After the Law of Apolitical Economy: Reclaiming the Normative Stakes of Labor Unions.

• Author: Reddy, Diana S.

FEATURE CONTENTS INTRODUCTION 1394 1. JUSTIFYING NEW DEAL-ERA LABOR LAW 1399 A. What's Wrong with Labor Law? 1401 B. Private Organizations, Public Interest 1406 C. Framing Labor Law for Lochner-Era Courts 1410 D. The Law of Apolitical Economy 1413 E. The Capital-Labor Accord 1415 II. UPENDING THE NEW DEAL-ERA CASE FOR UNIONS 1419 A. An Era of Union Decline, but Why? 1420 B. Unions as Antithetical to the Common Good 1422 C. Constructing "Political" Protest 1427 D. The End of the Law of Apolitical Economy (Except for Unions) 1430 III. REFRAMING UNIONS TODAY 1431 A. A Turn Toward the Public 1433 B. Reconstituting Themselves as Social Movements 1436 1. The 99% ("Economic Populism") 1437 2. The Service Recipient ("Bargaining for the Common Good") 1440 3. The Marginalized Worker ("Antidiscrimination") 1443 C. Dignity, Voice, and Redistribution at Work as a Common Good? 1446 D. Measuring the Limits of Public Support 1449 IV. LAW AND THE NORMATIVE STAKES OF LABOR UNIONS 1452 A. Alchemical Paths, Revisited 1453 B. On Becoming a Matter of Public Concern 1457 CONCLUSION 1460 Given the fact that both labor and business are perceived as powerful, self-interested forces that do not have the public's interest at heart, why are labor organizations frequently held in greater disdain than business? The answer may lie in the belief that business does some good for everyone in society, even if only incidentally, while unions act primarily to benefit their members and leaders, and have only a negative impact on the rest of the public.

--Seymour Martin Lipset and William Schneider (1)

INTRODUCTION

Americans are changing their minds about labor unions. Over the past decade, there has been a massive shift in public opinion on organized labor. (2) In 2009, during the depths of the Great Recession, only 48% of the American public said they approved of labor unions. This was unions' lowest approval rating ever and the first time that unions failed to command majoritarian public support. (3) But from this nadir, the unexpected happened. Over the next decade, unions' approval rate climbed steadily more than twenty percentage points, up to 71% by 2022. (4) This shift represents one of the most rapid changes in public attitudes toward unions in American history.

Yet in this Feature, I argue that even in this moment of renewed public interest, the American conversation about unions remains constrained in ways that could impede the political and legal transformations necessary to create a better future for workers. Current levels of support for labor unions remain conditional, tied to arguments about labor's broader societal benefits, but as yet ambivalent about greater freedom for working people as its own social good. In other words, how Americans talk about unions today still overlooks some of the most powerful normative arguments for what they do. This is unsurprising. As I will show, these arguments have been obscured, and purposefully so, for a long time.

In making this claim, I use a law-and-political-economy framework to intervene in contemporary labor-law scholarship. (5) During an era of union decline, legal scholarship on labor unions has tended to focus on structural issues: declining union density, changing economic conditions, and the technical insufficiencies of labor law. (6) It has had much less to say about changes in what people think about unions and why--about the ideational and ideological currents that shape, and are shaped by, material realities. To the extent that this scholarship has discussed economic consciousness and political will, it has treated those phenomena as exogenous to the legal discussion, as politics or culture, but not law.

In contrast, fields such as history, sociology, and political science have paid greater attention to cultural understandings of unions. Paramount among these, labor historian Nelson Lichtenstein has argued that ideas are central to understanding American labor unions and their place within American political economy. (7) Drawing from a cultural-history tradition, he argues that unions have always been engaged in what he calls "the contest of ideas," among their other battles. (8) In dialogue with corporations, politicians, and other institutional groups and social movements, Lichtenstein argues that unions help shape how people understand the economy and the role of workers and unions within it. (9) And yet, this scholarship has sometimes left law, as both a source of ideas and a reflection of them, underexplored.

If legal scholarship has focused on law but not ideas, and other fields have focused on ideas but not law, this Feature insists on synthesis. It explores the relationship between law and the contest of ideas. Specifically, it argues that the American conversation about unions has been unduly constrained, in no small part, because of how the law has framed them. During the New Deal, unions were constitutionally categorized as economic actors engaging in commercial activity, and consequently denied recognition as political actors engaging in normative advocacy. (10) I refer to this legal move and all the accommodations that have followed from it as the "law of apolitical economy." I use this term to describe a jurisprudential paradigm that actively minimized the normative stakes of labor unions' statutory purposes in part through categorizing them as "economic" and therefore outside of the bounds of broader claims-making about societal values. I argue that this paradigm still shapes how Americans understand the stakes of labor unions today. The upshot is that even with support for unions currently at a sixty-year high, that support remains insufficiently tied to support for workers as workers.

It was not always this way. In the late 1800s and early 1900s, American unions raged against the inequalities of wage labor, insisting that there was a collective moral imperative to increase worker well-being and worker freedom. They championed ideals of labor republicanism and industrial democracy, and they spoke of fundamental rights under the First, Thirteenth, and Fourteenth Amendments. In so doing, they insisted that the labor question was an inherently political question.

But in the wake of the Great Depression, liberal lawyers and economists prioritized a different kind of justification for what unions do. They framed unions, and laws supporting them, as sound industrial policy, essential to economic recovery. According to then-dominant economic ideas (early pillars of what would later be referred to as Keynesianism), increased worker income meant increased purchasing power and economic growth. Similarly, liberal policymakers argued that a rationalized, legal process for collective bargaining would promote industrial peace, channeling the worker radicalism that had so recently halted production in factories across the country. The Supreme Court adopted these rationales, noting in 1940 that laws supporting worker bargaining power "have an importance which is not less than the interests of those in the business or industry directly concerned." (11) Labor unions served the common good because of their benefits for business, for industry, for the economy writ large, and only by extension thereof, for workers. Labor law was an act of interest convergence, not just radicalism.

The justification of labor law based on a technocratic claim about the relationship between working conditions and the health of the American economy had long-term consequences. Armed with an economic rationale for unions, New Dealers did not merely abandon broader normative justifications, they actively undermined them. The Keynesian compromise which treated economics as science, rather than values, required a concurrent legal accommodation: economic regulation as rational public policy rather than fundamental rights.

The result, what I call the law of apolitical economy, is an ongoing and untenable line-drawing in constitutional law and broader culture that bifurcates economic issues from sociopolitical ones, treating the former as the domain of technocratic decision-making, while reserving the full scope of "normative" argumentation, whether about rights, fairness, democracy, or even just plain old political contestation, for the latter. While it is well-known that fear of Lochner v. New York (12) liberty-of-contract principles helped motivate the Carolene Products deinstitutionalization of "regulatory legislation affecting ordinary commercial transactions," (13) the impact of this choice on sociolegal understandings of unions remains largely unexplored. As I show herein, one of the primary impacts has been the carving out of unions' statutorily defined role from the material and symbolic benefits of constitutional protection under the First Amendment, and then, over time, from legibility as a social movement.

While labor-law scholars have traced the brokering of the Keynesian compromise, this Feature tells the story of its longer-term consequences. Interrogating the law of apolitical economy is essential to understanding what happened to unions in the late twentieth century. Specifically, it helps explain why the resurgence of neoclassical economic principles in the 1970s was catastrophic for the legitimacy of labor unions. When supply-side economists flipped the Keynesian script, they claimed that corporate productivity, not worker purchasing power, grew the economy and furthered the general welfare. Unions doing what they were statutorily designed to do became rent-seeking at the public's expense. At the same time, unions' ability to respond with broadly resonant normative arguments was hampered by its previous concessions. Rights had become the "master frame" for articulating justice claims, and bread-and-butter unionism was no longer legible in this register. From the 1970s through the early 20oos, union membership plummeted, particularly in the private sector. (14) Public support for...