Daryl Levinson and I just posted our new paper, Political Entrenchment and Public Law (125 Yale L.J., forthcoming 2015), on SSRN. Although the paper makes an argument about political entrenchment broadly, it uses labor law as an animating example and so the piece may be of interest to OnLabor readers. “Entrenchment” denotes the range of mechanisms that incumbents use to hold on to their offices, or to prevent the repeal of their favored policies. When legal academics write about and condemn entrenchment, they point to formal aspects of the electoral system, things like poll taxes, gerrymandering, and certain campaign finance rules. What Daryl and I show is that incumbents are just as likely to entrench themselves in office by manipulating substantive legal policies. So, in the South in the 1940s, the Democratic Party kept its hold on power by imposing poll taxes and franchise restrictions. But, when the CIO tried to reorient the Party by organizing southern workers and by actually paying poll taxes for African Americans and poor whites, Democrats responded by enacting a rash of labor law reforms designed to incapacitate the CIO. More recently, of course, Republican legislatures across the country have enacted labor law reforms designed, in part, to maintain Republican hold on office. From the Introduction:
[P]olitical actors intent on entrenching their preferred parties or policies need not resort to manipulating the formal ground rules of elections or legislation. Consider recent changes to public-sector labor law. Labor unions provide essential support to Democratic candidates, mobilizing pro-Democratic voters and funding the logistical and organizational infrastructure of Democratic campaigns. Seeking to defend their hold on power against Democratic challengers, Republican officeholders have enacted restrictive labor legislation for the purpose of weakening unions. In 2011, for instance, the Republican-dominated Wisconsin legislature overhauled the state’s collective bargaining laws to profoundly curtail unions’ ability to participate effectively in politics. In case the purpose of these measures was not apparent, the new restrictions exempted all the unions that had endorsed the Republican Governor in the previous election. The goal was to selectively incapacitate the Republicans’ political opponents. And not just at the state level: as Wisconsin’s Republican senate majority leader put it at the time, “[i]f we win this battle, and the money is not there under the auspices of the unions . . . President Obama is going to have a  much more difficult time getting elected. . . .” Wisconsin Republicans intent on undermining their political opposition and entrenching their party in office did not need to resort to disfranchisement or gerrymandered electoral districts. They could make use of labor law instead.
For those interested in our full treatment of the labor law example, the Introduction and Part II.B. will cover it. For those interested in the subject of entrenchment more broadly, here’s the abstract:
Courts and legal scholars have long been concerned with the problem of “entrenchment” — the ways that incumbents insulate themselves and their favored policies from the normal processes of democratic change. But this wide swath of caselaw and scholarship has focused nearly exclusively on the formal legal rules governing elections, the processes for enacting and repealing legislation, and the methods of constitutional adoption and amendment. This Article demonstrates that political actors also entrench themselves and their policies through an array of functional alternatives. By enacting substantive policies that strengthen political allies or weaken political opponents, by shifting the composition of political community, or by altering the structure of political decisionmaking, political actors can achieve the same entrenching results without resorting to the kinds of formal rule changes that would raise red flags from the perspective of public law. Recognizing the continuity of formal and functional entrenchment thus invites the question of why public law identifies and condemns the former while ignoring or pardoning the latter. Appreciating the prevalence of functional entrenchment also raises a broader set of questions about when impediments to political change should be viewed as democratically pathological and how we should distinguish entrenchment from ordinary democratic politics.