Among the starkest divisions in America is public-sector unionization. The rate at which government workers are organized ranges from a mere 7 percent in South Carolina to 67 percent in New York. Underlying those numbers are differences in state laws that restrict, in some places, the right of government unions to bargain collectively. Political leaders in those states have followed the advice of Franklin D. Roosevelt, who famously observed that strikes by government workers would be “unthinkable and intolerable,” and of labor leader George Meany, who said that “it is impossible to bargain collectively with the government.”
Joe Biden would change all of that. If elected president, he would look to pass national legislation requiring state and local governments to recognize and bargain with government unions. No Democratic president supported by a Democratic Congress has ever seriously pushed this idea; it’s among the most radical proposals in a platform that would rewrite much of U.S. labor law, including for government workers. That represents a shift for a Democratic agenda that traditionally focuses on helping private unions rebuild membership. Most of those efforts have proved fruitless, however, as the percentage of workers organized in the private sector continues to decline. Biden seems anxious, by contrast, to solidify his support among government labor groups—even as Donald Trump has flirted with private-sector unions, especially in blue-collar trade occupations that balk at some of today’s Democratic agenda.
Central to Biden’s outreach to government unions is his support of the Public Service Freedom to Negotiate Act, proposed in the aftermath of the Supreme Court’s decision in Janus v. AFSCME. That ruling limited the ability of states to require workers to pay fees to government unions that they didn’t want to join. Biden’s legislation, however, would require all states to recognize any union chosen by a majority of employees and, crucially, bargain with it over wages, hours, and “other terms of employment.” By contrast, today, some 20 states either forbid bargaining or limit it to just some public unions. In its support for the bill, the Biden camp notes that unionized local government workers earn, on average, 35 percent more than government workers who aren’t unionized. That pitch may appeal to government workers, but it could equally serve as a warning to residents of states that prohibit public-sector collective bargaining about what could happen if Biden wins and succeeds in expanding organizing rights.
Biden promises to undermine or blunt the impact of Supreme Court rulings that have eroded public-union power. In 2014, the court ruled in Harris v. Quinn that a government union couldn’t collect dues from home health-care workers because they were employed by patients, not the state. In 2018, the court went further in the Janus decision, ruling that state laws that forced nonunion government workers to contribute to a union violated workers’ free-speech rights. Even with these rulings, union-friendly states crafted ways to keep the money flowing by, among other things, making it difficult for workers to opt out of payroll deductions of union fees.
The Trump administration has tried to stop the skim in one significant area: Medicaid payments to workers. Last year, the administration ruled that the Social Security Act prohibits government from sending money to anyone except health-care providers, so states couldn’t deduct dues for unions. Instead, the administration ruled, they now need to collect the money directly from their members. Biden has promised to reverse that ruling, which would keep the money flowing to unions. His agenda also says, more vaguely, that he would seek “federal solutions” to allow workers in occupations like home health care to organize and bargain collectively. Just how he would do that after the court’s Quinn ruling is unclear.
Biden’s labor platform doesn’t ignore the private sector, but it includes ideas that Democrats had in their power to pass when they controlled the White House and Congress but failed to do. Why Biden would proceed where other Democrats, including Barack Obama, have refused to go is something that he’d have to explain. Biden says, for example, that he supports unionization by card-check—the process whereby a union can be certified to represent workers merely by getting the workers to sign a card saying they favor being organized. Democrats pushed card-check during the early years of the Obama administration, in which Biden served as vice president, when the party controlled Congress. But Democrats from moderate and conservative states blocked it, arguing that the traditional method of organizing through a secret ballot was more democratic.
Another Biden agenda item should draw even more skepticism from unions. He’s proposing to ban state right-to-work laws, which would entail revoking a portion of the 1947 Taft-Hartley Act—originally passed over the veto of Harry Truman because of crucial votes from House and Senate Democrats. Since then, numerous Democratic administrations—bolstered by a party-controlled Congress—have declined to end right-to-work laws, which have become more popular. Today, 27 states allow workers to opt out of joining a union—even if their workplace has been organized. In the last eight years, five states have joined the right-to-work movement, and polls show broad support among Americans for the idea of not requiring workers to join a union.
For the general public, the most controversial of Biden’s private-sector proposals might be his backing for a federal law similar to California’s Assembly Bill 5, which classifies many independent contractors as permanent workers of the employers that pay them and thus potentially eligible for labor organizing. AB5 has caused widespread confusion and anger in California, forcing publications to stop hiring freelance writers because many are now considered full-time, and prompting everyone from tutors to jazz musicians to horse trainers to lose work from employers who can’t afford to pay them as permanent employees. The union-friendly law assumes that freelance workers are being exploited and would rather convert to full-time. But one poll, taken by Contently, a website that provides resources to gig workers, found that three-quarters of freelancers don’t want to be forced into full-time status. That’s made the law deeply unpopular in a state otherwise strongly liberal. “My entire political mindset has changed drastically following the enactment of AB5,” Cathy Hertz, a freelance copyeditor, told City Journal earlier this year. “Now I feel that the rights of entrepreneurs are being stifled, trampled upon, violated. Free enterprise is one of the main pillars of modern democracy.”
The AB5 controversy is a reminder to Biden: what wins you union support in an election isn’t necessarily a winning political strategy.
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