February 26, 2021

It’s a Trapavoid legal structures designed to constrain you

Seth Ackerman’s “A Blueprint for a New Party” wound up in my inbox this week. Ackerman, writing in Jacobin, the socialist quarterly he edits, describes the history of labor parties in the United States and abroad, surveys the ways America’s strict campaign-finance and election laws stymie new parties, and advocates for a new kind of organization that isn’t a party as such, but a hybrid of legal vehicles enabled by Citizens United and state-of-the-art partisan fundraising innovations.

To pick one quote:

Yet, in the context of American law, when such advocates speak of creating an independent “party,” what they mean, ironically, is choosing to subject their organization to an elaborate regulatory regime maintained by, and continually manipulated by, the two parties themselves.

My first thought: Please tell that to all the folks on about new unions.

Policy-wise, I’m in strong favor of collective bargaining. And I’m in favor of applying antitrust law against suppression of wages. But unions are among the most highly regulated forms of organization known to American law. In this country, for at least the last century, recognizing unions as a category has largely facilitated targeting them for various controls and restraints.

Everyone excited by the concept of unionization should read through Michael Evan Gold’s short book, An Introduction to Labor Law. They should familiarize themselves with controversies like union democracy and why big, famous, international unions have often opposed it, as they opposed the Landrum-Griffin Act. They should understand the history of organized crime in unions, and why union workers have at times welcomed and relied upon known criminals. They should read and understand the arguments that forcing democracy on unions, but not on employers, disadvantages unions, agree or disagree. They should understand the interplay of labor laws and industry regulations in work now dominated by independent contractors on “gig economy” platforms, and the political clout those platforms have wielded.

I’m not trying to warn anyone off unions here, democratic or otherwise. Only wishing that folks could be more aware of what they’re stepping into, and not just one story about it. You need to know why dedicated labor advocates have written that:

American industrial relations and labor politics are exceptional because in 1886 and 1887 employers won the class struggle.

— Kim Voss, The Making of American Exceptionalism, quoted by John Curl in For All the People: Uncovering the Hidden History of Cooperation, Cooperative Movements, and Communalism in America

You need to know how that struggle was “won” and what bulwarks—especially in the laws—were left behind by the victors.

As a general rule, the “right” side of our political spectrum does a much better job of not enthusiastically branding itself with burdensome regulatory categories. We’ve seen an entire nascent “industry”, blockchain, self-consciously chanting that securities laws that obviously apply to it do not in fact apply to it, as if they could ward off the feds by force of collective will. On the other end, we’ve seen fledgling companies willfully burdening themselves with extra corporate-law requirements, through new benefit corporation laws, of uncertain value and very clear cost. I’ve lost count of how many clients have come to me wanting to form a cooperative and went away disappointed, but well advised, to form an LLC or even a corporation with cooperative rules, rather than a co-op qua co-op under state laws ideally suited to grain elevators.

Anyone out to reinforce a dumb stereotype that Republicans see regulation as government oppression and Democrats see regulation as a font of public benefits can find plenty of examples of this kind. But there are examples that don’t fit. Too many to name.

One I ran into just this week is Image Comics. Long story short, a number of famous comic book artists, at the top of their field but struggling for creative control and fair compensation, quit their jobs at the incumbent publishers and formed their own on two basic principles: everybody owns their work and nobody interferes with anybody else’s. The idea of creator ownership, rejecting the industry norm of work made for hire, became a thing in comics, aided and abetted by the ’90s comic book boom. Nobody seems to think Image is perfect. But there’s widespread agreement it worked a beneficial change.

When there’s more than one way to get where you want to go, try not to pick the route littered with land mines by your enemies.

Your thoughts and feedback are always welcome by e-mail.

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