however, that genuinely non-coercive democracy is possible in the economic sphere: There is a non-frivolous argument that the ?card check? would substitute one form of (union) coercion for another (management) version.

But, regardless of what one thinks of EFCA, it is simply astounding news ? far more significant than anything Sotomayor-esque -- that this Congress and President could not get Labor?s biggest agenda item through the Senate. If not now, when? After this labor debacle, I?d say the answer, for better or worse, is ?never.? One is left with the sense that Labor remains politically moribund. But maybe there is a different story?