Law, Organizing (and Philanthropy) in the Radical Fund

Guest Blogger

For the Balkinization symposium on John Witt, The Radical Fund: How a Band of Visionaries and a Million Dollars Upended America (Simon and Schuster, 2025).

Benjamin Sachs

For anyone interested in the contemporary labor movement, and in efforts at revitalizing it, John Witt’s The Radical Fund is important reading. Indeed, the book is uncanny in its relevance for contemporary labor movement trends, challenges, and opportunities. One obvious way this is true goes to the core of the book’s project: the contest in the early 20^th century over the role of philanthropy in supporting the labor movement, related with masterful storytelling, sheds light on those same questions in contemporary practice. Indeed, there are concrete lessons to be learned here. To take one example, the importance of Brookwood Labor College (nearly forgotten today) to the sweep of labor activism across these years – from the role it played in realizing Sidney Hillman’s new unionism to the contribution it made to the success of the sit-down strikes of the 1930s – suggests that philanthropic support for a re-imagined system of labor education should be higher on philanthropy’s agenda today. 

But it is another aspect of The Radical Fund that I want to highlight: namely, the history the book tells about the relationship between law and worker organizing. This question of how law and organizing relate has been the focus for a set of legal scholars over the last few decades and is now the subject of an extensive body of scholarship. In addition to other essential historical work on the subject, early works in the “law and organizing” literature proper include Scott Cummings and Ingrid Eagly’s A Critical Reflection on Law and Organizing and Jennifer Gordon’s book We Make the Road by Walking. More recent work includes Greg Balz’ writing (e.g., Resurrecting the Rent Strike Law), Cummings and Elmore’s Mobilizable Labor Law and a pair of articles by Kate Andrias and me (Constructing Countervailing Power and The Chicken-and-Egg of Law and Organizing) along with critiques of that work like Catherine Fisk’s The Once and Future Countervailing Power of Labor. The animating question in all this scholarship is how law can best be understood and deployed by organizers to build power with and for workers.

Reading Witt’s book, I was first struck by the bare fact that this question – the law and organizing question – was explicitly a subject of debate in the early 20^th century world that Witt brings to life. Organizers and movement leaders argued over the question, philanthropists running the Garland Fund struggled over it, and movement lawyers took divergent positions on it. The fact that the question, which animates law and organizing scholarship today, was central to the thinking of labor movement players in the early 20^th century – in the heyday of the labor movement – reaffirms that the question is one with major stakes. 

But, beyond this, the book animates three different conceptions of the relationship between law and organizing, which are helpful in thinking about the problem today. I’d categorize those conceptions as: (1) law is and always will be a disaster for worker organizing because law is a tool of class power and cannot be used to shift power; (2) while law is most often used to suppress organizing, it can also be deployed as a useful locus around which organizing campaigns can be built; and (3) law can be useful, not as a tool for organizing, but as an architecture for building lasting institutions into which the energy of organizing can be channeled and thereby preserved. 

The first view of the relationship between law and organizing is the most familiar and the most straightforward. On this view, law is a product of class power and can be expected to reproduce class relations. The idea of using law to facilitate organizing by workers against employers amounts to something like a category error. On Witt’s account, this was essentially the view of The Fund’s central protagonist, Roger Baldwin. Thus: 

Baldwin suspected that expanding the state’s apparatus would undermine labor’s real power. At the heart of his opposition lay a sense, as the ACLU’s resolution against the Wagner Act put it in 1934, that workers’ rights were enforceable by ‘economic power and organized labor alone.’ ‘Capitalist courts,’ as Dunn and Michaelson put it, would never deliver class justice. 

It was at times also the view that A. Phillip Randolph expressed: “Randolph,” Witt writes, “had once protested the ‘entire warp and woof and fabric of American law’; he had scorned the law for its spirit of inequality, injustice, and prejudiced administration.” And perhaps of greatest import, this was in large measure the view of the American labor movement for much of the era: 

For a generation, the principal strategy of labor unions in the courts had been defensive: to protect workers from the injunctions issued at the behest of employers. The ‘best thing the state can do for labor,’ wrote Samuel Gompers in 1901, ‘is to leave labor alone.’ The radical wing of the American Fund . . . offered a left-wing version of the same defensive strategy. The injunction problem, fund trustee Scott Nearing proposed, was proof of ‘the conflict theory of the state.’ ‘It should be taken for granted,’ Nearing explained, ‘that the capitalist state is against labor.’ 

But the allergic posture toward law was not the only one embraced by the Fund and its participants. Witt also excavates a second view of the relationship, a less obvious and more nuanced view, that will be familiar to contemporary law and organizing scholars, even though the historical antecedents that Witt develops are new. Witt describes this second view as involving the use of law “to create focal points for organizing.” Jennifer Gordon and Francesca Polletta, among others, have described law as functioning in similar ways in contemporary settings. Writing about recent organizing by garment workers in New York, I have pointed to the ways the law can serve as the “locus of workers’ organizational activity.” 

Witt’s primary example of law as a focal point for organizing is Randolph’s campaign to organize the Pullman Company’s sleeping car porters. While the organizing effort was far broader than this, Witt explains how Randolph deployed a three-pronged legal strategy to focus and advance the organizing campaign. First, Randolph sought to have the National Mediation Board – created under the then recently-enacted 1926 Railway Labor Act – certify the union (the Brotherhood of Sleeping Car Porters) as the legitimate collective representative of Pullman porters. Second, the union asked the Interstate Commerce Commission to ban tipping on the railroads. The legal theory was that, by allowing tipping, the railroads were imposing a hidden charge; the organizing idea was that by making porters reliant on tipping, the railroads were effectively requiring them to work without sleep for the multi-day duration of a railroad trip. And third, the union sued Pullman seeking to prohibit the company from holding an election for a company union, on the ground that such a procedure would interfere with the Brotherhood’s RLA right to represent the porters. The legal strategy was not successful – either in securing legal victories or in galvanizing much organizing – at least not in the short run. And it would be helpful (though, of course, maybe not possible) to know more about how Randolph used these legal tools to focus the organizing efforts. But the campaign clearly stands as an early antecedent to one of the primary ways organizers deploy law today. 

The third view of the relationship between law and organizing involves law – not as a nexus for organizational activity – but as being essential to the institution building that follows organizing. Essential, that is, to the building of durable institutions that can harness and sustain organizational energies after the intense period of mobilization ends. Witt’s examples of this relationship center around Sidney Hillman’s vision for a “new unionism.” For Hillman, as Witt describes, the successful building of worker power depended on both organizing – including strikes and pickets – and institutionalization. Hillman thus sought to “[e]mbed[] revolutionary goals in durable institutional foundations” as the means to ensure that “the working class would gain a voice in the direction of the economy.” One such institution was labor arbitration: this “law bound” process would ensure that workers had a sustainable mechanism for voice at work even when they were not striking and picketing. Thus, Witt describes “the heart of Hillman’s vision” as follows: “He would fiercely defend the right of labor to strike. He would stand up for union power. And he would also put in place systems to preserve that power over time. . . . Labor arbitration gave workers a place at the table . . . . [T]he arbitration mechanism replaced the rule of the bosses with a rule of law for a durable system of peaceful dispute resolution.” 

This vision of law as an architecture to institutionalize organizing victories reaches its apex in the passage of the Wagner Act in 1935. Indeed, that statute gives workers enforceable federal legal rights to construct just such institutions: to turn organizing energy into unions that have the imprimatur of federal law, and the federal right to insist not just on arbitration but on a far more fulsome (if equally “law bound”) process of collective bargaining. As Witt puts it, the “Wagner Act codified a system of union recognition, collective bargaining, and grievance arbitration astonishingly close to the new unionism Hillman had long envisioned.” Of course, as Witt recounts, the labor Act is critiqued (as Hillman’s new unionism was critiqued) on just such grounds – as being too law-bound and too institutional, and as unduly deradicalizing the labor movement. “The danger,” in Witt’s words, “was that institutional structures would lull the energies of a movement that was nothing if not propelled by the fuel of solidarity.” Those critiques have remained alive since the Act’s passage, reflected prominently in the writings of authors like Piven & Cloward who contend that institutionalization is the death-knell of social mobilization and working-class movements. But for many other writers (from Doug McAdam to Kate Andrias), the importance of durable institutions to the long-term success of organizing efforts, and the critical role that law plays in building such institutions, has seemed clear. 

So, three views of the relationship between law and worker organizing, each with prominent supporters and prominent practitioners, in the world of the American Fund. But there was another rather obvious way law might have been used to fuel organizing that the Fund did not embrace. That is the use of law to root out race discrimination by unions. As Witt details, many unions during these years embraced multi-racial organizing and had multi-racial memberships. But many did not. The Fund and its directors were well aware of the problem and understood that race discrimination by unions was a serious impediment both to the racial justice that the Fund pursued in other contexts and to the economic empowerment of the working class that was central to the Fund’s mission. For a Fund committed to the inseparable pursuit of racial equality and economic fairness, race discrimination by unions should have been an obvious and primary target. But it was not. Indeed, the Fund eschewed the use of law in this domain – it allocated “no money for challenging discrimination by Jim Crow labor unions.” Perhaps most pointedly, Witt describes how Charles Hamilton Houston, who handled the Steele litigation in which the Supreme Court outlawed a set of racially exclusionary union practices, had to do so after being turned away by the Fund. 

One explanation for this lacuna is that, in the words of Fund director Freda Kirchwey, support for lawsuits against racially discriminatory unions “was dynamite for the Fund’s labor union constituencies.” Which brings us back to the relationship between philanthropy and the labor movement. Witt describes a Fund that was populated by some of history’s most visionary labor movement leaders. Among the most important of the Fund’s contributions was the incredible network of activists it forged. And, of course, for foundations to make decisions that are informed by the real world of worker organizing and responsive to the actual needs of labor movement organizations, they need to be advised by representatives from those organizations. But there is a risk to the seamlessness that Witt describes between the Fund and the funded. The risk that foundations will fail to support efforts that threaten the institutional interests – real or perceived – of their constituent groups, even when doing so is in the long-term interests of the movements those groups exist to advance. Nothing could have better advanced the Garland Fund’s mission than efforts like Houston’s to root out race discrimination in unions. Yet Houston’s efforts went unfunded. And so another insight of The Radical Fund may be that foundations can play a critical role in ensuring movement success by maintaining a healthy amount of distance – and independence – from the movement organizations they aim to engender.

Benjamin Sachs is Kestnbaum Professor of Labor and Industry, Harvard Law School. You can reach him by e-mail at bsachs@law.harvard.edu.