Constructing Countervailing Power: Law and Organizing in an Era of Political Inequality
abstract. This Article proposes an innovative approach to remedying the crisis of political inequality: using law to facilitate organizing by the poor and working class, not only as workers, but also as tenants, debtors, welfare beneficiaries, and others. The piece draws on the social-movements literature, and the successes and failures of labor law, to show how law can supplement the deficient regimes of campaign finance and lobbying reform and enable lower-income groups to build organizations capable of countervailing the political power of the wealthy. As such, the Article offers a new direction forward for the public-law literature on political power and political inequality. It also offers critical lessons for government officials, organizers, and advocates seeking to respond to the inequalities made painfully evident by the COVID-19 pandemic.
author. Kate Andrias is Professor of Law, University of Michigan Law School. Benjamin I. Sachs is Kestnbaum Professor of Labor and Industry, Harvard Law School. For helpful comments and discussion, the authors thank Sharon Block, Catherine Fisk, Daryl Levinson, Nina Mendelson, Bill Novak, David Pozen, Richard Primus, K. Sabeel Rahman, Ganesh Sitaraman, and participants at workshops at Columbia Law School, Michigan Law School, Michigan State Law School, Tel Aviv Law School, University of Wisconsin Law School, and Wayne State Law School. The authors also thank Harry Graver, Courtney Brunson, Ciara Davis, Jonathan Edelman, Annie Hollister, Donya Khadem, Jonathan Levitan, Rebecca Moonitz, Jared Odessky, Elizabeth Rodgers, Rachel Sandalow-Ash, Owen Senders, and Zachary Simon for excellent research assistance. Finally, the authors thank the editors of the Yale Law Journal.
Introduction
Among the painful truths made evident by COVID-19 are the deep inequality of American society and the profound inadequacy of our social-welfare infrastructure. The nation’s lack of comprehensive health care,1 its underfunded and inefficient system of unemployment insurance,2 and weak workplace safety and health guarantees,3 along with nearly nonexistent paid sick leave,4 debtor-forgiveness rules,5 and tenant protections6 leave poor and working-class communities—particularly communities of color—dangerously exposed to the ravages of this pandemic, both physical and economic.7 America’s weak social safety net is, in turn, a product of a profound failure that has plagued American democracy for decades now: the wealthy exercising vastly disproportionate power over politics and government.8
Indeed, public faith in American democracy is at near-record lows, and increasing numbers of Americans report that they no longer feel confident in the health of their democratic institutions. When asked why, many say that money has too much of an influence on politics and that politicians are unresponsive to the concerns of regular Americans.9 Research supports these fears, showing both that wealthy individuals are spending record sums on electoral politics10 and that elected officials are at best only weakly accountable to nonwealthy constituents.11 As political scientist Martin Gilens has observed, “[W]hen preferences between the well-off and the poor diverge, government policy bears absolutely no relationship to the degree of support or opposition among the poor.”12
Of course, democracy does not require that policymaking always follow majority will or the median voter’s preferences. But democracy, as well as the faith citizens have in their government, falters when lawmakers persistently disregard the priorities of nonwealthy citizens.
Much of the legal scholarship (and public commentary) concerned with this democracy deficit focuses on the increased flow of money into electoral politics and advocates for stemming that flow.13 Scholars writing in this vein criticize the Supreme Court’s jurisprudence, exemplified by Citizens United v. FEC, that has enabled unfettered campaign spending.14 They offer a range of reforms designed to limit the flow of money into elections, many of which would require a change in the composition of the Supreme Court or the ratification of a constitutional amendment.15 A related group of scholars advocates for shielding the legislative and administrative process from money’s influence through, for example, lobbying restrictions and disclosure requirements.16
A second robust body of scholarship focuses not on insulating the political process from money but on trying to ensure equal rights of individuals to participate in the governance process through elections. These scholars criticize barriers to equal voting rights, including contemporary uses of gerrymandering and legislation that impose hurdles on individual voters’ ability to exercise the franchise or minimize the effective voting power of particular constituents.17 Scholars urge both doctrinal and legislative reform that would ensure more equal rights of participation.
In the last few years, a third approach has begun to emerge in the legal scholarship. This approach begins by recognizing the difficulty—both practical and constitutional—of keeping money out of politics. It also recognizes that while equal voting and participation rights are critical to the goal of combatting political inequality, they are not enough to ensure political equality in a system where wealth functions so prominently as an independent source of political influence. Thus, this third approach moves beyond campaign finance and individual participation rights and focuses instead on what we will call countervailing power. In particular, this approach is concerned with the ability of mass-membership organizations to equalize the political voice of citizens who lack the political influence that comes from wealth.18
The beneficial effects of countervailing, mass-membership organizations are well known to theorists and researchers of democracy.19 Put simply, such groups increase political equality by building and consolidating political power for the nonwealthy, thus serving as counterweights to the political influence of the rich. Mass-membership organizations can serve in this capacity because, at bottom, they aggregate the political resources and political power of people who, acting as individuals, are disempowered relative to wealthy individuals and institutions.20 More particularly, mass-membership organizations enable pooling of politically relevant resources, including money, among individuals with few such resources; they provide information to decisionmakers about ordinary citizens’ views; they navigate opaque and fragmented government structures, thereby enabling citizens to monitor government behavior; and they allow citizens to hold decisionmakers accountable. And, in fact, when citizens are organized into mass-membership associations that are active in the political sphere, researchers find an exception to the general rule that policymakers are disproportionally responsive to the preferences and concerns of the wealthy.21
Over recent decades, however, there has been a decline in broad-based, mass-membership organizations of low- and middle-income Americans.22 This decline in countervailing organizations has exacerbated the political distortions caused by the increase in political spending by the wealthy. But the capacity for countervailing organizations to address the distorting effects of wealth raises a critical question for legal scholars: How can law facilitate the construction of countervailing organizations among the nonwealthy? Put differently, how can law facilitate political organizing among Americans whose voices are drowned out by the distorting effects of wealth? That is the question we address in this Article.
Recently, legal scholars have begun to address related topics. For example, K. Sabeel Rahman and Miriam Seifter have written about ways that participation in administrative processes can improve the organizational strength of citizen groups. Thus, Rahman argues for designing administrative processes in ways that enhance the countervailing power of ordinary citizens,23 while Seifter urges administrative-law scholars to pay attention to the characteristics of interest groups participating in the administrative process and to consider “looking within interest groups,” referencing the manner by which interest groups determine the views of their constituents, “to illuminate the quality and nature of participation in administrative governance.”24 Tabatha Abu El-Haj has urged greater use of universal benefits and targeted philanthropy, to encourage the growth of mass-membership organizations, since both “create reasons to organize on the part of beneficiaries.”25 Both of us have written about the countervailing role that labor organizations can play in politics.26 And Daryl Levinson and one of us have written about the ways in which ordinary public policy often has the effect—and at times the intent—of mobilizing political organization around the policy.27
Meanwhile, another group of legal scholars has highlighted the importance of social movements and their organizations in legal change, focusing on how movements shape decisionmaking by courts, legislatures, and administrative agencies.28 In particular, a rich literature has developed on the relationship between popular mobilization and evolving constitutional principles,29 and on how “cause lawyers” can best serve social movements.30 More recently, there has been a resurgence of scholarship that “cogenerates legal meaning alongside left social movements, their organizing, and their visions.”31 This work builds on an older tradition of critical legal studies and critical race theory that interrogates the limits of traditional legal rights in bringing about progressive social change given the political, economic, and social conditions that systematically disadvantage poor people and people of color.32
To date, however, no one has tackled directly the question that we pose here.33 Rather than asking how the enactment of substantive legislation or administrative-participation mechanisms might boost organizing, how social movements can or hope to reshape law, or how a focus on traditional legal rights disables fundamental social change, we ask how law could be used explicitly and directly to enable low- and middle-income Americans to build their own social-movement organizations for political power.
The question is particularly urgent today as the COVID-19 pandemic has exacerbated society’s existing inequalities. Working-class communities, especially low- and middle-income people of color, have experienced hardships as a result of the disease to a far greater extent than the wealthy—from massive unemployment to dangerous working conditions, from food insecurity to rising debt and risk of eviction.34 The suffering wrought by the pandemic, as well as by the financial crisis of 2008, has led to an upsurge in protests by low- and middle-income Americans, particularly among workers, tenants, and debtors.35 At the same time, endemic violence against Black communities, including the recent killing of George Floyd, has led to widespread organizing around issues of racial justice.36 These movements demand that government respond to the concerns of ordinary Americans and attempt to elicit better treatment from powerful actors. Yet, despite their promise, such movements face significant obstacles in translating their members’ anger into robust and lasting political power.37 A pressing task, therefore, is to ask how law can facilitate and protect these new and revived protest movements, helping to create durable organizations that can exercise sustained power in the political economy.
We start from the premise that the robustness of countervailing, mass-membership organizations should be understood as a problem both of and for law. The shape of civil society and organizational life is already a product of legal structures and rules.38 And although law has frequently been a tool of oppression, rather than of empowerment, of poor and working-class people and movements,39 alternative legal regimes that encourage the growth of and the exercise of power by social-movement organizations of the poor and working class are possible. Indeed, for those who are committed to decreasing political inequality, alternative legal structures that encourage the growth of countervailing organizations are imperative.
In analyzing how legal and institutional reforms could facilitate a different picture of organizational and political life in the United States, we draw from the successes and failures of labor law—the area of U.S. law that most explicitly and directly creates a right to collective organization for working people—while also moving beyond that context to literature considering “how, in what forms, and under what conditions social movements become a force for social and political change.”40 We do not attempt to adjudicate priority among factors that contribute to successful organizing, nor do we attempt to build an exhaustive list of such factors. Instead, we consolidate factors that have two attributes: (1) they are likely to contribute to the successful building of membership organizations among poor and working-class people, and (2) their existence or development might be enabled by law.
We recognize that some factors, undoubtedly critical to successful organizing, are beyond the reach of our proposal. For example, sociologists and historians have demonstrated that several structural opportunities helped facilitate the growth of the Civil Rights movement, including the collapse of cotton; the increase in Black migration and electoral strength; and the advent of World War II and the Cold War.41 These kinds of objective structural conditions, exogenous to movements themselves, are frequently important to movement formation, but they cannot be directly affected by the kinds of legal reforms we suggest. Likewise, sociologists have shown that strategic leadership within organizations is critical to movement success,42 but internal leadership dynamics are not easily affected through legal regulation.43
Three additional principles guide our analysis. First, because small-scale, concrete victories are essential to successful organizing, and because organizing tends to be most successful among people with shared identities and existing relationships, we focus on reforms that enable organizing within particular structures of authority and resource relations. By way of examples, we consider organizing among workers, tenants, debtors, and recipients of public benefits. We pick these contexts in part because they are ones rife with exploitation and power imbalances and populated by the relevant income groups, and in part because they are home to important organizing efforts, both historical and contemporary.44 We do not suggest that these are the only relevant contexts in which our suggestions might be explored, nor do we in any sense imply that broader organizational development encompassing poor and working-class people as a whole is impossible or ineffective. In fact, the context-specific organizing regimes we envision might well facilitate broader community-based and political organization. However, we leave for another day exploration of how the law might directly enable broad-based political organization—say, a political organization of all poor people or a political-party system that incentivizes grassroots participation among nonwealthy individuals.45
Second, we focus on how law can build organization, as opposed to more amorphous configurations of insurgency. The organizations our reforms seek to facilitate are very much social-movement actors, in that they seek to change “elements of the social structure and/or reward distribution of a society.”46 But the goal is to encourage enduring organization that can wield sustained, countervailing power.47 Thus, our approach rejects the idea that formal structures facilitated by law are necessarily deradicalizing and inimical to social change.48
Finally, our focus is on how law can facilitate organizations of working-class and poor Americans—not on either of two other questions: one, how law could be designed specifically to enhance the political power of communities of color, or two, how law could encourage the formation of interest groups generally. The first question could not be more critical. Just as our government is disproportionately responsive to the wealthy, it is also disproportionately responsive to white people,49 and the crisis of structural racism is perhaps the most acute we face as a nation. As such, a program for building political power among communities of color is just as necessary as a program for building power among workers and the poor. But it is also true that our focus on working and poor Americans ought, in practice, and in part due to the crisis of structural racism itself, to amount to a program for building power among and by communities of color. This is not the exclusive reach of our proposals, and continued attention must be paid to ensure that racial inequities do not infect the political organizing we aspire to enable. But because people of color are over-represented in the sectors of the population that we do address—low-income workers, tenants, government-benefits recipients, debtors—these communities would likely benefit from the success of our proposals. As to the second question, while a more expansive civil society may bring a host of benefits, including greater social cohesion and civic education, this Article’s concern is with building organizations that can serve as a countervailing force to the extraordinary power of economic elites in our political economy.50
We argue that a legal regime designed to enable this kind of organizing should have several components. First, the law should grant collective rights in an explicit and direct way so as to create a “frame” that encourages organizing. Second, as importantly, though more prosaically, the law should provide for a reliable, administrable, and sustainable source of financial, informational, human, and other relevant resources. Third, the law should guarantee free spaces—both physical and digital—in which movement organization can occur, free from surveillance or control. Fourth, the law should remove barriers to participation, both by protecting all those involved from retaliation—no worker may be fired, no tenant evicted, no debtor penalized, and no welfare recipient deprived of benefits because they are active in or supportive of the movement’s efforts—and by removing material obstacles that make it difficult for poor and working people to organize. Fifth, the law should provide the organizations with ways to make material change in their members’ lives and should create mechanisms for the exercise of real political and economic power, for example by providing the right to “bargain” with the relevant set of private actors and by facilitating organizational participation in governmental processes. Finally, the law should enable contestation and disruption, offering protections for the right to protest and strike.51
The particulars necessarily vary by context. For example, a law designed to generate organizing among tenants would start by affirmatively granting tenants the right to form and join tenant unions. It would grant such unions the right to access information and landlord property for organizational purposes. It would vest the organization with authority to collect dues payments through deductions from rent payments. It would mandate that landlords negotiate with tenants’ organizations over rent and housing conditions. It would ensure that organizations have special rights of participation in administrative processes related to housing policy. And it would provide for the right of tenants to engage in rent strikes and protests, free from retaliation. A law designed to facilitate organizing among debtors would similarly create a collective frame, provide a mechanism for funding, protect against retaliation, mandate bargaining and rights of participation in governance, and protect the right to protest and strike, but a debtor-organizing law might not provide for access to physical spaces, instead putting more emphasis on providing information and enabling online organizing.
Some of our proposals will generate resistance—theoretical, legal, and political. And, indeed, we concede that our approach has limitations. For example, we do not attempt to articulate the optimal level of political influence that the organizations in question ought to enjoy, nor a way of measuring when and whether they have become sufficiently strong. As Richard Pildes has written in a related context, we believe it is possible to “identify what is troublingly unfair, unequal, or wrong without a precise standard of what is optimally fair, equal, or right.”52 In addition, the scope of our inquiry is limited to problems of economic inequality. Yet we do not mean in any way to minimize other aspects of inequality, including racial and gender discrimination and hierarchy, which are both inseparable from economic inequality and worthy of separate examination and intervention. To that end, we believe law ought to require inclusion and nondiscrimination among poor and working people’s social-movement organizations.53
Finally, we recognize both that our recommendations will not provide a panacea to the imbalance in power that characterizes our political economy and that our proposals will be difficult to enact. Indeed, although we suggest a range of possible reforms and explain how they could be achieved, the goal is to illuminate law’s constitutive potential and to suggest a path for further work, not to provide a comprehensive blueprint.54 In short, analysis of what makes poor and working people’s social-movement organizations succeed helps show that law can make a difference—and that the absence of such law is a choice, one we believe our society cannot afford to make.55
The remainder of this Article proceeds as follows. Part I describes the problem by tracing the relationship between rising economic inequality and the decline of mass-membership organizations, on the one hand, and political responsiveness on the other. It also explains why this form of inequality is a problem, theoretically, for a democratic republic, and describes existing approaches to using law as a mechanism for addressing political inequality. Part II details, at a high level of generality, the promise of legal intervention to encourage organization, drawing on historical and contemporary examples and underlining the extent to which the absence of such regimes is a political choice that favors a particular distribution of power. Part III uses social-science research and lessons from labor law to elaborate the conditions necessary for poor and working-class organizations to thrive and explains how law can facilitate the existence of such conditions in a range of contexts. Finally, in conclusion, we explain why progress toward a law of organizing might be feasible, notwithstanding significant obstacles.