On Wednesday, a troubling new report from the Economic Policy Institute (EPI) underscored the weakness in the economy — and in the hopes of Democrats to retain Congress and the White House. The report by Heidi Shierholz looked closely at the five to one ratio of officially counted unemployed workers to available jobs, and pointed out in an especially clear way: “The 5-to-1 ratio means that there is literally only one job opening for every five unemployed workers (that is, for every four out of five unemployed workers there simply are no jobs),” she declared (emphasis added).

"I have both my feet firmly planted on the floor and nothing in my mouth, to speak of," Gibbs told reporters on August 11, and stuck out his tongue to prove it. (Photo by Chip Somodevilla/Getty Images)

She also clarified a common misunderstanding that this figure means that there are only five applicants for any one job. That’s hardly the case, as shown by news stories of hundreds of people waiting in line for  days for a chance to apply for a single union elevator operator job. “Importantly, this [five-to -one] ratio does not measure the number of applicants for each job. There may be throngs of applicants for every job posting, since job seekers apply for multiple jobs,” she noted.

She also explained on Bloomberg News the continuing double-digit unemployment in the District of Columbia and 16 states, devastated by the collapse of the housing market and the downturn in manufacturing.  As EPI’s interactive state economy tracker reports, “New state unemployment data show that while jobs are returning, the pace of recovery remains slow. The June unemployment rate was 14.2% in Nevada, 13.2% in Michigan, 12.3% in California and 11.4% in Florida.”

Despite such figures, the “99ers,” whose benefits have expired are fruitlessly seeking help from Congress as half of the unemployed have been out of work for over six months. This persistent unemployment – even if it would have been worse under GOP policies – accounts in part for the lack of enthusiasm for the Obama administration among progressives. Another major disincentive to work hard for Democrats in November: what they see as a lack of White House willingness to fight for a genuine progressive agenda, ceding too much to right-wing talking points and Wall Street. But Gibbs’ Fox-style attacks on the left as drug-takers pining for a fantasy world without the Pentagon and with a Canada-type health plan are simply smears on the progressive base. Remember, it’s those activists who propelled Obama into office and, as with health care, in most cases reluctantly accepted his centrist deal-making in office.

Jane Hamsher didn’t go along with those compromises, but her concerns about the White House’s open hostility to the Democratic base are widely shared, as ABC News reported:

Jane Hamsher, the founder of the liberal blog Firedoglake.com, told us that Gibbs’ swipe reflects a White House that’s taken the left for granted – inattention that she said could hurt Democratic candidates in 2010 and beyond.

“It went over like a lead balloon – particularly in August when all the members of Congress are back in their home states, campaigning, trying to whip up enthusiasm,” Hamsher told us. “We’re seeing tremendous demoralization amongst the sort of Democratic base.

“Having the White House and [Gibbs] basically call the progressives a big bunch of babies who need to grow up, you know, when their concerns are very valid, probably wasn’t the sharpest political move,” she added.

Columnist Frank Rich argued in yet another trenchant column on Sunday just how much Democrats were threatened by the plight of long-term unemployed workers – and that concern comes from more than just the so-called whining of the “professional left” that Gibbs scorns. Rich points to to the case of a former corporate staffer, 49-year-old Alexandra Jarrin, $92,000 in debt and on the verge of homelessness featured in a Times article on the 99ers.

The polls remain as intractable as the 9.5 percent unemployment rate no matter how insistently the Democrats pummel Bush. To add to Democratic panic, there’s their “enthusiasm gap” with the Tea-Party-infused G.O.P., and the Rangel-Waters double bill coming this fall to a cable channel near you. Some Democrats took solace in one recent poll finding that if Republican economic ideas were branded as “Bush” ideas, the pendulum would swing a whopping 49 percentage points in their favor. But even in that feel-good survey, only a quarter of the respondents were worried that a G.O.P. Congress would actually bring back Bush policies…

But even if the Democrats sharpen their attack, they are doomed to fall short if they don’t address the cancer in the American heart — joblessness. This requires stunning emergency action right now, August recess be damned. Instead we get the Treasury secretary, Timothy Geithner, offering the thin statistical gruel that job growth has returned “at an earlier stage of this recovery than in the last two recoveries…”

The Democrats have already retreated from immigration and energy reform. If they can’t make the case to Americans like Alexandra Jarrin that they offer more hope for a job than a radical conservative movement poised to tear down what remains of the safety net, they deserve to lose.

*This post originally appeared in Working in These Times on August 12, 2010. Reprinted with permission.

About the Author: Art Levine, a contributing editor of The Washington Monthly, has written for Mother Jones, The American Prospect, The New Republic, The Atlantic, Slate.com, Salon.com and numerous other publications. He can be reached at artlevine@inthesetimes.com.

Any meaningful direct job-creation programs for the nearly 15 million Americans who are officially unemployed are also dead for now — despite a damning new report co-authored by the National Employment Law Project showing that it will take years to make up the jobs already lost. As even moderate pundit Eleanor Clift observed, after viewing a liberal panel calling for massive infrastructure programs to boost the economy, “The actual [unemployment] number, far higher than what the weekly stats tell us, is on the way to becoming a permanent feature of the new economy. And while governments scrambled to save banks, there’s no comparable urgency about creating jobs.”

After the vote, Senator Majority Leader Harry Reid vowed to try again when a new Senator from West Virginia is seated in the wake of the death of Democratic Senator Robert Byrd. Even the more Democratic-leaning House of Representatives (!) rejected earlier this week a stand-alone extension on Tuesday, too, although it passed a scaled-down one Thursday. But a new vote vote probably won’t take place until after the July 4th recess when Congress comes back into session on July 12th. If the procedure drags on through July, as a new report co-authored by the National Employment Law Project and Center for American Progress shows, the government estimates that over three million people could lose their benefits.

UPDATE: The House passed a short-term extension Thursday, but it’s too late to make a difference for those who will lose benefits before the full Congress resumes in July.

The key vote on the measure fell one short needed to overcome a GOP filibuster. Senator Reid declared (hat tip to The Washington Independent): “It is beyond disappointing that Republicans continue to stand almost lockstep against assistance for out-of-work Americans — especially since many of these same Republicans spent months protecting Wall Street and preserving tax cuts for CEOs who ship American jobs overseas.”

Politico highlights the political dynamics at work — and they don’t favor progressives or unions:

The death of Sen. Robert Byrd (D-W.Va.) this week and defection of Sen. Ben Nelson (D–Neb.), a fiscal conservative from a low-unemployment state, helped to seal the fate. But more than any other one issue, the impasse over jobless benefits has come to dramatize the Republicans’ almost single-minded focus on deficit reduction as an economic–and campaign–theme this election year.Just two Republicans, Maine Sens. Olympia Snowe and Susan Collins, joined in support of an estimated $34 billion bill to extend benefits through November. Early hopes of getting help from Sen. Scott Brown were dashed Wednesday when the Massachusetts Republican went to the Senate floor with his own alternative — heavily reliant on cutting unspent funds from last year’s giant recovery act.

Yet as the Campaign for America’s Future Dave Johnson points out:

The real deficit is jobs. That is one more of those things that everyone can see in front of their faces, but we’re told it isn’t what it is. There aren’t enough jobs, and we’re being told this is our fault because we wanted pensions and good wages and vacations and respect and dignity and please, sir, just a little slice of the pie.In case you haven’t noticed, the world’s economy is suddenly undergoing a classic “Shock Doctrine”-style, coordinated propaganda attack. The wealthy and powerful, having insisted that countries cut their taxes and run up debt, now insist that the middle class and poor must work harder, have their pensions reduced, sell off (to them) their publicly-held resources, and take other “austerity” steps to pay off the debt that these lazy, parasitic peasants dared to run up.

It was especially ironic that on the same day that the Senate bowed to the deficit-uber-alles crowd in Washington, AFL-CIO president Richard Trumka was trying to make the case to the President’s deficit commission — whose appointment reflects Wall Street’s conventional wisdom on deficit-cutting — on why expanding jobs and helping the jobless is good for the economy. As the AFL-CIO Now blog reported:

“We must have a job-centered approach to stabilizing the national debt, which would bring us closer to our goal of sustainable, broadly shared prosperity.”To a great extent, the size of the deficit depends on employment and growth. When employment and growth are weak, tax revenues are low and social assistance expenditures are high. When employment and growth are strong, the reverse is true.

He also warned the panel that ending stimulus spending that creates jobs and growth–as many Republican lawmakers are promoting–could send the U.S. and global economy into a double-dip recession, or worse. The Economic Recovery Act, said Trumka:

“did exactly what it was supposed to do. It increased the number of people employed by up to 2.8 million, increased the number of full-time jobs by up to 4.1 million and increased real GDP by up to 4.2 percent in the first quarter of 2010. But it wasn’t big enough.”

The harshest words for the deficit commission — whose ideology is helping fuel the Congressional rejection of jobs creation and unemployment benefits — was left for economist James Galbraith. As Firedoglake reports on his attack on the “cat food commission” (via the Roosevelt Institute):

For a quick snapshot, Galbraith’s testimony is divided into ten sections, which address the following points:-That the Commission’s work is illegitimate

-That current deficits and rising debt were caused by the financial crisis.

-That future deficit projections are generally based on forecasts which begin by unrealistically assuming full recovery

-That, having cured the deficits with an unrealistic forecast, CBO recreates them with another, very different, but equally unrealistic forecast.

-That the only way to reduce public deficits is to restore private credit.

-That Social Security and Medicare “solvency” is not part of the Commission’s Mandate.

-That as a transfer program, Social Security is also irrelevant to deficit economics.

-That markets are not calling for deficit reduction, either now or later.

-That in reality, the US government spends first & borrows later; public spending creates a demand for Treasuries in the private sector.

-That the best place in history (for this Commission) would be no place at all.

Galbraith’s conclusion: “”You are plainly not equipped, either by disposition or resources, to take on the true cause of deficits now or in the future: the financial crisis.”

Neither is Congress, which seeks instead to protect the tax breaks of hedge fund managers while denying unemployment benefits to the jobless and allowing nearly 30 million people to remain unemployed or under-employed.

This article originally appeared in Working In These Times Blog.

About The Author: Art Levine , a contributing editor of The Washington Monthly, has written for Mother Jones, The American Prospect, The New Republic, The Atlantic, Slate.com, Salon.com and numerous other publications. He can be reached at artlevine@inthesetimes.com.

But allowing workers flexible schedules so they can balance their work and family lives isnt just a luxury that should be reserved for flush economic times. As Michelle Obama pointed out at the event that included business and family advocates, “So it’s something that many of the companies here today have discovered, very fortunately, that flexible policies actually make employees more, not less, productive.”

To underscore that point, the White House Council of Economic Advisers released a report that, the White House noted, “discusses the economic benefits of workplace flexibility—such as reduced absenteeism, lower turnover, improved health of workers, and increased productivity.”

Still, there might be a way to combine workplace flexibility with job creation — by adopting the proposal of Dean Baker and others to use unemployment insurance or other funds to help keep people on the job but working fewer hours.

Unfortunately, that sort of approach responding to the clamor for work didn’t get as much attention as innovative ways to promote flexible hours for employees so they can juggle personal and work obligations.  As the Huffington Post’s Dan Froomkin reported:

Two out of three American families are so-called “juggler families,” in which parents are forever trying to balance the needs of their job with the needs of their children.

But many workplaces — and government policies — are still stuck in the distant past, operating as if most families still had a single breadwinner, and someone else to mind the kids when they’re out of school, or the grandparents when they need care.

Once you realize that, there are a bunch of employer practices and policy proposals that suddenly make a lot of sense: Encouraging telecommuting, giving people time off for family emergencies, enabling flexible schedules, allowing employees to swap shifts, and so on…

As part of his push, Obama cited a new White House report which concludes that flexible workplace rules could increase productivity.

But he also cast the need for more humane workplaces in moral terms. “[U]ltimately, it reflects our priorities as a society — our belief that no matter what each of us does for a living, caring for our loved ones and raising the next generation is the single most important job that we have. I think it’s time we started making that job a little easier for folks,” he said.

Even so, feminists and others who have promoted these concepts for years are now sharpening their arguments about the need for making such reforms in hard times. As Ellen Galinsky, president of the Families and Work Institute pointed out, in advance of the conference:

We had a preview of the Forum last week in DC at the Work Life Conference, co-convened by the Families and Work Institute and The Conference Board. Speaking at the conference, Martha Coven of the White House Domestic Policy Council said that some might argue that employees are lucky just to have jobs, that companies have to focus on meeting their payrolls, and that the government needs to get the economy back on track and stabilizing it. They ask, “why workplace flexibility; why now?”

That is a false choice, she countered. Workplace flexibility is something that we have to do not only when times are good, but when times are bad. Workplace flexibility will help our businesses AND our families thrive.

While promoting “flexible workplaces” won’t do anything to stop the distorted GOP onslaught targeting Obama over jobs, he stood up for the imporance of the issue—and made clear its broader benefits.

“Workplace flexibility isn’t just a women’s issue. It’s an issue that affects the well-being of our families and the success of our businesses,” said  Obama. “It affects the strength of our economy – whether we’ll create the workplaces and jobs of the future that we need to compete in today’s global economy.”

As a White House press released noted, Obama has taken the issue seriously enough to place it alongside other intiatives that aim to level the playing field for women — and strengthen out economy by promoting full and fair participation in the workplace:

“Employers, including the federal government, will have to implement flexible work policies if they want to attract the best and the brightest,” said Valerie Jarrett, Senior Adviser to the President and Chair of the White House Council on Women and Girls. ” The President is committed to making sure that the federal government can compete for talent because he knows that good people produce better work, which in turn, leads to better service for the American people.”

*This post originally appeared in Working In These Times on April 1, 2010. Reprinted with permission.

About the Author Art Levine is a contributing editor of The Washington Monthly, and a former Fellow with the Progressive Policy Insititute. He has also written for Mother Jones, The American Prospect, The New Republic, The Atlantic, Slate, Salon and numerous other publications. He is the author of 2005’s PPI report, Parity-Plus: A Third Way Approach to Fix America’s Mental Health System, and is currently researching a book on mental health issues. Levine also posts commentary at Art Levine Confidential.

But a jobs bill has yet to be voted on in the Senate, where it’s likely to be viewed more skeptically and reduced in scope in the absence of a major grass-roots campaign. Political activism becomes even more urgent, because a combination of continuing high unemployment and the transitioning of people in and out of jobs could mean that as many as a third of the workforce could be unemployed or undermployed in 2010, according to Lawrence Mishel, director of the Economic Policy Institute.

That’s why a potentially powerful 60-group liberal coalition, Jobs For America Now!, announced earlier Wednesday, becomes especially important. Its leaders are proposing a far more ambitious $400 billion proposal, based in part on plans put forward in the last several weeks by the AFL-CIO and other progressive and civil-rights organizations.

(The full story of the progressive drive for jobs creation can be read here at Truthout.org.)

There’s no doubt that they face an uphill battle to get ambitious jobs legislation through Congress. There was, after all, that close vote yesterday in the House, right-wing propaganda about the failings of the first $787 billion stimulus (it actually saved or created up to 1.6 million jobs), and the spread of an aggressive “deficit hawk” mentality to conservative Democrats.

Even so, Thea Lee, the deputy chief of staff of the AFL-CIO, outlined the themes unifying the organizations: “Across the country, working Americans are calling for urgent action on the jobs crisis, and this action must be on a scale to match the crisis. We must also focus on fundamentally transforming our economy so we never face this type of crisis again — reforming our labor laws, our trade policy, and our financial system to restore needed balance.”

During the debate over the jobs bill, House Speaker Nancy Pelosi (D-CA) declared on the House floor, “This legislation brings jobs to Main Street by increasing credit for small businesses, rebuilding the infrastructure of America, and keeping police and fireman and teachers on the job. As we create jobs for Americans, we are doing so in a fiscally responsible way. These investments are fully paid for by redirecting TARP funds from Wall Street to Main Street.”

With every single Republican voting no, she defiantly pointed out how far the American economy had come under the Obama administration even as joblessness is still rampant. “There were 740,000 jobs lost in the first month of this year compared to 11,000 last month. We’re on the road to recovery…We’re creating jobs for Main Street, not just wealth for Wall Street,” she said. “This legislation creates jobs, helps meet the needs of those who are unemployed, and puts us America back on a path to prosperity.”

Action can’t come too soon, and our obstructionist legislators would do well to listen to the plight of the unemployed as powerfully described in James McMurtry’s song, “We Can’t Make It Here.” Even though it was written during the Bush era, it’s all too applicable now:

The groups and leaders featured in the press conference call Wednesday before the vote were almost a Who’s Who of American Liberalism. They included the Campaign for America ’s Future; Anna Burger, the chair of Change to Win;, the veteran organizer Alan Charney of the grass-roots advocacy group,US Action, and the coalition’s interim director; Benjamin Todd Jealous, the NAACP President;and Wider Opportunities for Women. The importance of the coalition goes beyond the specifics of their proposals to their commitment to provide grass-roots muscle in all 50 states to push for jobs legislation in the tough struggle ahead, especially in the Senate. And that’s what’s been missing before on this issue: united activism around jobs which could, potentially, have more diverse grass-roots support in 2010 than health care reform did this year.

The importance of the new coalition was underscored by an aide to Rep. Bobby Rush (D-Ill), who co-chairs the bipartisan Jobs Now! Congerssional caucus. The aide told Truthout: “These are the A-List groups. If that coalition steps up to the plate, they’ll bring plenty of resource capacity: polling, lobbying, putting pressure on the usual suspects.” Right now, though, the staffer observed, “Clearly everyone’s focused on pushing health care across the finish line, and that’s not even done. After that, everyone will be talking about jobs, jobs, jobs — at least until November.”

So, despite the narrow vote on Wednesday, there’s some realistic hope that a combination of continuing unemployment, grass-roots organizing and political necessity could push through meaningful jobs legislation — and the Pelosi-backed bill is considered a very good start.

After Wednesday’s vote, union leader Anna Burger declared:

Our jobs crisis cannot be solved by one bill alone. But today the House demonstrated the bold and swift leadership the American people demand. It’s time to provide relief to the millions of workers who get up each morning and scour the help wanted ads in the hopes of finding a good job that can support a family. Congress today made an essential first step to invest in programs to immediately put people back to work…

But our work is far from over. Our leaders must continue to work non-stop to pass a comprehensive jobs agenda that puts millions of Americans back to work today and makes strategic investments to create the jobs that Americans will need in the future.

The biggest differences between the House-passed measure and the progressive-backed proposals are the sheer amount of spending and the absence in the current House bill of public sector job creation targeting hard-hit communities. As described by the coalition, this jobs-creation provision — which could create one million new jobs with $40 billion in federal funding, according to Rep. Keith Ellison (D–Minn.) — is a vital one. The group’s call to action describes its importance:

We can directly create jobs that put people to work helping communities meet pressing needs, including in distressed communities facing severe unemployment. These initiatives must be designed so they maintain existing wage and benefit standards and do not displace existing jobs or simply exchange one group of unemployed workers for another.

The urgent call to action is often at odds, though, with the pragmatic, even cynical, calculations of conservaDems who are worried that big deficit spending could be a potent Republican issue in their home states that trumps joblessness.

Compare the different perspectives. First, here’s what’s at stake for American workers, as described by the Jobs Now! coalition:

An Urgent Call for Action to Stem the U.S. Jobs Crisis

The U.S. unemployment rate exceeded 10% in October for the first time in a quarter century. Over 15 million Americans are able and willing to work but cannot find a job. More than one out of every three unemployed workers has been out of a job for more than six months. The situation facing African American and Latino workers is even bleaker, with unemployment at 15.6% and 12.7%, respectively.

These grim statistics don’t capture the full extent of the hardship. There are another 9 million people working part time because they cannot find full-time work. Millions of others have given up looking for a job, and so aren’t counted in the official unemployment figures. Altogether, over 17% of the labor force is underemployed–more than 26 million Americans–including one in four minority workers. Last, given individuals moving in and out of jobs, we can expect a third of the workforce, and 40% of workers of color, to be unemployed or underemployed at some point over the next year. (emphasis added.)

Despite an effective and bold recovery package we are still facing a prolonged period of high unemployment. Two years from now, absent further action, we are likely to have unemployment at 8% or more, a higher rate than that attained even at the worst point of the last two downturns.

Joblessness on this scale creates enormous social and economic problems–and denies millions of families the ability to meet even their most basic needs. .

Then take a look at the political machinations among Democrats who feel themselves to be vulnerable politically, along with some retiring members who feel they can vote their conscience on behalf of a jobs package. Here’s how The Hill reported their current thinking:

The close votes reflect the growing unease among centrist Democrats that the deficit spending that Congress has undertaken to right the economy is becoming a potent campaign issue.

“We’ve got to indicate we’re serious about the deficit,” said Rep. Gerry Connolly (D-Va.), who voted “no” and represents a Republican-leaning district with low unemployment. “We didn’t cause the deficit, but we have to address it.”

Rep. Brian Baird (D-Wash.), who is retiring from Congress, changed his vote to put Democrats over the top. That signals a potent variable in vote counting next year — retirees who no longer need to respond to traditional political pressures…

Political analysts are closely watching for more centrist retirements. Those members will have no fear of losing committee assignments and can’t be won over with promises of campaign help or other inducements…

But Democrats facing tough re-election fights found themselves trying to determine if voters are angrier about 10 percent unemployment or trillions in deficits.

“My staff is looking at it,” said a newly elected Democratic member from a conservative district as the clock ticked down. “If I can’t make a good case that a lot of money is coming back to my district, I can’t support it. I wish we had more time.”

He voted “no.”

Compare that political calculation with the fear and anxiety gripping America’s unemployed, with half of them reporting depression, panic and heavy borrowing from friends. The New York Times reported this week:

Poll Reveals Trauma of Joblessness in U.S.

More than half of the nation’s unemployed workers have borrowed money from friends or relatives since losing their jobs. An equal number have cut back on doctor visits or medical treatments because they are out of work.

Almost half have suffered from depression or anxiety. About 4 in 10 parents have noticed behavioral changes in their children that they attribute to their difficulties in finding work.

It doesn’t seem that many members of Congress fully understand yet the havoc that’s been let loose in the land because of widespread unemployment. Meanwhile, posturing over ideology continues. They all might benefit if they could listen with open hearts to the plight of those without work in their districts and states, as aptly depicted in the song, “We Can’t Make It Here,” written by James McMurty during the Bush era, even before the meltdown, and unfortunately, it still applies today.

Who is listening to them now?

*This article originally appeared in The Huffington Post on December 17, 2009. Reprinted with permission from the author.

About the Author Art Levine is a contributing editor of The Washington Monthly, and a former Fellow with the Progressive Policy Insititute. He has also written for Mother Jones, The American Prospect, The New Republic, The Atlantic, Slate, Salon and numerous other publications. He is the author of 2005’s PPI report, Parity-Plus: A Third Way Approach to Fix America’s Mental Health System, and is currently researching a book on mental health issues. Levine also posts commentary at Art Levine Confidential

The bill “is a fiscally responsible bill that will cover 96 percent of Americans, end insurance company discrimination and denials of care and equip health care providers with the tools they need to lower costs for families and the country as a whole,” AFL-CIO President Richard Trumka said. “The bill…does not attempt to finance reform on the backs of the working middle class... But we still have a long way to go.”

Speaker of the House Nancy Pelosi (D-Calif.) and other House Democrats gather for a press conference after the House of Representatives passed the healthcare reform bill 220 to 215 late Saturday night. (Photo by Brendan Smialowski/Getty Images)

Indeed, as this blog and other observers point out, the real sticking point in the Senate probably won’t be the public option or even the extreme anti-abortion language passed in the House, but the critical issue of how to pay for the legislation. Will it be by taxing the rich, as the House does, or burdening the middle-class with new taxes and costs? That’s what union advocates and the Congerssional Joint Committee on Taxation say will happen as a result of the Senate’s tax on insurers that offer high-cost plans.

The conventional wisdom in Washington is, as the AP put it Sunday, that the “millionaire’s tax is a non-starter” in the Senate, but grassroots activism by unions, public opinion and the strong backing of the AARP and AMA for the House version all add political clout to the drive to keep the House payment approach alive.

Over at the Daily Beast, Matt Yglesias points out the hurdles to reconciling two starkly different versions of paying for the legislation:

The merits of the two approaches aside, the work of a political compromise will be extremely difficult. The House’s approach seems to have almost no support in the Senate, and wasn’t even seriously considered by members of the Senate Finance Committee. Conversely, the Senate’s approach is opposed by labor unions, and over 150 House Democrats have signed a letter saying they also oppose it. The party leadership, simply put, has very little margin for error when it comes to trying to sort this issue out. A handful of defections from the 219 Democrats who voted in favor of reform last night could probably be made up, but not much more than a handful. And in the Senate, it essentially required Democratic unanimity to pass bills in the face of routine filibustering and solid GOP opposition.

There hasn’t been much rancor around this issue, simply because it hasn’t been in the public view. But it will be soon. How can health-care reform pass if it’s financed by a mechanism that key moderate senators have dubbed a “non-starter?” Alternatively, how can you imagine a universal health-care bill passing with no Republican support over the opposition of the AFL-CIO? Comprehensive health-care reform is closer than ever to happening, but it’s still far from obvious that it will happen.

On top of that important issue, the five-vote majority was pulled together in part by securing the votes of some of the 64 ConservaDems in support of an amendment barring any tax dollars even indirectly subsidizing abortion. It’s the biggest rollback of a woman’s right to choose in decades, and one that could hit low-income women the hardest.

It’s a poison pill that Democrats in individual, GOP-leaning districts had to swallow, but not one that most Democratic Senators can easily accept if they want to avoid primary challenges or low turnout from disaffected Democratic voters in state-wide races. The assumption in Washington is that somehow the hard-line stance in the House bill will be finessed in the Senate, and either defanged or removed in conference.

But some journalists and bloggers say, the hard-line abortion amendment could have been significantly weakened, at least, if pro-choice groups had lobbied harder and more effectively—and if House leadership had taken more seriously  the concerns of pro-life Democrats and the U.S. Conference of Catholic Bishops as a roadblock to reform. 

Now millions of low-income women who might seek to buy insurance with a taxpayer subsidy could find themselves denied the right to access medical care and legally terminate a pregnancy. Pro-life forces were justifiably cheering at this news. But it’s clearly at odds with the spirit and intent of health reform, let alone the Democratic Party platform.

Equally troubling to reform advocates is the slow-down in the Senate and the ominous signals that Sen. Reid sent last week hinting that a final vote in the Senate might not take place until early next year. The Senate bill has been in a form of limbo over the last two weeks; activists believe this impasse needs to be challenged with more grass-roots pressure.

Nor surprisingly, the inside-the-Beltway mentality that declared the public option dead a month ago is still contending that you need 60 votes to pass a bill with a public option. In fact, progressive strategists say, you just need 60 votes to stop a filibuster, and 51 votes using budget reconciliation to pass a bill if cloture can’t be reached. Here’s how the center-right AP’s news analysis frames the issue:

If a government plan is part of the deal, “as a matter of conscience, I will not allow this bill to come to a final vote,” said Sen. Joe Lieberman, the Connecticut independent whose vote Democrats need to overcome GOP filibusters.

“The House bill is dead on arrival in the Senate,” Sen. Lindsey Graham, R-S.C., said dismissively.

No floor debate scheduled

Democrats did not line up to challenge him. Senate Majority Leader Harry Reid, D-Nev., has yet to schedule floor debate and hinted last week that senators may not be able to finish health care this year.

Nonetheless, the House vote provided an important lesson in how to succeed with less-than-perfect party unity, and one that Senate Democrats may be able to adapt. House Democrats overcame their own divisions and broke an impasse that threatened the bill after liberals grudgingly accepted tougher restrictions on abortion funding, as abortion opponents demanded.

The lesson drawn from the House action by the AP’s analyst is: do what’s needed to compromise with your party’s right wing. On the Senate side, that would mean abandoning the public option in practice, and perhaps keeping it in name only with a “trigger” provision that could take years to put in place as 45,000 people die annually because of a lack of health insurance.

SEIU President Andy Stern drew a different lesson from the House victory, as a statement from the union said:

“Real leadership does not govern out of fear but looks at the obstacles facing our country and pushes for bold solutions that live up to our country’s promise. Like the creation of Medicare and Social Security, today’s historic passage of the Affordable Health Choices Act by the House of Representatives will be remembered as a pinnacle moment when Congress showed the courage necessary to live up to our American ideals,” Stern said.

SEIU’s members have been on the front lines for more than a decade in the fight to reach this historic moment. Its two point one million members – nurses, doctors, janitors, nursing home workers, child care providers – spent these years knocking on doors, making tens of thousands of phone calls, and donating their time and money to make sure Congress delivered meaningful reform.

Stern continued, “The Affordable Health Choices Act guarantees quality health insurance is affordable and that the insurance industry can no longer stand in the way of people getting the care they need at a price they can afford…

“We heard enough of ‘No We Can’t’ from the insurance industry, special interests and Republicans today and we will not let them stand in the way of a healthcare system that Americans have fought for nearly a century to realize.”

Stern emphasized that it is “now up to the Senate to lead with the same audacity to guarantee that meaningful health insurance reform does in fact happen this year.”

This article originally appeared in Working In These Times on November 9, 2009. Reprinted with permission from the author.

About the Author: Art Levine, a contributing editor of The Washington Monthly, has written for Mother Jones, The American Prospect, The New Republic, The Atlantic, Slate.com, Salon.com and numerous other publications. He wrote the October 2007 In These Times cover story, “Unionbusting Confidential.” Levine is also the co-host of the “D’Antoni and Levine” show on BlogTalk Radio, every Thursday at 5:30 p.m. EST.

Testifying before the Senate labor and health committee hearing in March, economist Anne Layne-Farrar of the corporate consulting firm LECG warned about the horrendous impact of the Employee Free Choice Act. Its potential to increase union membership from between five and 10 percent, she said, “would result in an increase in the unemployment of around one and a half to three percentage points. These are sizable effects for the U.S. economy.” Earnest and well-prepared, Layne-Farrar cited her study that concluded that 600,000 jobs would be lost in the first year after the Employee Free Choice Act (EFCA) became law. Fox “Fair and Balanced” News, naturally, in its TV report neglected to mention that her “research” was funded by the corporate-friendly, anti-union “Alliance to Save Main Street Jobs.”

Since the report’s publication in March, this statistic has circulated through the media, showing up on MSNBC, CBS News, The Wall Street Journal and, in spades, Fox News. EFCA has been Swift-Boated for purportedly taking away the secret ballot from workers. But union supporters say it will level the playing field, offering workers the choice of whether to form a union either through an election or “card check”­—the majority sign-up of authorization cards. Plus it toughens penalties and mandates arbitration after 120 days if employers refuse to negotiate in good faith.

Yet business interests have used Layne-Farrar’s study and that of prolific legal scholar Richard Epstein of the University of Chicago to tell a different story. Ads citing the “600,000” statistic appeared on Politico and other political insider publications aimed at buttressing anti-union lobbying that targets moderate senators such as Arlen Specter and Blanche Lincoln, who subsequently backed away from the EFCA legislation.

Epstein, by some measures the third-most cited law professor in the country, has issued two major reports and five op-eds for the Wall Street Journal and other publications denouncing EFCA as a job-killing, unconstitutional “regime.” His wide-ranging attack on the pro-union bill for Stanford University’s Hoover Institution was paid for by the same Alliance to Save Main Street Jobs that subsidized Layne-Farrar’s work. In the past Epstein, an extreme libertarian, has attacked minimum wage and unemployment benefits, denouncing such New Deal legislation as unconstitutional “takings” that violate the Fifth Amendment. That is no surprise. Epstein has argued that, historically, sweatshop conditions can only be ameliorated by market forces, not by laws or unions. He told In These Times: “The level of wages will be determined by the intersection of supply and demand…the escape from that system is not driven by unions, which cannot increase productivity.”

Epstein’s past work is even a bit too radical for his business backers. He told In These Times that he is “unrepentant” about his earlier writings, but he concedes that his corporate-funded sponsors have asked him to omit some of those previous arguments when attacking EFCA.

Counter-attack by progressives

Progressive bloggers, law professors and economists have launched counter-attacks, but these conservatives’ talking points, theories, and, most importantly, their data cannot be easily marginalized. In fact, they strengthen the hyperbolic rantings comparing the bill to the Gestapo or Islamic terrorism, claims that may seem laughable to progressives, but set the tenor for the debate in Washington. And Layne-Farrar’s and Epstein’s conclusions serve as the academic veneer for the PR blitz that has tried to demonize the Employee Free Choice Act.

Despite the wide dissemination of Layne-Farrar’s report, critics like Chris Kromm of the Institute of Southern Living have found distortions and shoddy analysis in her work. Of the 10 Canadian provinces she studied, Kromm discovered that only three actually had significant changes in card check rules. And he found that the report itself acknowledged there wasn’t enough data to draw conclusions about the impact of card check. It further admitted that the provincial card check data they did collect was too “weak” for economic analysis. Kromm also wondered, “If unions really were the cause of unemployment, why has Canadian unemployment risen in recent years…even as union membership has declined?”

But Layne-Farrar massages the data using a complex “regression analysis” to connect the dots between card check, higher unionization rates and more unemployment, putting the loss at between 600,000 and 2.6 million new American jobs in the first year.

“That’s bullshit,” says Canadian labor economist Charlotte Yates, now the Dean of Social Sciences at McMaster University in Hamilton, Ontario. “I don’t know of any credible economists who say [now] there is a direct correlation between unionization and the rise in unemployment.”

Even so, Layne-Farrar invokes her use of “regression analysis” as a sort of holy totem to ward off criticism of her work from other economists who cite what she says are “simplistic correlations.” These include studies showing that countries such as England, Denmark and Norway have higher unionization and lower unemployment rates than the United States. She says, “This is empirical analysis, not an opinion piece, with results based on publicly available data and using well-accepted econometric tools. You can’t rig these.”

John DiNardo, a labor economist at the University of Michigan and author of the textbook Econometrics retorts, “Just because she calls it ‘econometrics’ and ‘regression analysis’ doesn’t mean that it makes any sense.” While some earlier research had found a link between unionization and unemployment, more rigorous, recent research in Europe and the United States has found no connection between unionization and unemployment. In fact, Layne-Farrar’s study concocts a negative jobs impact from unionization that is 200 to 300 percent higher than even the most critical anti-union research.

Behind the statistical wizardry

Here’s where it helps to look behind the curtain of her statistical wizardry designed to dazzle common folk and legislators alike with econometrics. Her regression analysis supposedly aims to tease out the factors driving unemployment increases. But, DiNardo says, if unemployment shoots up and the unionized percentage of the workforce goes up, that could just as well be caused by more non-union workers getting laid off—while union members still keep their jobs. Hence, the percentage of unionized workers increases.

How do you get around this thorny problem if you want to blame unions for unemployment? Layne-Farrar purportedly “corrected” for the hopeless muddle of such simultaneous factors by, in part, merely measuring the unionization rates a year earlier than the unemployment rates. Presto! Unionization causes massive unemployment, she concludes. “She has very poor research design,” says DiNardo. “She doesn’t have anything resembling a natural experiment.” And he says that his review of the economic impact in America of unionization shows the “the casual effect of union recognition is zero.”

But for Epstein, the virtually unanimous opposition of business groups to the pro-labor legislation is proof positive that it will be “a job-killer of the worst sort.” In his report for the Hoover Institution, he paints an Edenic portrait of a non-unionized labor market, and laments the passage of the National Labor Relations Act in 1935 that legalized unions. “If the National Labor Relations Act offends every principle of the voluntary exchange of private property, this new bill is much worse,” he says. “I’ve never seen a statute so draconian.”

Epstein is the labor market equivalent of Candide’s Dr. Pangloss: If employers could just be left alone, all things work for the best in this best of all possible worlds. If there were no minimum wages laws, for instance, Epstein told me, “Wages would go up because productivity gains would offset any short-term losses [to workers].”

Such anti-union assertions don’t take into account the real world of employment—and the justifiable fear of being fired. Kim Bobo, author of Wage Theft in America, asks, “What bubble does he live in?” Even the Bush labor board found that nearly 30,000 workers are illegally fired or discriminated against each year because of union activity. And these researchers don’t really consider the widespread estimated $19 billion in wage theft.

While Epstein’s more radical views are left off the table, his intellectual firepower adds to the impact of his arguments against EFCA. Both Epstein and Layne-Farrar see an idealized world waiting to be born where unions don’t exist, and where workers and businesses thrive without them.

The question remains, will Washington politicians still listen to business interests that use these researchers’ dubious claims to argue, as Epstein does: “Unions are a bad deal for most workers.”

About the Author: Art Levine, a contributing editor of The Washington Monthly, has written for Mother Jones, The American Prospect, The New Republic, The Atlantic, Slate.com, Salon.com and numerous other publications. He wrote the October 2007 In These Times cover story, “Unionbusting Confidential.” Levine is also the co-host of the “D’Antoni and Levine” show on BlogTalk Radio, every Thursday at 5:30 p.m. EST.

This article originally appeared in In These Times on May 31, 2009.

Following last week’s AFL-CIO convention that aimed to jump-start reform drives and the union movement, new president Richard Trumka and other leaders will be taking their case for economic reform to Wall Street and the  public. As the AFL-CIO Now blog reported:

The team’s tour continues Sunday and Monday in Atlanta, including a rally outside Wachovia, where Trumka will condemn its predatory financial practices, such as foreclosures. On Monday night and Tuesday, the team travels to New York City where Trumka will issue a strong warning to Wall Street at a press conference outside the New York Stock Exchange.

The goal: create a fairer economy that works for everyone, not just the wealthy.

On Thursday, the Jobs for Justice Coalition plans an action—one of many protests scheduled for over 20 cities over the next week—outside a meeting of the pro-banking Financial Services Roundtable in Washington, D.C., a key lobbying coalition opposed to the Administration’s proposed consumer financial protection agency, as well as other reforms.

As a Jobs for Justice press release proclaimed:

Thousands expected to participate in over a dozen cities to mark the one-year anniversary of the bank bailouts.

Nearly a year after Congress authorized hundreds of billions of dollars to bail out the financial industry, major banks continue to pay outrageous salaries and bonuses, drive layoffs and foreclosures, and spend millions lobbying against the interests working people.

Rallies across the country will condemn the “bailout bandits” and “corporate criminals” at Bank of America, JP Morgan Chase, Citigroup and Wells Fargo.

Actions will take place in at least 21 cities, and new cities are being added every week. See below for local contacts and find an up to day list of actions at www.jwj.org/recovery.

There are good reasons for all the anger. But it has has yet to lead to a massive public outpouring for progressive reform, as opposed to the corporate-abetted “Tea Party” events that also decry bailouts along with healthcare reform, while leaving the current toothless oversight of the financial industry in place.

Even though federal officials allowed a free-spending set of bailouts with no requirements and little oversight, virtually nothing has been done to make sure the money isn’t wasted and is spent in ways that benefit the economy. Indeed, nobody really knows how the $700 billion in bailout funds was actually spent.

So while inside-the-beltway analysts claim that Obama has an uphill fight in Congress, out-of-control banks and  Wall Street firms are now squandering taxpayers’ funds while returning to trading in risky investments. And credit is still largely frozen, worsening the “jobless recovery.”

As the Media Consortium summed up in its year-later review of the Wall Street collapse:

While workers experienced increasing pressure on their pocketbooks, Wall Street gambled away their retirement investments. Lehman Brothers filed for bankruptcy one year ago today, a move which created chaos in the financial sector and heavy damage in the rest of the economy. Things were looking bad for the economy before Wall Street imploded, but the financial crisis made those problems a lot worse.

“In a modern society, a credit freeze means instant death to the real economy, since virtually every enterprise, big and small, runs on credit,” Les Leopold explains for In These Times. “When the financial sector froze, it pushed the real economy off a cliff.”

But incredibly, after a year marked by massive financial bailouts, not one new law has been signed to protect our economy–and taxpayers–from Wall Street. Not one.

Even the modest plans to rein in executive pay for taxpayer-supported companies have proved toothless. Leopold notes that President Barack Obama’s refusal to crack down on the banks has left both the financial regulatory process and other important progressive plans–like overhauling the broken health care system–in a precarious political state. The largesse we have shown for bailed-out bankers gives conservatives ammunition against other, more productive activities.

Read more at: http://www.huffingtonpost.com/the-media-consortium/weekly-audit-one-year-aft_b_287290.html

Perhaps the biggest promoter of refom, outside of the president himself, is the potentially influential coalition of 200 labor, consumer and  progressive groups, Americans for Financial Reform. It is planning grassroots actions while working with federal and state government officials to promote greater oversight of the financial system.

Indeed, to shore up support for administration proposals to rein in risky  investments, limit pay and offer a new consumer protection agency — all facing stiff industry opposition — the Treasury Department is reaching out to likely consumer allies, including the AFR organization.

So while some progressives and experts, including former Labor Secretary Robert Reich, remain skeptical about how committed this administration is to truly reforming a broken financial system, Bloomberg News reports that

Treasury Department officials are meeting with consumer allies to build support for a regulations overhaul for Wall Street as President Barack Obama ramps up a campaign to win legislation by year’s end.

The Treasury roundtables have been largely unpublicized, by invitation only and billed by some Democratic lawmakers as consumer-protection forums. The audiences are drawn in part from the rolls of a consumer-advocacy coalition that is pushing the legislation. They are designed to channel public anger at Wall Street and sidestep the financial industry, which is fighting to block the measure…

Audiences for the events are drawn largely from the membership of Americans for Financial Reform, a coalition of more than 12 dozen consumer, labor and civil rights groups that joined this year to push for oversight. The coalition includes the Service Employees International Union and the National Community Reinvestment Coalition.

Illinois Roundtable

The group will hold its next roundtable in Aurora, Illinois, on Sept. 21. State Attorney General Lisa Madigan will lead the session, and the group has invited Representative Bill Foster, an Illinois Democrat on the House Financial Services Committee.

Another non-profit group, Boston-based American Business Leaders for Financial Reform, is recruiting corporate executives to make the case for legislation. Tim Duncan, a Republican and founder of advisory firm Cambridge, Massachusetts-based Story Street Investment Management, created the organization after a conversation with Elizabeth Warren, the Harvard Law School professor who oversees the Troubled Asset Relief Program.

“There are a lot of people in the industry who realize reform is needed,” Duncan said in a telephone interview. “I’m surprised at the knee-jerk reaction industry is taking.”

But long-time observers of the financial industry aren’t suprised that a major battle lies ahead—and unions hope to play a leading role in pushing for reform.

And yet if this drive for reform falters, the fate of the entire economy is at stake. As Robert Reich described the risks we’re now facing:

Put simply, the Street has been given too many opportunities to play too many games with other peoples’ money.

But, like the health care industry, Wall Street has platoons of lobbyists and an almost unlimited war chest to protect its interests and prevent change. And with the Dow Jones Industrial Average trending upward again — and the public’s and the media’s attention focused elsewhere, especially on health care — it will be difficult to summon the same sense of urgency financial reform commanded six months ago.

Yet without substantial reform, the nation and the world will almost certainly be plunged into the same crisis or worse at some point in the not-too-distant future. Wall Street’s major banks are already en route to their old, dangerous ways — now made more dangerous by their sure knowledge that they are too big to fail.

About the Author: Art Levine is a contributing editor of The Washington Monthly who has also written for The American Prospect, Alternet, In These Times, Salon, The New Republic, The Atlantic and numerous other publications. He’s written investigative articles on unionbusting and other corporate abuses, and recently completed Cornell University’s Strategic Corporate Research summer program. He blogs regularly for Huffington Post, and co-hosts a weekly Blog Talk Radio show, “The D’Antoni and Levine Show,” every Thursday at 5:30 p.m. ET.

This article originally appeared in Working In These Times on September 20, 2009. Re-printed with permission from the author.

(The following post is part of our Taking Back Labor Day blog series. Many people view Labor Day as just another day off from work, the end of summer, or a fine day for a barbecue. We think that it’s a holiday with a rich history, and an excellent occasion to examine what workers, and workers rights activism, means to this country. Our Taking Back Labor Day posts in September will do that, from a variety of perspectives, and we hope you’ll tune in and join the discussion!)

*****

President Obama’s well-received health reform speech not only boosted public support for reform, but helped fire up much of the progressive base—despite his failing to draw a firm line in the sand on the public option.  

Yet as Mike Lux, co-director and CEO of Progressive Strategies, pointed out Thursday on the Web radio show I co-host, “The D’Antoni and Levine Show,” Obama accomplished a key goal of inspiring progressives, including influential labor leaders, to push harder for reform—while starting to recapture the “narrative” about healthcare back from the right-wing.

Lux observed: “In order to get big pieces of legislation passed, you have to have people who are pumped, ready to go, fired up, willing to knock on doors. He was having trouble generating that. People were confused and down in the mouth. But the speech did what he needed to do and did it in a big way.

More sparks for a reform drive are expected to start this weekend, when the AFL-CIO begins its convention, and Obama appears before them next week, following up on his fiery Labor Day rally appearance and Wednesday’s congressional speech.

Before the president’s address to Congress, Lux added, “we never really had control of the narrative. Obama, for all his eloquence, had trouble laying out a story of what was wrong and why he wanted it changed. In order to tell a compelling story, you have to tell who the villains are, and he’s not very good at that. We never really had a story being told that people could latch on to, understand and get excited about.”

“We now have that,” Lux said on Thursday about the President’s messaging. “Last night, he went after insurance companies in a big way, and went after people lying about the plan, and called them out in a big way. And now have a narrative we can take to people.”

(Of course, long before the speech, many activists in the union movement have been working hard for healthcare reform — an issue that’s now become a legislative priority ahead of the Employee Free Choice Act — but the speech can reignite their fervor while broadening the range of people involved in grass-roots activism.)

Meanwhile, insurance industry executives continue to play their part as villains: a new report by the California Nurses Association shows that up to 40 percent of claims are denied in California insurance companies, making those profit-driven bureaucrats part of the real “death panels.” On Amy Goodman’s Democracy Now! show this week, she highlighted the nursing association report and featured an interview with a mother, Hilda Sarkisyan, whose daughter died after she was initially denied a liver transplant by CIGNA, which has a 33-percent claim rejection rate so far this year. After a massive public campaign, the insurance company finally relented, but it was too late:

HILDA SARKISYAN: Well, we miss her. We don’t have our beautiful daughter with us anymore. And CIGNA is doing this every day, every day. And that’s why I’m out there to help other families to stop them. It’s not only CIGNA; it’s all the insurance industry, that they are placing profit before patient, and it’s not right…You know, they should not enforce the care of the people to their deep pockets. It’s all about their pocket, all about the CEO, how much he makes. I miss my daughter. I had a beautiful, perfect daughter. I don’t have her anymore. I don’t.

AMY GOODMAN: Hilda, describe what happened to your daughter.

HILDA SARKISYAN: Well, we had insurance. We were covered. We thought we had insurance. So it’s like having insurance and not having insurance is the same thing. People who have insurance and don’t have it, they get the same care. But having insurance and knowing that you do have it, and you are recommended to a certain hospital, because the insurance company only pays if you go to that hospital, you go to that hospital, which in our case was UCLA. We were transferred there. By the way, that’s our fourth hospital within, I would say, three years, because they were jumping us around. And finally, you go there. My son gave her the perfect bone marrow transplant, perfect match. And my daughter needed a liver transplant. And so many requests, so many requests, and they were—the doctors were denied. We were denied, until the California Nurses Association stepped in, helped us out.

We had to get out and go to their headquarters in Glendale, make a scene with our family, the Armenian Youth Federation, our church. Why do we have to do that? I’m a mother who should have been next to my daughter. Only if I knew she was going to die that same day, you think I would have that energy to go out there and do that? I could have been holding my daughter’s hand and praying with her. This is not right.

With his speech to Congress last night, President Obama re-energized the forces for reform and has set a clear path for victory. We’re going to do our part and hold Congress accountable – the time has come for Congress to put people above profits and enact real health care reform. We’re also going to pull out all the stops to take on the insurance industry. The President’s right – ‘The time for games has passed – now is the season for action.’

President Obama made clear his support of a public option, which is just that – an option that will help improve quality, lower costs and keep the insurance companies in check.

Labor Day marches and rallies capped off more than a month of an incredible union member mobilization to move the health care reform debate beyond the screaming diatribes and disruptive tactics by opponents that marred the start of the congressional recess.

During the weekend, some 150,000 union members turned out for rallies, parades and picnics that not only celebrated the workers’ holiday, but showed broad support for comprehensive health care reform.

Those events followed the more than 400 August town hall meetings, health care forums and other events where more than 24,000 union members spoke up for health care and wrote letters, made phone calls and went door to door to educate their neighbors.

The latest Big Business tactic is to attack the provision of the Employee Free Choice Act that guarantees workers who form a union a fair first contract — a vital provision, because more than 50 percent of workers who form a union don’t have a contract after one year and more than a third still don’t have a contract after two years.

Corporations are crying about the possibility they might have to take part in arbitration with employees if they don’t reach a first contract after three months of talks — even though they’re enthusiastic about arbitration in a wide variety of circumstances where they have the advantage.

In a new ad running in key newspapers, American Rights at Work again challenges corporate hypocrisy on arbitration. When it’s a big corporate entity against an individual, as in credit card disputes or personal injury claims, corporate spokesgroups like the Chamber of Commerce say arbitration is a way to settle any sort of dispute “fairly, quickly and inexpensively.” But when it’s time to bargain over better wages and benefits for their workers, these same groups are viciously opposed to even the possibility of requesting arbitration.

To union activists, what’s especially galling is how fervently businesses embrace arbitration when it allows them to avoid being held accountable for negligence towards employees or the defrauding of consumers. As Stewart Acuff, the special assistant to the President of the AFL-CIO, observes, “It’s pretty simple: arbitration is fine for them when it keeps them out court and limits damages to business. They use it to settle credit card disputes, mortgage payment disputes, and whenever it limits businesses liability and negligence. But when they look at arbitration for workers, then all of it sudden they hate it when it’s simply used as an incentive to force good-faith bargaining, a last resort to allow workers to get a collective bargaining agreement.”

In contrast, business interests have so championed and abused little-known arbitration provisions to keep themselves from being sued that they’ve spurred new legislation pushed by the Fair Arbitration Now coalition designed to rein in their excesses. A few days ago, NPR featured the story of Jamie Lee Jones who was repeatedly raped by co-workers of Halliburton in Iraq but has been barred from suing the company because of an employer’s contract she signed preventing a lawsuit. As the NPR story noted:

Jones was escorted by security to the company clinic for a rape examination. When the rape kit examination was done, the evidence was turned over to Halliburton security. The young woman’s breasts were so badly mauled that she is permanently disfigured. It has been four years since the attack, and despite the physical and circumstantial evidence, the Department of Justice has declined to investigate.

Seeking Justice Through a Suit

Justice Department officials refused to explain or comment in any way to NPR about the case. Jones has decided that if she can’t have her day in criminal court, she’ll sue Halliburton and its former subsidiary, KBR, in civil court.

“I want corporate accountability,” she says. “I was so brutalized that I’m going to have to remember this the rest of my life. And Halliburton was so uncompassionate that they even let the men work there, still, after I went home.”

Heather Browne, director of communications at KBR, says that while the company can’t speak to the facts since the case is ongoing, it denies any liability in the attack. And she argues that any dispute with Jones, even one involving charges of rape, must go to arbitration.

So Jones is now going to court seeking the right to sue. She has become one of the nation’s leading arbitration reform advocates.

An Arbitration Culture

If Jones’ case is remarkable, the fact that arbitration is involved is not. In the past 20 years it has become a dominant feature in the legal relationship between American corporations, their employees and their customers.

If you use credit cards, have a cell phone contract, bought a house from a builder or put your mother or father in a nursing home, you have very likely signed away your right to be heard in court if there’s a problem. It’s called pre-dispute mandatory binding arbitration.

Public Citizen’s David Arkush, one of the country’s leading researchers on arbitration, says many consumers have no clue as to the rights they’re signing away.

“In the fine print of those contracts is a provision that says that they can never sue the company if they have a dispute,” Arkush says.” Instead they have to go a private, secret tribunal chosen by the company.”

To top it all off, businesses rig the arbitration process against consumers and employees by barring them from going to court if there’s any fraud or negligence before a dispute occurs, and only the company can choose the arbitrator.

The arbitration provision in the Employee Free Choice Act, on the other hand, only uses arbitration if negotiations between business and labor have broken down for 120 days after negotiations begin, and both businesses and the union must agree on their arbitrator from a vetted list of private arbitrators approved by a federal agency, the Federal Mediation and Conciliation Service.

All that makes the two different types of arbitration strikingly different: one is a business ruse used by businesses to deprive customers and workers of their rights, and the other is a bulwark designed to protect workers’ rights against bad-faith bargaining.

The new pro-labor ad attacking such hypocrisy, running in Capitol Hill political newspapers as negotiations in the Senate are heating up, puts the issue starkly:

Big Business is happy to support arbitration when it’s in their best interest. But when it comes to negotiating contracts with their workers, Big Business would rather use delay tactics to avoid paying better wages and benefits. It’s only fair that corporations agree to arbitration for workers who are trying to negotiate a first contract after forming a union. Arbitration is a key part of the Employee Free Choice Act that will let both sides reach a fair agreement.

One reason the Chamber and other Big Business interests are turning to attacking arbitration is that their previous bogus claims that the legislation takes away the right to a secret ballot have been exposed as a fraud on Capitol Hill. (The bill actually gives workers the choice — now determined by employers — of whether to form a union by majority sign-up or secret-ballot election.)

Of course, you don’t hear Newt Gingrich or the Chamber of Commerce championing the rights of on-the-job rape victims like Jamie Lee Jones to sue and avoid arbitration, indeed when it comes to abused employees or defrauded consumers they hail arbitration as the best way to handle any disputes. In fact, in May 2008, more than a dozen business trade groups wrote a letter to Congress stating, “Arbitration is an efficient, effective, and less expensive means of resolving disputes for consumers, employers, investors, employees and franchisees, in addition to the many businesses that use the same system to resolve business disputes.”

As the SEIU Blog sums up their attitude, “Corporate Lobbyists: We Were for Arbitration Before We Were Against It.” Among the paeans to the glories of arbitration offered by business leaders before they attacked its use in the Employee Free Choice Act:

“For more than 80 years, arbitration has helped Americans settle disputes fairly, quickly and inexpensively, without having to file a lawsuit or navigate the court system.” – Lisa Rickard, president of the US Chamber’s Institute for Legal Reform (4/2/08)
“Arbitration is mutually beneficial, which is what we have always thought.” – Arne Wagner, assistant general counsel for Bank of America [ABA Journal, December 1994]

“[F]ederal policy… favors the use of arbitration as an efficient, effective, and less expensive means of resolving disputes…Arbitration, has served as an essential valve for the nation’s overburdened civil justice system.” – Letter to Senate Judiciary Committee signed by US Chamber of Commerce, Retail Industry Leaders Association, National Retail Federation, National Association of Manufacturers, Jackson Lewis, et al (2/7/08)

Just a little bit of a double standard, no? Arbitration is the best thing ever when it comes to protecting their wallets, but when it comes to adding the safety net of first contract arbitration during collective bargaining, it’s the devil incarnate that must be stopped at all costs.

Despite such hosannas to arbitration, they’re not-so-surprisingly eager to denounce arbitration as a “mortal threat to American freedom” when workers want it after months of stalled labor negotiations.
And the research is now irrefutable that a majority of workers who select a union don’t get a contract in their first year as a result of business stalling tactics; if businesses can’t bust a union through illegal intimidation before an election, then they’ve got a second shot at union-busting by foot-dragging tactics and lowball proposals to slash wages and benefits by the company. As American Rights at Work reports:

One year after a successful union election, 52 percent of employers deny their workers a contract. According to Cornell University researcher Kate Bronfenbrenner, 52 percent of workplaces had no collective bargaining agreement one year after a successful union election. Two years after an election, 37 percent of workers’ unions still had no labor agreement.

It’s easy to determine when businesses will back or oppose arbitration: if it seems likely to screw workers and consumers out of their day in court, then they see it as good, and it if might possibly help workers achieve decent wages and benefits through labor negotiations, then it’s bad. As Paula Brantner, the attorney who heads the pro-worker Workplace Fairness advocacy organization, observed recently:

So if employers truly think that arbitration is a better system than resolving disputes in court, then why are they fighting the Employee Free Choice Act [EFCA] provision? You don’t have to be a cynic to realize that they’re inclined to fight any effort to level the playing field for workers, which the Employee Free Choice Act would do. Just as they’re spreading the myth that EFCA would eliminate the secret ballot, it just comes naturally for them to confuse the public about the other EFCA provisions that would empower workers.

But if corporate America doesn’t want “a bureaucrat from Washington” to tell people how to run their businesses, then we have to wonder why they want arbitrators who are not even required to know the law or follow it passing judgment on their employment practices. Essentially, companies are talking out of both sides of their mouth: they want to impose an unfair arbitration process on their employees, but cannot bear to have even a fair arbitration process applied to them.

But workers don’t have to accept this hypocrisy: we can work to support both the Arbitration Fairness Act and the Employee Free Choice Act. If both were to pass, workers would be able to go to court for their employment and civil rights claims (under the Arbitration Fairness Act), and leave arbitration to the unions and employers who know how to use it best (under EFCA). But that might simply be too much fairness for employers to handle.

And while the Chamber of Commerce and its GOP allies like Newt Gingrich have been painting a nightmarish scenario of jackbooted bureaucrats imposing job-killing arbitration concessions, the real truth of how arbitration works in labor negotiations has been ignored. As a new Roll Call column by two Harvard and MIT labor scholars, including Arnold Zack, the former past president of the National Academy of Arbitrators, points out:

Something is drastically wrong with a labor law when an employer can ignore and thwart the will of the majority of its employees.

The Employee Free Choice Act currently before Congress addresses this problem by assuring time for negotiations and mediation as the first step in the process and arbitration when agreement is blocked.

The bill has led to a misguided debate and mistaken information about the role played by arbitration in a well-designed and professionally administered dispute resolution system. This has made the current bill an easy target for opponents to argue that everyone will end up having a contract imposed by “government arbitrators” who know nothing about business or labor issues…

If passed, the Employee Free Choice Act would assign a mediator by the Federal Mediation and Conciliation Service as soon as a new unit is certified to support the negotiations by offering the full range of mediation, education, and facilitation services helping the parties reach a voluntary agreement. The vast majority of cases are likely to be resolved through negotiations and mediation.

In fact, settlements are reached more than 90 percent of the time in public sector jurisdictions that provide mediation prior to arbitration. So, contrary to those who argue every case will go to arbitration, the presence of arbitration encourages and enhances the ability of the parties to reach voluntary agreements in negotiation and mediation — and incidentally does so without imposing on employees or employers the risks and costs of a strike to get a contract.

After being smeared by hyperbolic distortions about the bill’s arbitration provision and research by the Chamber’s extremist libertarian scholar-for hire, Richard Epstein, the union movement is finally hitting back on this issue. The latest inside-the-Beltway barrage follows up on last week’s first round of attack ads against the Chamber’s “hypocrisy.” As a spokesman for American Rights at Work (ARAW) told The Hill newspaper this week:

“Labor law reform must ensure that workers who want to join a union are able to do so without facing endless delays from corporations seeking to deny them a voice in the workplace,” ARAW spokesman Josh Goldstein said. “Big Business’ position is hypocritical and motivated by their desire to maintain a status quo in which corporations make millions while middle class families struggle to get ahead.”

About the Author: Art Levine is a contributing editor of The Washington Monthly who has also written for The American Prospect, Alternet, In These Times, Salon, The New Republic, The Atlantic and numerous other publications. He’s written investigative articles on unionbusting and other corporate abuses, and recently completed Cornell University’s Strategic Corporate Research summer program. He blogs regularly for Huffington Post, and co-hosts a weekly Blog Talk Radio show, “The D’Antoni and Levine Show,” every Thursday at 5:30 p.m. ET.

This article originally appeared in The Huffington Post on June 17, 2009. Reprinted with permission by the Author.

The Chamber is donning the masquerade of championing workers’ rights by railing over the myth that the bill would take away the secret ballot — it actually just gives workers the choice of whether to select a union through majority sign-up or “card check.” The business coalition, also working through such front groups as the Alliance to Save Main Street Jobs, promotes bogus claims that it would cost the economy jobs.

But now the real truth behind the hostility of the Chamber of Commerce and other major business groups to unions has been revealed by one its most admired experts, prolific University of Chicago libertarian law professor Richard Epstein, whose Big Business-funded research has been touted as the definitive critique of the Employee Free Choice Act.

His arguments against the arbitration provision of the legislation that aims to end employer stalling in bargaining has also persuaded such iconoclastic liberal bloggers as Slate’s Mickey Kaus ( full disclosure: he’s a former editor of mine whom I admire although I don’t always agree with him).

Yet in a new In These Times article, “Shilling on the Corporate Dollar,” Epstein confirmed to me his earlier writings that the country would be better off without labor unions, labor protection laws or the minimum wage law. “I’m unrepenant,” he says, while also conceding that his corporate funders asked him to omit some of his earlier arguments against labor laws as potentially political damaging.

They had good reason to be worried that his radical views could discredit their claims that these corporate leaders somehow care about protecting workers’ rights. One of his harshest critics, David Brody, a professor emeritus of labor history at Berkeley, observes, “I’m amazed the business side is using him. He thinks collective bargaining itself is a bad thing, while they claim to be defending the sanctity of the secret ballot.”

At the heart of much of Eptstein’s current theoretical attacks on the bill is his longstanding libertarian view of employer and employee relations as achieving a perfect balance because of market forces. That makes him the labor market equivalent of Candide’s Dr. Pangloss: if employers could just be left alone, all things work for the best in this best of all possible worlds. If there were no minimum wage laws, for instance, Epstein told me, “Wages would go up because productivity gains would offset any short-term losses [to workers].” And Epstein’s ivory-tower “at will” world view is still on display in his new Hoover Institution paper: “To be sure, some firms do not have enlightened managers. But in a competitive market, the firm that does not do right by its employees will not attract or retain the most productive workers.”

But while this and other anti-union assertions may sound reasonable to a tenured professor like Epstein, it simply doesn’t take into account the real world of employment — and the justifiable fear of being fired. For instance, David Madland, a labor expert at the Center for American Progress Action Fund, notes, “What really discredits his arguments is his claim that employer intimidation isn’t a significant cause of union decline.”

Most strikingly, he doesn’t even think there ought to be workforce regulations or minimum wage laws, even for sweatshops here or abroad. As my article points out:

In the past Epstein, an extreme libertarian, has attacked minimum wage and unemployment benefits, denouncing such New Deal legislation as unconstitutional “takings” that violate the Fifth Amendment. That is no surprise. Epstein has argued that, historically, sweatshop conditions can only be ameliorated by market forces, not by laws or unions. He told In These Times: “The level of wages will be determined by the intersection of supply and demand…the escape from that system is not driven by unions, which cannot increase productivity.”

The In These Times article further debunks the statistical sophistry of the business-funded economist Anne Layne-Farrar whose claim that the bill would cost at least 600,000 jobs in its first year has gained wide currency. No doubt Chamber of Commerce lobbyists and members are citing this week that statistic and her authoritative-seeming report. But by interviewing top economists, including John DiNardo of the University of Michigan, I was able to deconstructed her oft-touted use of “regression analysis” she uses to make the claim that rising unionization rates cause unemployment:

Layne-Farrar massages the data using a complex “regression analysis” to connect the dots between card check, higher unionization rates and more unemployment, putting the loss at between 600,000 and 2.6 million new American jobs in the first year.

“That’s bullshit,” says Canadian labor economist Charlotte Yates, now the Dean of Social Sciences at McMaster University in Hamilton, Ontario. “I don’t know of any credible economists who say [now] there is a direct correlation between unionization and the rise in unemployment.”

Even so, Layne-Farrar invokes her use of “regression analysis” as a sort of holy totem to ward off criticism of her work from other economists who cite what she says are “simplistic correlations.” These include studies showing that countries such as England, Denmark and Norway have higher unionization and lower unemployment rates than the United States. She says, “This is empirical analysis, not an opinion piece, with results based on publicly available data and using well-accepted econometric tools. You can’t rig these.”

John DiNardo, a labor economist at the University of Michigan and author of the textbook Econometrics retorts, “Just because she calls it ‘econometrics’ and ‘regression analysis’ doesn’t mean that it makes any sense.” While some earlier research had found a link between unionization and unemployment, more rigorous, recent research in Europe and the United States has found no connection between unionization and unemployment. In fact, Layne-Farrar’s study concocts a negative jobs impact from unionization that is 200 to 300 percent higher than even the most critical anti-union research.

No matter that her and Epstein’s findings are built on flimsy data and extremist views. This week, they’ll be no doubt marshalled to convince Senators to back away from the Employee Free Choice Act.

As The Hill reported:

According to a schedule obtained by The Hill, executives are visiting Sen. Dianne Feinstein (D-Calif.) [this] Wednesday as part of a lobbying push against the Employee Free Choice Act (EFCA), legislation that would make union organizing much easier if passed. Business leaders from 12 different states, organized by the U.S. Chamber of Commerce, are flying into Washington next week to lobby against the bill.

Feinstein has emerged as a key voice on the legislation. At first, her support for EFCA wavered since she is not a co-sponsor of the bill this Congress, unlike two years ago when she also voted for cloture on the bill. But now, Feinstein has floated a compromise for one of the bill’s provisions to help garner support from Senate centrists who are worried about angering the business community by voting for the bill…

Along with Feinstein, business leaders are also scheduled to meet with Sens. Evan Bayh (D-Ind.) and Tim Johnson (D-S.D.) — centrists who could decide the fate of EFCA. They both co-sponsored the bill last Congress but Bayh is not doing so this year.

Union officials have been somewhat open to changes in the bill but business groups have lobbied against any compromise, saying the legislation would hurt industry revenue by leading to more strikes and work stoppages. They have hammered Feinstein’s proposal [to allow mail-in ballots instead of majority sign-up or "card check"] because they believe it would still lead to intimidation of workers by union organizers.

Of course, the intimidation canard has been challenged by the most rigorous research on the issue, including a new study that found not a single incident of union intimidation in public sector jobs where majority sign-up is permitted.

Yet despite what solid research says, it’s not at all clear that conservative opponents of the legislation will let facts stand in their way. As I concluded in my piece on the two top anti-union scholars:

While Epstein’s more radical views are left off the table, his intellectual firepower adds to the impact of his arguments against EFCA. Both Epstein and Layne-Farrar see an idealized world waiting to be born where unions don’t exist, and where workers and businesses thrive without them.

The question remains, will Washington politicians still listen to business interests that use these researchers’ dubious claims to argue, as Epstein does: “Unions are a bad deal for most workers.”

About the Author: Art Levine is a contributing editor of The Washington Monthly who has also written for The American Prospect, Alternet, In These Times, Salon, The New Republic, The Atlantic and numerous other publications. He’s written investigative articles on unionbusting and other corporate abuses, and recently completed Cornell University’s Strategic Corporate Research summer program. He blogs regularly for Huffington Post, and co-hosts a weekly Blog Talk Radio show, “The D’Antoni and Levine Show,” every Thursday at 5:30 p.m. ET.

This article originally appeared in The Huffington Post on June 2, 2009. Reprinted with permission by the Author.

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