Happy Striketober. Let’s Restore the Legal Right to Strike.
The United States is experiencing a wave of worker militancy and a White House administration that actually wants to take concrete actions to defend and grow labor unions. That strange sensation you’re feeling is optimism about labor’s prospects, reflected in the giddiness of #Striketober. Let’s take this opportunity to restore the legal right to strike.
A moment in which tens of thousands of workers are on strike — at John Deere, at Kellogg’s, at Warrior Met Coal—might seem like a strange time to talk about a “right” to strike. But a legal right to strike must include the right to return to the job when the strike is over — win, lose or draw — and U.S. workers haven’t had that right since corporations and Ronald Reagan’s National Labor Relations Board (NLRB) conspired to weaponize a long-dormant Supreme Court decision to legalize union-busting.
Strikes are contagious. The example set by one group of workers going on strike and returning to their jobs with their heads held high (and their bosses massively inconvenienced) can inspire other workers to take action. But the contagion can cut both ways. A failed strike that ends with the strikers permanently replaced by scabs can spread fear and hopelessness across communities and industries.
The last year that some touted as a “strike wave” — 2018, when some 485,000 workers went on strike in over 20 large job actions — still only saw unions return to mid-1980s levels of strike activity. The 1980s were the midpoint of a historic long-range decline in strike activity. What happened, of course, was that President Ronald Reagan fired the federal air traffic controllers in 1981, signaling a new era of union-busting. A so-called “PATCO syndrome” kicked in: Workers were afraid to go on strike because it could mean not just the loss of their pay and the other hazards of the strike itself, but because a lost strike could mean the loss of their jobs.
Far more significant, however, was a copper mining company called Phelps Dodge that in 1983 bargained its union to impasse over draconian cuts in benefits and working standards. The company successfully dared its union out on strike, then bussed in scabs and offered them replacement jobs that would continue after the strike was over. And after 12 months, the company had the scabs vote to decertify the union. PATCO was symbolic; Phelps Dodge was the blueprint for getting rid of private-sector unions through failed strikes.
Phelps Dodge dusted off a 1938 Supreme Court decision NLRB v. Mackay Radio that purportedly granted employers the right to permanently replace strikers. And this is where the stars align for #Striketober and the new NLRB: The Mackay decision was poorly decided in the first place, rarely revisited and leaves the labor board with pretty wide discretion to narrow the Mackay doctrine to the point of meaninglessness for rich corporations.
First, it bears stressing that the National Labor Relations Act clearly states, “Nothing in this Act…shall be construed so as either to interfere with or impede or diminish in any way the right to strike, or to affect the limitations or qualifications on that right.” And the substance of the Mackay decision actually upheld the right to strike by ruling in favor of an NLRB ruling that the employer could not discriminate against the strike’s leaders. Unfortunately, the patrician judge who wrote the majority’s decision, Justice Owen Roberts, had to put himself in the boss’s shoes and hem and haw about “right to protect and continue his business,” during those pesky strikes, “by supplying places left vacant by strikers.” And if business conditions required it, he pointlessly opined, he should be able to have the scabs continue after the strike as long as he is not motivated by anti-union animus and he doesn’t discriminate against the strikers for the remaining vacant
Mackay is a very stupid Supreme Court opinion. It introduces a hypothetical scenario that’s not supported by the facts. (The Mackay strike lasted a weekend; there wasn’t even time to hire scabs.) Parts of it are in contradiction with itself and it plainly contradicts the law as Congress passed it. The decision has the appearance of long-settled precedent because of subsequent Court decisions that rejected other employers’ attempts to discriminate against strikers as not being “proper under Mackay” and neither the Court nor the NLRB ever seriously investigated what is proper under Mackay.
The NLRB’s new General Counsel Jennifer Abruzzo has signaled that she is willing to reconsider all kinds of twisted and outdated precedents that have vastly favored bosses during a nearly four-decades-long union-busting drive. In an interview with our own Hamilton Nolan, she’s indicated a willingness to issue bargaining orders — not elections — for new unions when employers commit Unfair Labor Practices, to certify minority members-only bargaining units to help unions establish a foothold, and to be more creative about “make whole” financial remedies for terminated union activists.
Where does Jennifer Abruzzo’s NLRB have the discretion to punish an employer for hiring permanent scabs? Prompted by a union-filed Unfair Labor Practice charge, it can investigate an employer’s economic needs “to protect and continue his business” by hiring permanent replacements. It’s one thing to hire temps, or have supervisors or salaried workers fill in, but what is the economic need to promise scabs permanent jobs? Make them come up with stupid reasons that align with Mackay’s stupid rationale. Would the John Deere company be in danger of going out of business if it couldn’t offer scabs permanent jobs? Make them open their books and prove it. Would Kellogg’s find it impossible to staff their factory lines if it couldn’t recruit scabs with promises of long-term work? I think the union could find a couple thousand workers who would be willing to work those jobs just as soon as the strike ends.
Unions have the winds at their back because of the unique circumstances of the pandemic making so many workers less willing to work unpleasant jobs for lousy pay, but labor markets have a way of tightening that make striking a riskier proposition for workers. We must take this opportunity to win back our rights for when we’ll really need them again. In any workplace where workers are on strike — or just talking about it — if the boss starts to promise scabs permanent replacement jobs at the end of the labor dispute please file a damn Unfair Labor Practice charge!
[This article originally appeared at In These Times.]
What we owe gig workers
Labor advocates and allies in Albany are feuding over a draft bill that aims to grant some union rights to precarious workers who toil at irregular hours and less regular wages for app-based “gig” employers like Uber and Lyft. This family feud is all the more frustrating because there’s a perfectly reasonable New Deal-era state law still on the books for when workers slip through the cracks of a patchwork of worker protections and fissured workplaces.
The current bill purports to do the same by creating a system of “sectoral bargaining” for gig workers, while severely restricting the number issues they can bargain over, outlawing their ability to strike and robbing them of their unemployment insurance by replacing their statutory protections as workers with an opportunity to collude as a guild of “entrepreneurs.”
Everywhere from the House-passed PRO Act, which would amend the National Labor Relations Act (NLRA) to make the process for forming a union fairer and available to misclassified freelancers, to the California legislature’s attempts to plug the holes in the current NLRA by properly classifying gig workers as statutory employees with rights, the app bosses try to codify a third class of worker lacking both the agency to set their own price and hours of labor like a traditional independent contractor and the ability to form democratic unions of their own choosing to bargain — and, potentially, strike — over the working conditions that the app bosses dictate.
What’s crazy is that, unlike the newly passed California law that Uber circumvented through a massively expensive — and deceptive — ballot initiative, New York has had, this whole time, a functioning state agency that will protect the right to organize and certify a union for any private-sector workers that federal labor law leaves behind. Because the Supreme Court had a track record of overturning any protective legislation for workers when New York Sen. Robert Wagner drafted the NLRA, he decided to justify the law’s constitutionality in Congress’ power to regulate interstate commerce. In 1935, that was defined far more narrowly than today.
For example, a hotel standing entirely within a state’s borders did not count. Therefore, New York passed a so-called “baby Wagner Act” that created a similar regulatory framework for private-sector workers left out of the New Deal. Most of the first 20,000 workers that the Hotel Trades Council won the right to bargain on behalf of in the 1930s and 40s were organized through elections — and card check certifications — conducted by the NY State Labor Relations Board. Stuck with the bizarre constitutional framework of arguing that human rights are rooted in protest activity’s impact on the economy, the civil rights movement expanded NLRB jurisdiction to retail, hospitality and service industries. By the mid-1960s, unions stopped turning to the state Labor Relations Board and in 2010 its responsibilities were assumed by the Public Employment Relations Board. Most people that know of PERB think of it as the state agency that punishes public sector teachers and subway workers for going on strike, but it actually can be an engine for private-sector worker organizing.
Legislative progressives, or a governor willing to exercise some leadership, could settle the gig worker controversy by directing PERB to aggressively protect and encourage the right to organize for all private-sector workers under their jurisdiction. And as the Biden administration wrests control of the NLRB from Trump’s anti-union appointees, we could have two labor boards competing for who offers workers a better deal.
This was the dynamic when I directed the American Federation of Teachers’ charter school organizing division during the Obama years. In blue states like New York and Illinois, we got public-sector labor laws that gave the workers a right to organize through card check. When the NLRB staked a claim to the jurisdiction, the federal agency touted its more robust right to strike. It was a compelling argument.
We live in a time when billion-dollar companies will spend millions of dollars and thousands of hours to resist their workers’ attempts to win a couple more bucks an hour. As a campaign director, I struggled with the impulse to strike a deal when a powerful boss signaled a desire to negotiate. And Uber like so many of the gig economy digital platforms — hemorrhaging investors’ dollars, struggling to maintain a workforce with pitiful wages, breaking all kinds of laws — are under enormous pressure to make peace with anyone who will take a settlement. With deep respect and solidarity to the organizers and legislators who are working with Uber on this deeply flawed bill, a better deal is possible if you start from the position that the actually existing labor laws should apply to these digital scofflaws.
[This article originally appeared in the New York Daily News.]
“The Amazon Workers in Bessemer Would Already Have Their Union If We Had the PRO Act”
The April union election loss at an Amazon fulfillment center in Bessemer, Alabama has been treated in the media as a signal event for the labor movement in the Biden era. But what exactly it signaled remains subject to debate.
Kim Kelly is a freelance writer who covered the Amazon election on the ground for More Perfect Union. Shaun Richman, program director at SUNY’s labor center, previously directed the American Federation of Teachers’ charter school organizing division. Here they discuss changing worker attitudes, labor law, media coverage and organizing strategy as possible lessons to take from the loss in Bessemer.
Shaun Richman: Biden’s statement on the Amazon campaign in March, from a historical perspective, was the strongest pro-union message from any U.S. president. The Franklin D. Roosevelt quote that the CIO put on organizing posters, “If I went to work in a factory, the first thing I’d do would be to join a union,” almost has an unspoken, but I would never work in a factory contained within it. On Presidents’ Days, when unions’ social media people have to trot out these memes of presidential statements on unions, they’re pretty terrible. John F. Kennedy sounds like a negging pickup artist: “Our labor unions are not narrow, self-seeking groups. They have raised wages, shortened hours and provide supplemental benefits…” etc. It’s always stated as this negative they’re not all bad; some of them are actually fixing things. Whereas Biden strongly emphasized this being the workers’ decision and nobody gets to interfere with it — the federal government has your back. It was good and possibly a better signal to all workers organizing. How did that play out in a live organizing campaign in a warehouse in the deep South?
Kim Kelly: I think folks were impressed that the president was paying attention to what they were doing, and the idea that he was kind of urging them on, and clapping back at Amazon for all of the union busting techniques they’d been pulling out and hammering people with for months. But it came at a point where a lot of people had already voted. It would have been much more impactful if he’d come out in early February and said all that. It was a little Johnny-Come-Lately, I think, in terms of actual usefulness, but it helped.
SR: It might be a matter of timing. The original right to organize in the 1930s, Section 7a of the National Industrial Recovery Act just said you have the right to organize, but there was no enforcement mechanism, which is not dissimilar to our broken labor law system today. Even more impactful than FDR’s endorsement of joining a union were crusading senators like Robert La Follette Jr. and Robert Wagner holding hearings to interrogate employers who defied the law, and holding up stories from workers who were trying to form a union in the face of employer intransigence. And out of that came the drafting of the National Labor Relations Act, which was really meant to have some penalties for violating the workers right to organize, weak as it ultimately turns out that they were.
Biden’s statement was good, but now is Bernie going to pick up the ball and do the hearings? Is Warren? Because Amazon executives deserve to get grilled on the bathroom stall stuff and the mailbox. What are some of the worst things that you saw that Congress should be grilling them on?
KK: I’m generally skeptical about Congress doing anything, but hopefully the high-profile nature of the situation will mean that Bezos and his buddies will be held accountable in some way for what they pulled. Amazon has created its own surveillance state here; the workers clock in and do all their tasks through an app on their phone, so they were getting anti-union propaganda through the app and text messages, sometimes up to five a day, to their personal cell phones. Amazon bought billboards in the area. They set up a sketchy mailbox in front of the warehouse in defiance of the NLRB. They essentially bullied the county into adjusting the traffic light patterns at an intersection in front of the warehouse, where workers have been stopping to talk to organizers on their way in.
Some of this is legal, and it’s not unexpected that Amazon would try to innovate union busting and disrupt that space, but they can’t be allowed to keep doing this. If all of these politicians who made statements or tweeted about how they support these workers hauled Amazon’s corporate leadership up in front of them and grilled them on why they thought they could get away with it — at the very least it might be able to stop Amazon from using the same tricks or coming up with new ones. I’m not really sure what kind of power Congress has to force a private company to stop union-busting.
SR: In my experience, an elections appeal and unfair labor practice investigation process can really drag out and can pull more facts and private documents into the public sphere, and can create real leverage for a union to rerun the election on terms that are somewhat fairer. That depends on somebody in power also having some real leverage over the employer and saying, ‘Stop breaking the law or you’re not going to get this tax break or this government contract anymore.’ Or even, just: ‘Jeff Bezos, get ready to park your butt in this Senate hearing room.’
This seems like it’s changing for the better. When I was doing charter school organizing it was local politicians that we needed to weigh in. But because of “Democrats for Ed Reform” and a lot of rich education reformers who threw their money around, liberal Democrats who could have stopped the behavior of a specific charter school chain in their district that was firing union activists and blatantly violating the law, just wouldn’t touch it because of the political landscape. I think that’s changed.
The “organizing model,” which labor researcher Kate Bronfenbrenner developed through lots of scientific research in the 1980s — measuring the most effective union tactics and the most effective boss tactics, and measuring win rates as these tactics went head-to-head in surveys of NLRB elections — was also developed in a social context that contemporary activists tend not to appreciate. In the 1980s the experience was that politicians and the general public won’t really have much sympathy for a union or really care that the boss broke the law, and so we have to do most of our organizing in secret until we have a supermajority of workers ready to make a public demonstration of support for the union and, generally, a union organizing campaign has to be better than good to have a chance at winning.
This idea that nobody’s going to be sympathetic is out the window. You’ve got a bunch of members of Congress who intellectually understand that the decline of the labor movement causes Democratic election losses. But they don’t understand how deep the problems are. As much as it frustrates me that there are still a lot of unions that don’t follow science, the devotion to the organizing model has led the labor movement to sort of suffer in silence, because even the things bosses are allowed to do often fly under the radar, like captive audience meetings are outrageous when you actually explain to people what goes on in them.
What went on in Amazon’s captive audience meetings?
KK: One of the things that made the workers I spoke with so angry about it is that normally this is a company where if you show up one minute late, you’ll get docked an hour of your flexibility time. They only have 15 minutes for a bathroom break, 30 minutes for lunch. But Amazon has all the time in the world to sit them down in a classroom with an anti-union consultant who is being paid $3,200 per day, just droning at them for hours about how a union is going to take all your money, and the company might have to shut down the warehouse, or cut hours or pay, if you vote for the union. Amazon made it clear that your time doesn’t matter.
SR: That’s the point! The utter stupidity of the messaging (“do it without dues”) is the point. Last week, we’re measuring you down to the second because these packages gotta get out for one-day delivery. Now, whatever, this [anti-union meeting] is more important. And I think that workers come to the conclusion, oh, they’ll burn this place down. If we actually win the election, they’re going to turn around and say this facility is underperforming, your one-day turnaround really bombed in April, we’re going to route more packages through other facilities, and here come the layoffs.
KK: In these captive audience meetings, Amazon said voting for the union might impact your pay, and benefits. There were rumors going around that if the workers voted to form a union, the company would just pull their investment and bounce. Bessemer is a very strategic location in terms of shipping and receiving around the South. It wouldn’t make any sense for them to leave. They essentially said, ‘You can do whatever you want but you know…vote wisely.’
SR: The law says you can’t make threats. But there’s this bad Supreme Court decision that says, well, you can mask your threats as economic predictions.
KK: You can certainly insinuate things.
SR: This is an example of how unions get stuck in old models. Bosses have a First Amendment right to conduct captive audience meetings. But there was a period of time when the NLRB would enforce an equal time rule that if the boss did mandatory captive audience meetings, the union gained some additional access to the work site: non-work times, break rooms, non-work hours. In 1966, unions asked the NLRB to reinstitute an equal time rule and the Johnson NLRB politely declined, because they said later today we’re issuing another decision in a case called Excelsior Underwear Inc., where we’re going to say that 30 days out from the election, you get to have the names and addresses of all the workers on the voting list. So you can contact them at home, and they said, ‘Try that, see if it works. If it doesn’t, come back to us.’ We never did. Because we learn to organize through a style of staff trainings and oral tradition, if you go more than one generation out, shit just gets forgotten.
If I were the RWDSU (Retail Wholesale and Department Store Union), I would be demanding as a remedy that when this election gets rerun, the union gets equal time to run their own meetings on work time. The NLRB has the authority to do that, and it’s a First Amendment issue when you really look at it. You’ve got an arm of the government conducting an election that’s going to determine whether additional statutory rights are applied to the voters. The rules of that election are that one party can force the voters to attend a mandatory meeting upon pain of termination. The other side has no right to respond. And beyond that a boss can only have a captive audience meeting if they’re advocating a “no” vote. If there’s a neutrality agreement, and they in any way signal, “we want you to vote for the union,” that’s also illegal. When you step back from that, how is that not coerced political speech, ala the Janus decision?
KK: It’s all ridiculous. The union was criticized for not doing home visits, which would be a valid critique if we’re not in the grips of a deadly pandemic that is disproportionately killing Black and brown people, while you’re trying to organize a group of Black and brown workers. The pandemic greatly affected the union’s ability to reach workers. Amazon has the voters trapped in that facility for 10 hours a day and is attached to them on their phones, 24⁄7. Workers didn’t feel comfortable staging large scale meetings. You can’t go to the beer hall or book a conference room at a hotel and cram a bunch of people in there and get the energy flowing when there’s a deadly virus in the air.
SR: The overall voter turnout was 55%? You never see turnout that low in an NLRB election. This was a pandemic election and that added a lot of noise. I agree that a lot of the left criticism is essentially victim blaming. I appreciate what RWDSU did because it’s Exhibit A for why we need the PRO Act and better enforcement and remedies at the NLRB. I think there’s a lot of policymakers for whom it was an eye opening experience.
Another unspoken principle of the organizing model is that you don’t want to campaign in public and risk a high-profile loss that could have a chilling effect on other bargaining units in the same industry, or the same city. I felt that way for most of my tenure as an organizing director. I got disabused of that in a campaign at the first charter school in New Orleans to win collective bargaining. We got voluntary recognition, but only after the school board held a public meeting to grill the teachers on why they wanted a union. And every education reporter in the city live-blogged it, powerbrokers in the city turned out to testify pro and con. And I’m just sweating sitting in this auditorium. And it was actually massively empowering, partly because we had a terrific Organizing Committee (OC) and their messaging was on point, but anti-union voices on the faculty also got amplified. Still, it got campaigns going at a bunch of other charters. I got much more open to doing more of the campaigning in public.
But I think a lot of people that are criticizing this are still active duty organizing directors, and they’re thinking, ‘You just fucked up my campaign at this auto parts factory or at this hospital.’ I’m not sure that’s correct. I’m not sure at this point, after the Fight for $15, and other public campaigns — particularly in digital media newsrooms — that losing round one sends a message of futility. That might actually sort of get people more fired up like, ‘Well, we’re coming back.’ But you have talked to way more of these workers than I have.
KK: People are disappointed. They’re heartbroken after pouring endless hours of their time over the course of months into this campaign that didn’t reach the finish line. But when I was down there talking to Jennifer Bates and Darryl Richardson, who are two of the major driving forces of this campaign on the OC, they said, ‘Okay, we have more work to do, and we’re gonna do it.’ These folks have been knocked down. They went up against this terrifying global behemoth, and they didn’t get the result they wanted, but they’re not going to give up and they want to keep pushing the message forward. One woman, Linda Burns, a real fire starter, said, ‘Look, if I have to go to Cleveland, if I have to go to Chicago, I will go wherever I need to go to spread this message and tell Amazon: You’re still on notice. We’re coming for you.’
It was a little infuriating seeing so much of the discourse online, versus what I saw and felt and heard from the workers and organizers and the supporters down in Birmingham and Bessemer. It wasn’t this devastating blowout loss that was painted as in some corners. It is a loss. But when you add nearly 500 challenged ballots, the numbers look a little better. There are nearly 1,000 workers in this Amazon facility in the deep South, who voted “Yes” after being inundated with anti-union propaganda and scare tactics for months.
They haven’t been federally recognized, but a union is a group of workers that come together, and collectively fight for what they need — these Amazon workers are a union. RWDSU has been inundated with calls and messages from workers at other Amazon facilities. We know that there are independent organizing efforts already underway. Look at Amazonians United or what’s happening in Staten Island. I think we’re seeing workers across the country taking these different approaches and looking at different tactics and looking at what worked and what didn’t work in Bessemer and applying that to their own campaigns. If anything, this is a really important case study for what to do, and what not to do, when you’re trying to organize a company like this in the deep South. All that is to say, they’re not ready to give up, so I don’t understand why so many people were ready to give up on them.
I know that there was criticism of the media coverage. There was so much of it, which was unexpected and I think it was pretty cool — for a couple of months, a labor fight was one of the biggest stories in the country, and millions of people who had never thought about unions or thought about the people behind the package they just got yesterday, they’re thinking about it. They’re thinking about what happens in an Amazon facility, they’re thinking about what a union is, and hearing that a union could be helpful for people who were in a bad spot or had a bad employer, or who have a job in general. It’s not something you can measure, but I think it really raised the public consciousness around unions and around labor and workers’ rights.
SR: Unions suffer in silence while the legal process is totally mystified. At my labor center, our students are mostly in the building trades which is a model where you get on a waiting list to join the union, they train you and then get you placed in union jobs on construction sites. One time we had some Fight for $15 strikers speak at an event about their struggle. And our students were like, ‘That’s terrible. Why don’t you guys just join the union?’ The low levels of union density are not because millions of workers don’t want a union. You really have to show how the process is rigged in the bosses’ favor.
KK: And now there are millions of explainers of all of this arcane NLRB stuff! What normal person that isn’t a labor nerd even knew what the NLRB was before this election? But now, there’s all of these high profile media articles and explainers and videos breaking down this process, and showing not only how hard it is, but here’s how you do it. I think that’s a good thing.
SR: I don’t know what labor person can’t see that as a good thing.
KK: There was criticism about the coverage being too positive, which is almost surprising given how labor is usually treated in the press. The union had a media lockdown for the first half of the campaign. The press started showing up when there was momentum. More workers finally felt comfortable talking to the press. Politicians were coming down, the workers were having rallies. ‘Oh, there’s a rally! Oh, Danny Glover’s coming by? Oh, Bernie and Killer Mike are rolling through!’ Of course, this is the kind of thing that we can convince our editors to let us go down and cover.
SR: There are readers probably shouting, ‘But! You don’t go public until you’ve got 70% assessed on a public petition.’ If the PRO Act passes, I think we have to be open to doing more of our organizing in public. That said, we still need organizing committees that are representative, that are accountable to each other and to their co-workers and empowered to make real decisions about moving the campaign forward. I’m loath to criticize the organizers who worked on this campaign, but it looks like there were some corners cut when it came to creating the kind of organizing committee that can see a group of workers that size through a tough campaign.
KK: But, they had an OC! It’s such a strange thing to say, ‘Oh, they didn’t have an organizing committee, they didn’t spend any time on that.’ But, they did! There was a good chunk of people that were devoted to organizing and talking to their coworkers every single day. I see people who maybe don’t know every part of the story, discounting the work that those workers put in on top of their 10-hour shifts, and their side jobs and families.
SR: Of course there was an organizing committee, but under the organizing model, the OC needs to be about 10% of the workforce, it has to be representative of all shifts and job classification, ethnic groups. It has to be that between all the members of the OC you can reach every single member of the bargaining unit. And RWDSU couldn’t have had that. Not in that amount of time and not with the thousand or so temp workers Amazon threw into the unit. We followed the organizing model very slavishly in the charter school organizing division and it meant that we walked away from 9 out of 10 campaigns because we just couldn’t get the leaders we needed on the OC. We need to be open to dealing with a little more experimentation, while remaining committed to the science of what can win and what definitely won’t.
KK: A lot of the people who are upset about these initial election results, I’m hoping that they see it that way, and not as like, ‘Well, it’s not worth doing.’ I hope that they instead take the idea that, ‘If it’s that hard, we’ve got to make it so it isn’t that hard. This shouldn’t be allowed to stand.’ The PRO Act is a pretty good Band Aid. It’s not gonna fix everything, but if it can make it even just a little easier, it’s worth it.
The Amazon workers in Bessemer would already have their union if we had the PRO Act a year ago. We wouldn’t have had to deal with any of this bullshit if we had had decent labor laws in place. I am always skeptical that the government will ever really do anything useful, but there’s only a couple of Democratic holdouts on this bill now, and I’m feeling a little hopeful.
A Brief History of the U.S. Government’s Targeting of Left-Wing Immigrants
On September 8, 1947, federal agents walked into the midtown Manhattan office of the Hotel, Restaurant & Club Employees & Bartenders Union Local 6 and arrested its president for being an “undesirable alien.” Michael J. Obermeier had been organizing hotel workers into a succession of scrappy independent unions since he arrived in New York as a German immigrant around the time of the first World War. By the time of his arrest, he led 27,000 union members in a powerful affiliate of the American Federation of Labor.
That same day, attorneys for the CIO’s Transport Workers Union Local 100 were fighting an aggressive move to deport John Santo, the union’s Romanian-born organizing director. Local press asked the Deputy Commissioner of Immigration and Naturalization, Thomas Shoemaker, if these actions were a part of a crackdown. Shoemaker’s mild response was that the legal actions were “in the normal order of business.”
The truth is that they were both. The federal government was cracking down on union leaders it believed to be Communists, and it was specifically targeting activists based upon their immigration status. Dozens of arrests, prosecutions and deportation procedures were initiated against alleged Communist activists in the weeks and months that followed. It’s a pattern that has marked American politics for over a century.
A new book by lawyer and historian Julia Rose Kraut, Threat of Dissent: A History of Ideological Exclusion and Deportation in the United States, comprehensively lays out this long history of using the denial—and even the threatened removal—of citizenship in order to restrict some forms of political action.
A history of ideological exclusion
Restrictions on naturalization coincided with the advent of partisan politics, according to Kraut. Article I of the Constitution directs Congress to “establish an uniform rule of Nationalization,” and the first one that Congress set, in 1790, allowed white foreigners to become citizens after just two years of residency. This liberal policy made the United States a haven for political refugees throughout the 1790s, and they became active in American politics. The Irish fleeing British rule and French fleeing the twists and turns of their revolution tended to support Thomas Jefferson’s new Democratic-Republican clubs that were critical of the Federalists’ drive for a strong central government.
By the end of the decade, the Federalists were frustrated by the legislative intransigence of Jefferson’s party and with its many publications that were critical of them. President John Adams, a Federalist, was facing a tough re-election and itching for war with France. In 1798, he signed the notorious Sedition Act into law, which made it a crime to publish material critical of the government, or the president. Less well remembered is that the Federalists also updated the Naturalization Act to greatly increase the years of residency needed to become a citizen, and passed an Alien Friends Act, which gave the president the power to deport non-citizens that he deemed a threat to the nation’s security.
Most of us were taught in high school that the United States ultimately survived this early test of our democracy. After all, when Adams lost to Jefferson in 1800, he peacefully transferred power, establishing a norm. The Sedition Act expired and Adams never used his expulsion powers under the Alien Friends Act. Readers of this publication, on the other hand, are all too aware that a reliance on norms makes for a vulnerable democracy, and a hardening of the line between citizen and resident alien leaves the latter population vulnerable to persecution. (Indeed, the reason Adams never had to use his deportation powers, Kraut shows us, is that many of Adams’ targeted enemies self-deported before he had the chance to do it by force.)
In the century that followed, Congress continued to make it difficult for immigrants to naturalize, but primarily for reasons of regulating the workforce, coupled with racist exclusion (mostly directed at Asian workers). Kraut does not neglect this scorched underside of our national melting pot myth, but the subjects of “ideological exclusion and deportation” are perhaps less well understood—even by those on the Left—than the fact that our immigration laws are inherently racist.
The 20th century drive to deny and revoke citizenship of dissidents began with a bang. When President William McKinley was shot to death in 1901 his assassin, Leon Czolgosz, claimed to be an anarchist who drew his inspiration from a lecture he attended by Emma Goldman. Although Czogolz was a natural-born citizen, anarchism was still viewed as a foreign ideology and Congress responded by voting to ban anarchists or anyone who advocated the “overthrow by force or violence of the Government of the United States,” language that in one form or another remains in federal immigration code.
Goldman was made notorious by the assassination that she neither called for nor condoned. But she was a revolutionary, and her writings and public speeches on anarchism and workers’ rights, not to mention her advocacy of free love and contraception, made her the bête noire of the law and order types who wanted to stamp out “criminal anarchy.” The barrier to kicking Emma Goldman out of the country, aside from the yawning gulf between philosophical anarchism and advocating real acts of violence, was that she was a U.S. citizen by marriage.
Obsessed with so-called undesirable aliens, Congress in 1906 passed a law that for the first time allowed for the denaturalization of a person who obtained citizenship through fraud or misrepresentation. Immigration officials almost immediately began investigating Goldman’s estranged husband. Finding that he had misrepresented his age in his application for citizenship, he was denaturalized. Goldman lost her own citizenship as a result and spent 10 years restricting her travel, well-aware of how vulnerable she now was to deportation. She was eventually purged in 1919, along with 248 other foreign radicals, and deported to Russia during the first Red Scare that followed the Bolshevik revolution and (at the time) the largest strike wave in U.S. history.
Anti-communism would animate most changes to immigration law, and much of federal law enforcement, in the decades that followed. The Department of Justice’s Bureau of Investigation (forerunner to today’s FBI) that was created to investigate potentially fraudulent immigration paperwork in 1908 transformed into a domestic spy agency focused on going after underground Communists in the 1920s. In 1940, Congress again revised immigration and naturalization code, and passed the Smith Act, making it a federal crime to “knowingly or willfully advocate, abet, advise, or teach the duty, necessity, desirability, or propriety of overthrowing or destroying any government in the United States by force or violence,” or to belong to an organization that did. This included publishing, public speaking and organizing. The Smith Act further required foreign nationals to be fingerprinted and to sign an affidavit regarding the date and place of entry to the United States, the intended length of stay, the activities he or she expected to be engaged in, criminal record (if any) and other information that the Immigration and Naturalization Service (INS) might request.
This 20th century sedition law was drafted in response to the INS’s inability to deport Harry Bridges, the longshore workers leader who led the 1934 strike that snarled shipping up and down the West Coast and led to a general strike in San Francisco. Although Bridges’ denied belonging to the Communist Party (CP), he was seen as a threat to commerce and national security. Bridges, who emigrated from Australia in 1920, was vulnerable to deportation and the House Un-American Activities Committee pressed the INS to begin deportation proceedings—under the older Anarchist Exclusion language—in 1938. A June 1939 Supreme Court decision, Strecker vs. Kessler, narrowly ruled that the exclusion language could only be applied to someone who was an active member of an organization that fit its definition of one that advocated the violent or forceful overthrow of the government. Bridges was definitely not an active member of the CP at the time, denied ever having been a member, and the prosecution could never prove otherwise. He walked out a free man.
The new law added 10 years of retroactivity to the affidavit required in a naturalization application, regarding membership in a revolutionary anti-government organization. This is why the infamous question in congressional hearings and other investigations was, “Are you now or have you ever been a member of the Communist Party?” It was a trap. Answer honestly, and you could go to jail under the Smith Act. Lie, and you could be denaturalized and deported under the Nationality Act. Michael J. Obermeier, the New York hotel workers leader, was one of 41 Communist labor organizers arrested in the initial crackdown of 1947. By 1949, Kraut writes, “the number had swelled to 135” and the Attorney General, Tom C. Clark, maintained a list of 2,100 foreign Communists who he wanted to deport.
“Are you now or have you ever been…”
Michael J. Obermeier is not one of the stories that Kraut tells in Threat of Dissent. He’s my research subject. Over a decade since filing my first Freedom of Information Act requests, I’ve been studying his FBI file and those of his comrades. Without knowing the complete dark history that Kraut’s book compellingly brings into the light, it was clear to me that the FBI was prioritizing investigatory resources based upon the immigration status of its targets. Obermeier was fingered in 1942 for work he was doing among German-Americans in support of the Allied war effort. Within two years, FBI agents had interviewed a dozen ex-comrades and had dug up details on numerous trips in and out of the country in the years between his first arrival in the country and his (unsuccessful) 1939 naturalization application, and were building the case to deport him.
By contrast, the FBI began investigating Obermeier’s long-time organizing partner, Jay Rubin, in late 1943. President of the NY Hotel Trades Council, Rubin was allied with a number of conservative AFL craft unions and maintained stable bargaining relationships within the hospitality industry. More importantly, from the FBI’s perspective, he became a naturalized citizen in 1929. He was added to the Security Index, a list of key individuals to be arrested if the government ever decided to completely suppress the Communist Party. But the FBI mostly kept tabs on him, and only briefly considered denaturalizing him in the late 1950s when a couple of agents convinced themselves that Rubin had only pretended to quit the CP in 1950.
Gertrude Lane, the General Organizer (and, later, Secretary-Treasurer) of the Hotel, Restaurant & Club Employees & Bartenders Union Local 6, was a natural born citizen and graduate of Hunter College. Despite evidence that she served on the CP’s National Committee, she was dismissed as “not currently of sufficient interest” to add to the Bureau’s Security Index. Instead, the New York office mildly collected her birth, education and voter records, known aliases and whereabouts—and passively accepted tips from snitches.
As with the Alien and Sedition Acts of 1798, we’re taught in school that the postwar Red Scare was a test of our democracy that we ultimately passed. After all, the overreach of the Smith Act was eventually blunted by the Supreme Court, and today, the Communist Party can operate in the open as a legal organization once again. But people’s lives were destroyed in the process, and immigrants were singled out for targeted harassment. More importantly, the principles of ideological exclusion and denaturalization are still enshrined in the law under the exclusive purview of the executive branch.
A good chunk of the latter half of Threat of Dissent is focused on the Nixon and Reagan administrations’ efforts to deny entry visas to scientists and public intellectuals who belonged to socialist or antifascist organizations, or who supported Palestinian statehood or opposed South African apartheid. This includes the ridiculously petty efforts to deny the ex-Beatles member John Lennon a visa renewal because of his public opposition to the war against Vietnam, and to kick the famed actor Charlie Chaplin out of the country for thumbing his nose at the House Un-American Activities Committee. “These cases,” writes Kraut, “served as a reminder of the importance of discretion and of who holds that discretion to determine the fate of foreigners seeking to enter the United States, as well as the potential for abuse of discretion under the law.”
Indeed, that executive discretion is at the heart of President Trump’s so-called “Muslim Ban.” While obviously racist in his intentions, his executive order drew its authority from Red Scare-era ideological exclusion laws and the flimsy argument that visitors from majority-Muslim nations are predisposed towards terrorism. Now consider Trump’s recent efforts to declare the loose network of antifascist organizers a “domestic terrorist organization.” He wants to tap into the surveillance and civil forfeiture powers afforded him under the PATRIOT Act (which Democrats voted to renew during Trump’s term). Just wait until Stephen Miller tells him he can also deport antifascists who aren’t natural-born citizens!
If Joe Biden is able to defeat Trump in November, progressives should treat his presidency with the same level of fear and loathing as we did the Trump and Bush administrations. The basic democratic rights of citizenship should not be the playthings of presidents. When we are finally able to turn our attention towards shutting down Stephen Miller’s toddler concentration camps and establishing a “pathway to legal citizenship,” we also have to insist upon irrevocable citizenship as a right.
[This article was originally published at In These Times.]