Virginia Sen. Mark Warner, one of the few remaining Senate Democrats who haven't co-sponsored the Protecting the Right to Organize (PRO) Act, finally spoke publicly about it at a press conference this week, and, well, it's about as bad as you'd expect from someone who waited until the last possible second to explicitly say where he stands on the issue.
It's also a reminder that, though he flies somewhat under the radar, Mark Warner is one of the grimiest members of the Senate Democratic caucus—and that as labor pushes to restore its influence on the Democratic Party, he's one of the main obstacles within the caucus to a pro-worker agenda.
"I support the right of workers to organize," Warner said. "I believe that the balance between workers and management tilts way too much right now...there's a lot to like in the PRO Act."
But, and there is always a but:
What I want to get to is how can we make some of the areas where I’d like to see some corrections, so that this very expansive piece of legislation could be supported on the floor.
[...]My fear is that parts of the PRO Act tries to fit all work into kind of a 20th-century classic W-2 employment status. I think there ought to be a way we can provide benefits, provide flexibility. I still think there is a role for labor organizations to help manage these benefits particularly for someone who has a variety of revenue sources coming in that meets workers where they're at in 2021, doesn't think we're going to return to a 1980s-style economy.
Warner then promoted his "portable benefits" plan and namedropped the National Domestic Workers Alliance and the Freelancers Union, both of which support the PRO Act. "I look forward to working with them and members of traditional organized labor to get to a spot that will allow me to support all of the other good things in the PRO Act, but also has a forward-leaning view of what work looks like in the 21st-century," he said. What was that about purity tests, or perfect being the enemy of the good?
As More Perfect Union noted in the above tweet, Warner is parroting a common and wrong argument against the PRO Act—that it's an employment law like AB5 in California because it uses a set of criteria known as an ABC test to determine whether or not someone is an employee. But as the National Writers' Union-Freelance Solidarity Project (of which I am a dues-paying member) put it in a March statement of support for the PRO Act, the ABC test would be used "solely for the purposes of unionization and collective bargaining under the National Labor Relations Act." As former NLRB chair William Gould explained to the Sacramento Bee in March, the PRO Act wouldn't touch state-level employment law, or the Fair Labor Standards Act, which regulates minimum wage and overtime.
While employment status itself wouldn't be altered, the PRO Act would make it harder for employers to misclassify workers and easier for independent contractors—who are currently not covered under the NLRA—to organize a union with the protection of federal labor law. Not only do those protections not exist right now, as NWU board member David Hill told the New Republic back in March, but independent contractors who engage in concerted activity for which employees are currently protected "potentially risk violating the Sherman Act and antitrust laws."
To hear Warner tell it, the transition away from stable 40-hour-a-week jobs with benefits toward having several freelance or independent contractor gigs at one time is just something that happened. It's part of the natural course of history rather than an intentional choice by companies to stiff workers in order to save on costs and boost their margins. It seems to have never crossed Warner's mind that the people actually engaged in the "changing nature of work" actually might think it sucks, or more importantly, that policymakers can play a role in what work looks like.
This isn't exactly surprising coming from Warner, considering the trajectory of his business and political career. But it does highlight how the increasingly liberal bent of states like Virginia and Arizona—home to the other two Democratic senators who haven't co-sponsored the PRO Act, Kyrsten Sinema and Mark Kelly—has so far not translated into support for labor. It also gives us a chance to reacquaint ourselves with the many unsavory aspects of Warner's Senate tenure.
Since Warner first won election to the Senate in 2008, he's consistently been either the richest or one of the richest people in Congress, with an estimated net worth of over $200 million. Warner made that money as a tech and telecommunications investor and he has "a broad and close network of tech executives and investors," according to a 2017 New York Times. As Truthout reported last month in the wake of the failed Amazon union drive in Bessemer, AL, Warner has received more than $44,000 in contributions from Amazon employees, much of it coming from top executives.
These include Jay Carney, the former Obama White House press secretary who is now Amazon's senior vice president of global affairs ($5,500 donated to Warner since 2017); David Zapolsky, the company's general counsel who wrote a memo last March calling employee and organizer Christian Smalls "not smart or articulate" ($5,400 in 2018); and Dave Clark, the global logistics chief who once bragged about getting his nickname "The Sniper" for hiding in the shadows at Amazon warehouses so he could look out for people who weren't working fast enough so he could fire them ($5,600 in 2019).
Warner might not get the same level of attention as Manchin, Sinema, or Chris Coons when it comes to trying to create bipartisanship for the sake of bipartisanship, but he's been in so many "gangs" it's a wonder he hasn't been indicted on racketeering charges. In December, Warner was part of a group which negotiated a COVID relief package that contained no stimulus checks. Warner then pushed back on Bernie Sanders' demand to include another round of stimulus checks in the bill, at one point saying Sanders and other progressives had "never negotiated any deal that I think has ever been successful." (As it turned out, Sanders won the argument—$600 ended up in that bill, and then another $1,400 ended up in the third bill passed in March.)
Warner's kind of pro-boss worldview became apparent early in his Senate career. Almost immediately after Warner took office in 2009, he was targeted incessantly by business groups and conservative PACs promoting right-to-work as a potential vote against card check, which would have required employers to recognize a union once a majority of employees signed cards of support. (A slimmed-down version of card check, which would only come into play in cases of election interference, is in the PRO Act.)
Despite Democrats holding a filibuster-proof majority at the time, there were enough Democrats opposed to making it easier for workers to unionize to kill card check. But if the Chamber of Commerce set thought Warner might be an easy flip, there was a good reason for that.
During his first run for Senate in 1996, Warner was asked in a debate by then-Sen. John Warner (no relation) whether he would support a national right-to-work law prohibiting the requirement that workers benefitting from a union pay their fair share of dues, and responded, "I strongly, strongly support Virginia's right-to-work laws, but I don't think we ought to federalize them." Warner (Mark) lost that one, but five years later ran for governor and won. During his four years in office, Warner doesn't appear to have talked much about the state's right-to-work law—which was passed in 1947, when Virginia was a one-party Dixiecrat state—but there's not much reason to believe he changed his mind. His lieutenant governor and successor, Tim Kaine, also supported right-to work, as has every Virginia Democratic gubernatorial nominee since, including current Gov. Ralph Northam.
Warner's office did not respond to Discourse Blog's questions about Virginia's right-to-work law, or the provision in the PRO Act which would pre-empt it.
Kaine is proof that people can be dragged in the right direction, as he both co-sponsored the PRO Act and backed a "middle ground" reform (whatever that means) to Virginia's right-to-work law in 2019. But Northam opposed it, and after socialist Del. Lee Carter tried to force a vote on the bill in February the House of Delegates overwhelmingly voted it down. As Douglas Williams wrote for Strikewave in March, labor unions in Virginia are the "proverbial redheaded stepchild, condemned to receiving the scraps of politicians they helped to put in office."
The argument that Arizona is too much of a swing state for Sinema and Kelly to support a law that would help workers and expand the reach of unions—which two-thirds of Americans support—is bad enough. Warner has no such excuse. Virginia is now as solidly Democratic as it's been in decades. Its electorate is more progressive than it's ever been; Joe Biden won a larger share of the vote in Warner's state than he did in Maine and Minnesota, by a larger margin than any Democrat since Roosevelt, and Biden supports the PRO Act. What's the deal?
Warner is playing the bipartisan broker game not because that's the cost of doing business, but because that's what he wants to be. And until he changes his tune, workers in Virginia and across the country are going to suffer for it.