In a recent Forbes article, U.S. Unions: Uncivil on Civil Rights, Harry Alford and F. Vincent Vernuccio criticize the argument for making labor organizing a civil right advanced by me and Richard Kahlenberg in Why Labor Organizing Should be a Civil Right. Alford and Vernuccio dismiss the idea that the right to organize over the terms of one’s employment is a civil right that implicates important First Amendment concerns, and instead argue that the “true affront” to workers’ civil rights is the Davis-Bacon Act. Passed in 1931, the Davis Bacon Act requires most federally funded construction projects pay workers the “prevailing wage,” which the Supreme Court has described as “[o]n its face, the Act is a minimum wage law designed for the benefit of construction workers.” (United States v. Binghamton Const. Co. (1954)).

The crux of the authors’ argument is that some members of Congress passed the Davis Bacon Act in 1931 to protect white workers from low-wage black labor from the south, and therefore a commitment to civil rights requires the repeal of Davis Bacon. The problem with this argument is that it ignores the unfortunate fact that a great deal of American legislation has been stained by racism, including the Constitution and important pieces of progressive legislation like the Social Security Act and the National Labor Relations Act. In spite of some of the early nefarious intents, much of this legislation have had the effect of benefitting minority workers immensely.

In arguing for the repeal of the Davis Bacon Act on civil rights grounds, the authors choose to focus almost entirely on the origins of the Act rather than on the federal government’s recent experiment in suspending the Act. After Hurricane Katrina devastated the Gulf Coast in 2005, President Bush declared a national emergency and suspended the Davis Bacon Act in hurricane-damaged areas of Alabama, Florida, Louisiana, and Mississippi. Many conservatives hailed President Bush’s decision to suspend the Act, which he stated would “result in greater assistance to these devastated communities and will permit the employment of thousands of additional individuals.”

Two months after the suspension of the Act, Davis Bacon was fully reinstated because construction firms acted predictably: Instead of hiring many of the recently unemployed workers of the Gulf Coast, construction firms brought in migrant laborers at cut-rate wages. The influx of new workers at depressed wages adversely affected the temporary housing market and employment, with the worst of it being borne by the African-American communities of the Gulf Coast. For all the warts in the legislative history of Davis Bacon, it turned out that the Act was serving to protect the economic security of African-American workers, and its brief suspension has caused long-lasting problems in the Gulf Coast.

It is only by ignoring this recent experiment with suspension of Davis Bacon and the adverse effects it had on workers that Alford and Vernuccio are able to argue that the Act should be repealed on civil rights grounds. And it is only by ignoring the myriad problems that workers face on a daily basis that they are able to argue that the civil rights fight of our day should be the repeal of a prevailing wage law. This argument follows the current conservative trend of trying to divide workers by recasting the problem from the fact that most workers do not receive their fair share and do not have a voice in the workplace to one where some workers receive protections through legislation or unionization. Having mounted a full offensive against public employees, now conservatives are going after employees that receive certain legislative protections.

Furthermore, in advancing the argument that the true civil right for workers is not the right to have a voice in the workplace but rather to work for less, they illustrate well a point that Rick and I made in our book: the proposal to make labor organizing a civil right will be difficult for opponents to mischaracterize because Americans have an almost intuitive sense of what civil rights mean. Unlike labor law, civil rights have become so legitimated in American culture that it is difficult to mischaracterize the issue. From Ann Coulter’s bizarre response that civil rights only apply to African-Americans (and not to other racial or ethnic groups, sex, or religion) to this response that the true civil right is to lower the minimum wage for workers, conservatives have been unable to formulate a coherent and credible response to the idea that workers have a civil right to organize. Instead of debating labor rights in the arena of labor law, where conservatives have seized and controlled the upper hand for decades, workers’ rights should be fought on the field of civil rights, where progressives have retained the moral high ground and power.