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There’s a constituency for Janus

(Note, in my quotations below I have un-bolded some otherwise bolded items. I have redacted some information that would identify my worksite or the state for which I work.)

It’s not only billionaires and cynical anti-unionists who sought the result in the recent decision in Janus v. AFSCME. (This decision, you’ll recall, invalidated compulsory fair-share dues payments for public-sector unions. (See Em Carpenter’s excellent summary). Some people have good-faith reasons to oppose compulsory fair share requirements and to oppose public-sector unions. Public-sector unions have done a poor job acknowledging those reasons.

My public-sector union gets it half right

The day after the Supreme Court’s decision in the Janus case, the parent organization for the public-sector union that represents my bargaining unit sent me an email. The purpose of this email was to encourage its members to remain members and to make sure they have kept their membership up to date. In addition to making arguments about the benefits the union secures for its members and (it claims) for the general public, the email also makes a number of statements about those who supported the Supreme Court decision:

  • “…it was disappointing to see powerful special interests take precedence over the best interests of hardworking middle-class Americans.”
  • “I want to remind you that [the governor of Sangamon] started this well-funded attack right here in [Sangamon]….[The governor] and his powerful friends have one goal – to eliminate unions. Why? Because our unions are one of the last checks on their control.”
  • “Be on the lookout for slick mailers, phone calls, and even home visits from anti-union groups….who will try to get you and your colleagues to quit the union. These groups are funded by ultra-conservative, wealthy benefactors who are only concerned about their bottom line, not our…members…or communities.”
  • “Commit to defeating [the governor of Sangamon] on November 6…..From [bad things the governor has done]…to [his or her] campaign against workers’ rights, [the governor] has failed [Sangamon]. [His or her] priorities are clear.”
  • “To those who want to attack our rights and rig the economy further against working people, we say this: we’re ready to fight powerfully for the future we all deserve.”

I’m not criticizing the fact that the union sent the email. I’ll assume it wasn’t composed using money from compulsory dues payments taken from non-members. And going forward, that will be a non-issue anyway.

The quoted portions have much truth in what they say. The governor of Sangamon really has energetically pursued a campaign against public-sector unions and has even advocated for anti-union-shop zones (also called right-to-work zones) in the state. I don’t doubt for a moment that I shall receive “slick mailers” from organizations that don’t have my interests or even the interests of the public at heart. I’ve received quite a number of “slick mailers” from the union to “educate” me about my voting choices, so it’s reasonable to expect something from the gander.

My public-sector union gets it half wrong

But there are other reasons someone might oppose compulsory fair share dues payments and public-sector unions. I understand the union thinks those reasons are mistaken, but as far as I can tell, the union’s main argument against them is that they’re non-reasons and that any person who offers those reasons are dupes or worse.

As an example of a good-faith reason to question public-sector unions, take this comment from Slade the Leveller, in the thread for Em’s post about the Janus decision:

I am a resident of IL. Let me state for the record that I am all in favor of unions. However, public employee unions are a different kind of animal. When they go to the bargaining table there is no one on the other side with a vested interest in keeping costs down. Too often, at least in Illiinois, excessive contracts are given to buy “labor peace”, usually in advance of some large event, e.g. Chicago’s failed bid to host the Olympics (thank God it failed!), or the start of the school year. The overly generous pension costs written into these contracts will eventually bankrupt the state of IL.

I offer no opinion on whether the Olympics would have been good for Chicago, and I’m probably more ambivalent about private-sector unions than Slade the Leveler seems to be. But I otherwise sign on to his comment.

I can respect a counterargument that goes,”what you say is true, but in the long-term, that’s an acceptable price to pay for what we and the public gets from public-sector unions.”  I can also respect a counterargument that tries to refute the premise on which Slade the Leveller bases his comment (“no one on the other side with a vested interest in keeping costs down”). I have a hard time imagining what that would be because I do accept the premise. But the parent union just ignores the argument altogether in its communications with its members. When it has to address the issue, say when it sends a spokesperson to TV news program, we hear more of the same assertions that “what this is really about is protecting working families.”

As for compulsory fair share fees, I’m no longer sure it’s wise to constitutionalize the argument against them. But even if those fees don’t rise to the level of “should or shouldn’t be constitutional” compulsory they do compel support for political advocacy from people who may not agree with that advocacy. I have yet to see a frank admission from my union that this is at least part of what is going on. Instead, I hear a recap of the free rider argument or the refrain of, “if you give up the dues, will you also give up the benefits?” Those aren’t bad responses, but a dissenter can be forgiven to reading them as shutting down any discussion.

Me and my public-sector union

Call it virtue-signalling or “useful idiocy” (it probably depends which side you’re on), but I rejoined my union in the wake of the Janus decision. I do this because I’d feel guilty getting the benefits without contributing. Before Janus, I could dissent and yet know I was still paying. One thing thing that makes my decision easier is that my union local is smart. For the most part, its leaders refrain from the sloganeering and strident tones its parent union and other public-sector unions have adopted. The few times I’ve raised concerns to the leaders about the union, I got a respectful hearing. They usually disagreed with me, but demonstrated they cared about my opinion. They didn’t ask me, “why do you hate hardworking middle-class families?” which is essentially what my parent union asks in its email.

I still consider myself an opponent of my union. I believe that it is part of a process that is bad for people with less seniority, bad for my institution, and bad for my state. I also have less noble motivations, including my own perceived self-interest and whatever contrarian thrill I get from being a “dissenter.”

I’m still on the fence about public-sector unions in general. If I were a legislator, I’d be strongly tempted to vote against compulsory fair share and even against collective bargaining for public-sector unions. I’m not a committed foe.

That’s for two reasons. The first is that public-sector work has in recent memory offered a friendlier entree to higher paying jobs for minorities and other lesser-advantaged than private-sector work has. To take a strong stand against public-sector unions works in part against those who have benefited from them. I’m inclined to believe that a strong union system limits access to those jobs by providing a disincentive to hire more people. But as a general rule, once someone gets one of those jobs, it’s a good opportunity, and usually (albeit not always) unions enhance the jobholder’s ability to keep that job with dignity.

The second reason is that while I am a public-sector employee, I realize my particular job is much more rewarding and less difficult than the jobs of, say, a public school teacher, a low-level office worker, a janitor, or a child support specialist. My formal education and some exogenous circumstances give me more and better options than those available to the typical worker. Those facts don’t refute what I take to be good arguments against public-sector unions, but they provide some context I can’t ignore when thinking about these issues.

Sendoff

It’s doubtlessly true that Janus could not have happened without the support of well-funded opponents of unions. Some of those opponents almost definitely harbor ill-intent. Others perhaps are not thinking through the implications of what they’re doing and could devote their resources to better, more urgent causes.

At the same time, Janus also happened because the constituency for it goes beyond cynical anti-unionists. There is a growing discontent with public-sector unions. That discontent, while not wholly deserved, is also not wholly disingenuous. Public-sector unions constitute an interest embedded in some states’ political economy, reminiscent of the “special interests” my union’s email warned me about. These unions are not evil for being an “embedded interest,” but they are a claim on public finances and they play a role in limiting the options available to states in straitened circumstances. Simply dismissing these concerns will likely solidify opposition and take Sangamon and similar states down the same road as Mitch Daniels’s Indiana or Scott Walker’s Wisconsin.

Photo Credit: Craig Fildes, U.S. Supreme Court. Creative Commons: Attribution-NonCommercial-NoDerivs 2.0 Generic. (CC BY-NC-ND 2.0).


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Gabriel Conroy [pseudonym] is an ex-graduate student. He is happily married with no children and has about a million nieces and nephews. The views expressed by Gabriel are his alone and do not necessarily reflect those of his spouse or employer. ...more →

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125 thoughts on “There’s a constituency for Janus

  1. Lots to think about in this essay.

    I disagree with the premise that there is “no one on the other side with a vested interest in keeping costs down.”

    If there wasn’t anyone striving hard to keep costs down, why is it that in my 14 years of public sector work, the best I’ve seen is “raises that at least roughly keep up with inflation,” and even that wasn’t happening for over half of my career because the employer’s negotiators successfully bargained for wage freezes for year after year while the economy wasn’t doing well. (Of course we still did annual performance appraisals even though the highest available merit increase was the same as the lowest: 0%. Ritual is a powerful thing.)

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    • I disagree with the premise that there is “no one on the other side with a vested interest in keeping costs down.”

      I agree, . It presumes that the negotiators have no interest in keeping costs down and that just doesn’t seem tenable. Sure, it’s not “their” money on the line but that doesn’t mean they don’t have a budget that they need to make work or constituents to answer to. And how is that fundamentally different from a private union negotiating with a corporation? That isn’t the negotiators money then either.

      I’ve actually heard a libertarian argument that public sector unions are often more justified than private sector unions because the employer is a monopsony (or near monopsony) purchaser and that purchaser is the government with all that entails politically.

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      • You may wish to read my comment/walk back below. It’s wrong to imply, as I did, that the other side had no incentive whatsoever to lower costs. And you’re definitely right that the other side usually has something like a budget and related expectations to work from.

        I hadn’t heard that libertarian argument before, so I don’t quite know what to make of it, other than that I’m inclined to think differently.

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    • I am not even sure it is the proper job of a union in the American context to advocate for lower costs. Maybe if we had German style worker’s councils where labor gets a say in the direction of the company is going but we do not.

      The job of a union is to advocate for their members and the workers. It is not to be a secondary supporter of management and the board of directors.

      As it is, Americans seem like the most likely to “take it on the chin” when management comes chopping and I can’t but help think this is to our overall detriment. I don’t remember who mentioned this but someone here once told a tale of a French VP coming to the United States to lay off a team of software engineers. The French VP was amazed that the American software engineers just took the news in a resigned state and went to HR to see what kind of severance they could get. According to the person, the French VP said he would be massacred if he tried to do something like this in France.

      We need a bit of fight back in our workers.

      Look at what happened to Toys R’Us from the private equity guy. Private equity squeezed it for all the money it was worth and then left thousands of workers without a pension or let-go pay. The workers were left high and dry.

      Why do American workers seemingly just take these face smashes without any push back?

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      • Because we don’t think of work as a commodity to be bought and sold.

        Economists and political types like to think so, and it makes our theories neat and tidy, but it just isn’t how we think of it.

        Deeply embedded in our culture is the idea that work is a moral imperative and there is shame in refusing to work.

        So an entity ruthlessly pursuing their self interest gets very different reactions, depending on whether it is a capital, or labor. Notice how Milton Friedman never said the only duty a labor union owed was to its members.

        What I find interesting is how freely we discuss the very existence of unions, while ignoring the fact that there is no natural right for corporations to exist.

        While we demand that unions somehow serve the common interest, we should be discussing what terms and conditions we demand in exchange for giving shareholders the privilege of being shielded by corporate immunity.

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        • What I find interesting is how freely we discuss the very existence of unions, while ignoring the fact that there is no natural right for corporations to exist.

          This is why I read this blog daily. This line of thought had never occurred to me, though upon reading it, it makes complete sense. Thanks, .

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          • This is one of those points I agree with Chip on quite a bit. Corporations have a fiduciary duty to investors, etc. because the law says it does (either explicitly, or implicitly because the law demands the corporation follow the paperwork it filed when incorporating). We can very easily change the law such that investors are not the primary beneficiaries of corporate profits. There will be consequences of such an action, both foreseen and otherwise, but it can be done.

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                  • Limited liability protects the investors, not just the owners.

                    Sole proprietorships are still subject to lawsuit abuse, but typically they don’t have deep enough pockets to make abusive lawsuits worth it (absent a grudge).

                    Being able to bring suit against the shareholders and investors of a company is a pretty juicy target.

                    But maybe I am wrong and their is some other mechanism at play.

                    ?

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                    • Perhaps one possibility is to have double or treble liability? I understand that at least in some states in the mid-1800s, such a situation existed.

                      Or perhaps there can be a threshold. If someone is a direct investor, then they’d lose limited liability while if someone is a portfolio investor, then they’d retain it. The trick would be in defining who’s who.

                      I’m not endorsing either of these options, just speculating on what’s possible.

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                    • One thing we should do is get rid of punitive damages where there is no fault on the part of the company (in cases where strict liability might otherwise apply). And cap punitive damages in proportion to the severity of the right that is violated. Compensation should strictly be proportional to the harm inflicted and the degree of liability for that harm. The size of the harm can be calculated via how much it will cost to make good on the harm.

                      Investors can also purchase liability insurance. So long as they are insured the insurance company will cover some fraction of the damages they are personally liable for.

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                      • My concern is less for the large investors, it’s for the guy with shares tied up in a 401K, or the like. If we are to do away with limited liability, we need to differentiate between investors who have enough influence over corporate activity to actually have liability, and investors who don’t.

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                        • 401ks as I understand it are usually diverse portfolios. The money owed can be garnished from the dividend from the remaining shares. There is also insurance and other similar financial instruments which can allay small risks of huge losses by converting them into certainties of small losses.

                          But maybe your point is that why should people who give their money to third parties to invest as they see fit be liable? the answer is that they should be held liable if things go wrong because they will reap the gains if things go right. To the extent that the 401k managers try to guarantee returns and skim off the top, they already take on the liability on behalf of the investor. There might be some extent to which ROI is going to take a haircut, but that is in part the point. Some amount of the ROI in the current situation is made at the expense of offloading risk onto innocent others. Internalising that risk is going to decrease on average the expected ROI. It would be absurd if 401ks remained just as investment worthy as before.

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                          • My demarcation would be, are you able to vote your shares? Can’t recall any of my 401K funds sending me ballots for the shares held by the fund, hence I can’t vote the shares and I should be protected by limited liability (note, if things go wrong, I can still lose, since bad press means a drop in share price and my fund not performing as well as expected). If I own the shares outright and can thus vote them, I give up LL for the right to vote the shares.

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        • Chip Daniels: What I find interesting is how freely we discuss the very existence of unions, while ignoring the fact that there is no natural right for corporations to exist.

          We’re talking public sector unions.

          We can certianly discuss if *government* has a natural right to exist. I’m familiar with the modern anarchist argument, from both right and left, though I don’t agree with either (in their entirety).

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          • Is anyone here really arguing against the right for a public sector Union to exist? Or is it more the recognition that public sector Unions are different than private sector Unions and thus require different rules?

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            • To be fair to Chip, I did write in my OP that “[i[f I were a legislator, I’d be strongly tempted to vote against compulsory fair share and even against collective bargaining for public-sector unions.” While that wouldn’t eviscerate public-sector unions’ right to exist, it would pretty much take away their main raison d’etre.

              To be clear, I’m not 100% sure I’d go that far. But I did offer it as something I might support.

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        • Chip Daniels:

          What I find interesting is how freely we discuss the very existence of unions, while ignoring the fact that there is no natural right for corporations to exist.

          While we demand that unions somehow serve the common interest, we should be discussing what terms and conditions we demand in exchange for giving shareholders the privilege of being shielded by corporate immunity.

          Then discuss them. What are your demands?

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          • Glad you asked!

            The People demand, among other things, that in exchange for enforcing the shield of individual liability for shareholders, the corporate charter adopts a public benefit.

            The idea is that since corporations would not exist were it not for the active participation of the public, the public is entitled to derive some benefit from them.

            Public benefit can be defined as paying a living wage, higher tax contributions, giving labor a seat on the board, or whatever. Just something more than what we would expect from a simple sole proprietorship.

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            • Oooh! Will there be a scale? Like corporations that provide a *LOT* of benefit will be able to get away with more stuff while corporations that provide less benefit will be able to get away with less?

              Like, Video Game Companies will be able to have stuff like unpaid internships but companies like McDonald’s will have to regularly have events that celebrate aspects of their communities?

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            • The thing is that limited liability exists to promote the public good. Limited liability makes its possible for people who don’t already know and trust each other to combine their resources. Without limited liability, all companies would be closely held by a handful of millionaires who know each other well, and it would be basically impossible for ordinary people to own part of these companies. Removing limited liability would also reduce the number of large businesses that could form, which would limit economic and technological progress.

              As limited liability serves a policy purpose on its own, it makes no sense to treat it as a concession to business owners that requires compensation.

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              • Shouldn’t the public be the ones to make that decision, though?

                My goal here is to stress how little this topic gets considered in our national discourse.

                Milton Friedman’s assertion that corporations have no other duty than to the shareholders rules our discourse.

                This other idea, that the public is sovereign and has the absolute right to determine when, or if, limited liability is working for our benefit is not a commonly understood idea.

                We need to empower the people with the knowledge that with a stroke of the pen, they created the corporate form, and with a stroke of the pen, they could alter it, or even end it.

                I completely agree that the corporate form has benefits, and should continue. I just want the people to be the master, rather than the other way round.

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                • I’m all in favour of people not treating current law as sacred writ, though I’m not sure why imposing a charitable mission on corporations is supposed to help anything. Giving an institution multiple goals isn’t really a good idea.

                  What makes corporations so effective is that they have a single, simple goal that is easy to evaluate and is liked to a enforcement mechanism (the market for corporate control) that only cares about results.

                  Seriously, using corporations as a revenue source for public works (and of course letting them do their business, which is of public benefit in and of itself) is a much better idea than trying to shoehorn extra goals into an institutional form that doesn’t really support them.

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              • I agree that there are public policy goods to incorporation as you note. It does not follow though that the sole job for a corporations and/or executives is maximizing shareholder value though. The C-suite can and has balanced their responsibilities between employee care, shareholder value, and broader societal concerns.

                Unions can also be a public good.

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              • The fact is, we already expect corporations to be socially responsible, so telling them that they can’t just be socially responsible when it fits within the bottom line isn’t a stretch.

                Now telling each corporation the form it’s social responsibility must take is a bridge too far, but insisting it outline how it intends to be socially responsible as a condition of it’s incorporation isn’t out there. The trick is finding objective criteria to determine what constitutes ‘socially responsible’ such that a corporation can’t just weasel word their way out of doing anything, nor can an official with an agenda deny incorporation because they don’t like the form of social responsibility a corporation choose to engage in.

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                  • We expect corporations to make large charitable donations, or to operate or sponsor charitable foundations/trusts/etc. They are under no obligation to do so, or to be actually engaged in altruistic or philanthropic activities, even when they have a foundation (!COUGH! trump !COUGH!), but a corporation that was not even maintaining the thinnest showing of philanthropic activity would be looked upon unfavorably.

                    I’m sure such corps exist, but not too many big ones do.

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                • My issue is that I believe this is impossible, any social responsibility requirement will either collapse into meaninglessness or become an excuse for governments to micromanage corporate activity in a way that would very socially harmful.

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                  • That’s my feeling as well, which is why I made sure to call it out. In an ideal world, it would be doable. But we live in a world where systems exist to be gamed, and any such requirement would be gamed hard by all players.

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                • I’m not thinking so much of “charity” as in a one way provision of benefit, but a public benefit more broadly.
                  The way we ask, “Does this new stadium/ tunnel/ harbor provide a benefit equal to the input of public funds?”

                  In real estate development, when a developer asks for variance from zoning restrictions, the planning staff are required to describe a justification in these terms, that the extra height/ density/ whatever will provide a clear benefit to the public to justify it.

                  I grant that this would be susceptible to gaming in all sorts of awful ways, but note that almost all laws are.

                  And again it isn’t meant to be a precise policy proposal as much as an agit-prop “lets change the way we think about our relationship” sort of thing.

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              • But surely limiting liability offloads some risk onto assorted other parties. i.e. it creates a negative externality. If that’s so, then a world with limited liability has an inefficiently high level of corporation formation. Moreover, it’s not entirely clear that there is a public benefit to the existence of corporations that people are already not otherwise compensated for. i.e. in a world without limited liability, people will on average invest in a business only if the expected returns exceed the amount invested. Insofar as workers are paid at market wages, there are no positive externalities that they’ve failed to internalise either. If limiting liability is really efficient, companies would offer terms of service that limit liability in exchange for lower prices or something.

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            • The People demand, among other things, that in exchange for enforcing the shield of individual liability for shareholders, the corporate charter adopts a public benefit.

              Does the public not benefit more from the goods and services provided by companies like Wal-Mart, Amazon, Home Depot, Target, etc. than the number of workers that the companies are potentially screwing with? If they couldn’t get people to buy from them, they wouldn’t exist no matter what legal structure was used to set up the companies, right?

              In exchange for the limiting the liability of equity holders in public companies, is the public benefit that these companies are subject to far greater scrutiny and transparency as a result of GAAP accounting, the Securities and Securities Exchange Acts, Sarbanes Oxley, Dodd Frank in some cases and other compliance measures.

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              • Does the public not also benefit from the wage standard set by public employee unions?

                This benefit, like the one you cite, are debatable. And should be debated in the court of public opinion.

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                • This discussion about corporations seems to be assuming that they are required only to maximize shareholder returns. I’m not sure that’s true, at least not in the categorical way in which several here seem to be suggesting. I’m no expert in corporate law, but it seems to me that corporations are bound by other rules, depending on the type of corporation they are and perhaps depending on their size or whether they are closely held or publicly traded.

                  Even if maximizing shareholder returns probably works in varied ways. What’s the time horizon? I can imagine a way an enterprise can maximize profits in the short term and yet barely break even over the long term, or vice versa.

                  I do agree with Chip, by the way, that we ought not make an idol of the corporate form as it exists today. It can indeed be altered and maybe there are ways to do so that serves the public good and yet meets the very good objections James K brings to the discussion.

                  Finally, I think this discussion seems to be making things an either/or proposition. Corporations benefit the public OR they harm the public. Why can’t it be both? Public-sector unions benefit the public OR they harm the public. Why can’t it be both?

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                  • gabriel conroy: This discussion about corporations seems to be assuming that they are required only to maximize shareholder returns. I’m not sure that’s true, at least not in the categorical way in which several here seem to be suggesting

                    Practically speaking, maximizing shareholder returns and hitting the quarterly estimates is critical to any CEO of a publicly traded company. Of course, every company is bound by the rules and regulations of their respective industries as well as securities law, but missing earnings estimates and underperforming carries with it consequences. The share price gets hit, the analysts may downgrade, the ratings agencies may downgrade (which increases the cost of capital) the shorts and activist-type investors may circle around, and capital may be harder to raise altogether. In highly competitive industries, the last thing you want is to have a sizable long position in a company whose management team you question to grow the company.

                    Even if maximizing shareholder returns probably works in varied ways. What’s the time horizon? I can imagine a way an enterprise can maximize profits in the short term and yet barely break even over the long term, or vice versa.

                    Both. Most important, you need the long-term story, and if you have that, I can see instances where investors can look at a lack of profitability in the short-term if the long-game is there. The opposite doesn’t feel a fit for long-term institutional investors (or even short term). Those kind of companies in theory feel like the penny stock type companies people day trade on, but that’s a whole other world.

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                    • It seems what you’re describing is what for-profit corporations have to do if they want to succeed or remain in business. However, when I talk about the assumption that corporations “are required only to maximize shareholder returns” I meant the assumption that they’re required by law to do so.

                      Maybe that’s not the assumption that people are making, but that’s what I take Chip et al. to be assuming. If that’s a misreading of what they’re saying, though, that’s on me.

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                  • gabriel conroy: I do agree with Chip, by the way, that we ought not make an idol of the corporate form as it exists today. It can indeed be altered and maybe there are ways to do so that serves the public good and yet meets the very good objections James K brings to the discussion.

                    I think Chip is right, but I don’t know who necessarily idolizes it. I think the alternative is unwieldy and sets an impossible standard. Plus, it’s more likely to impact the institutional investors that invest on behalf of mutual funds, pension funds, retirement accounts, etc.

                    To the either/or: I think companies can do both. Unions do neither. If you invest in a company that deals with the unions, you’re going to do your homework and understand that it’s a cost of doing business and what that means, at least I would.

                    Unions are the least of my worries these days.

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                • Does the public not also benefit from the wage standard set by public employee unions?

                  Care to explain how? My answer would be no if only because I see no benefit to myself nor understand how those benefits accrue to anyone other than the recipients and maybe some close indirect relationships.

                  This benefit, like the one you cite, are debatable. And should be debated in the court of public opinion.

                  And don’t you think decades of public discourse, declining labor union membership, a strong anti-union streak running through a significant part of the country and little if any political ability to remedy the situation says everything it needs to?

                  Why isn’t that sufficient for the court of public opinion? If you want it changed, go do the heavy lifting and get it done.

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                  • And don’t you think decades of public discourse, declining labor union membership, a strong anti-union streak running through a significant part of the country and little if any political ability to remedy the situation says everything it needs to?

                    Why isn’t that sufficient for the court of public opinion? If you want it changed, go do the heavy lifting and get it done.

                    As I’ve said in my OP, I lean more against unions than for them, but I don’t think the developments you cite really say as much as you’re suggesting.

                    The debate over unions, as over so much of public policy, is also about power. And over the years, since, say, 1935, those who oppose unions have gradually won the struggle for power. They did so by the “public discourse” and debate and by appealing effectively to the real (and sincere) anti-union streak you mention. But they also did so through the less than democratic means of the courts and expensive legal challenges, through the bureaucratic operations of the NLRB* and similar bodies, through the political brinksmanship that brought us Taft-Hartley,* through investigations into alleged (and often true) ties between organized labor and organized crime, and through counter-majoritarian veto points to stymie efforts that would empower unions. I’m not saying any of these developments are particularly nefarious in intent or even effect. But it’s not wholly about there having been a debate and the pro-unionists having lost that debate, although that’s important. It’s also that the other side was more powerful.

                    *I realize brinskmanship is a loaded word. One person’s brinksmanship is another person’s leveraging the political moment. And Taft-Hartley is a challenging example. Given that supporters mustered the two-thirds majority necessary to override Truman’s veto, the law obviously (to me) enjoyed significant public support.

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                    • At the end of the day, the question is “with whom do you have solidarity?”

                      Police have benefitted from having a huge number of people out there (“Normies”, I believe the kidz call them) who have solidarity with the cops. In any given situation where someone was in a situation with the police that the police later went on to use the passive voice to describe the situation, the general public was a lot more likely to say “play stupid games, win stupid prizes” than “what the hell?!? THERE NEEDS TO BE AN INQUEST!”

                      As cops (or authority figures in general) got more and more stupid/arrogant, they watched themselves lose solidarity with the general public.

                      The “Thin Blue Line” thing is/was pretty good counter-propaganda, all things considered.

                      Anyway, Unions work when the general public (union or otherwise) reads a story and automatically has sympathy for the union members. They don’t when the general public (union or otherwise) reads a story and then thinks “freakin’ unions”.

                      And that’s true if you’re reading about policepeople disabling body cams or if you’re reading about Twinkies.

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      • Its part of our Protestant heritage. Americans have inherited a very Protestant idea about work being good for its’ own sake even if they are not Protestants. There were contradicting strains of thought about work but because of being the majority option for a long time, Anglo-America’s distrust of unions, socialism, and the rest as alien and un-American, and capital the Protestant strain of thought won out.

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        • Here’s Alana Semuels in The Atlantic writing about her experience working as a driver for Amazon, and sharing her reader’s feedback.

          What is interesting is that some of the feedback is anger from other drivers who scold her and suggest she get used to it and “work hard”.

          Work Hard! is not economic advice, it is moral exhortation, something that we only apply to labor, never capital.

          So workers are caught in a trap; treated on one hand as free economic actors, and on the other as moral agents who should disregard the economic calculation.

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          • A lot of it is just Survivorship Bias. Over and over and over again.

            What did the people who succeeded do? Well, they’ll point out that they busted their asses, they never gave up, they skipped meals, they skipped out on having fun, they worked nights, they worked weekends, and did they mention that they busted their asses?

            And you know what? They did.

            But so did the people who busted their asses, never gave up, skipped meals, skipped out on having fun, worked nights, and worked weekends who only ended up as assistant to the manager.

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            • In the gig economy, there’s a direct correlation between how hard you work and how much you earn (even if overall the amount isn’t very high). “Work hard!” translates into making a few more deliveries than you otherwise would, which means more money in your pocket. In the situation Chip describes, it’s probably not moral exhortation at all — the other drivers aren’t her managers and don’t benefit from her working harder. It’s just advice. If this conversation happened among, say, WalMart employees, it would be a different story.

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          • Mulling about why austerity economics took off during the Great Recession, Paul Krugman noted that “for the wages of sin are death” and “those who do not work, do not eat” are much more morally compelling messages to humans than “shit happens.” The Just World theory is an important psychological component to many humans. The idea that somebody can work as hard as possible and do everything they are supposed to but still fail completely is too much for many to bear. It suggests a flaw in the system. It distresses the successful. We see this in all aspects of life from dating to work.

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            • I used to wonder at the people in medieval life who just nodded and accepted that Lord Hooptyhoo “owned” the land they rented, and was deserving of its wealth and his privilege.

              But I do get it, how people can just start to see the world as it is arranged as the naturally occurring state of things, which have always been and will always be.
              When someone stands up and says “Why should Lord Hooptyhoo sit on his ass all day while we bust ours to plant and till and weed, then when the harvest comes in, he rides in to take the lions share? Why shouldn’t this land belong to us what work it?”

              I can see how this thought, that the world is unjust and the pillars that hold it up are arbitrary and malleable, can be a very disturbing idea.

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              • When someone stands up and says “Why should Lord Hooptyhoo sit on his ass all day while we bust ours to plant and till and weed, then when the harvest comes in, he rides in to take the lions share? Why shouldn’t this land belong to us what work it?”

                Because people who said that out loud, where Lord Hooptyhoo and his men at arms could hear it, tended to die from not-mysterious causes.

                I am reminded of the myth about how the English language lost gender (masculine, feminine, neuter variations on articles). It started in the part of England known as the Danelaw, where second sons of viking lords who had been provided with a boat and weapons and sent away to find their own place — dad’s was going to the first son — sailed to England, up a river, stormed ashore and killed the local lord and declared themselves the new owner. Old Norse had gender; Old English too, but they didn’t match up. The new lords realized they would have to learn English, but “I’ll be damned if I’ll memorize another set of gender rules.” So the new lords said “the”. And the peasants, who understood that the new lord got that position by cutting people’s heads off, also said “the”. As it was a useful simplification, it spread fairly quickly.

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              • There were peasant rebellions during the Middle Ages and these occurred with a fair amount of frequency. You could only push people so far before they won’t take it anymore. People seem generally prone to accept a system as long as they and their family are doing all right under it. When they aren’t doing all right or the side with more status decides to take more than they are usually accustomed to than you get rebellions.

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                • Right, I saw a documentary on this, but it seemed like the peasants just fell to quarreling over the difference between anarcho-syndicalism and representational socialism and the efficacy of watery tarts handing out swords.

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          • Why are we talking about the corporate form when the real problem is the abuse of the independent contractor status in order to push people that are de facto employees into horrifically one-sided arrangements?

            I understand the independent contractor status having been one prior to this job but at least there was more upside in the job and the company, while it couldn’t force me to keep office hours, had some supervisory authority since my actions could have placed legal liability on the firm had I broke the law.

            This “Uberization” of package delivery is a clusterf-sh that isn’t going to end well.

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            • I don’t understand why these two things are independent of each other.

              The idea that corporations owe nothing to anyone but themselves is the foundation that gives rise to the idea that they can unilaterally set terms of employment.

              Again, if we had a widespread societal consensus that corporations exist at our discretion and that we can set terms of our own, then we could greatly narrow the scope of independent contracting.

              One of the reasons I harp on these vague terms like “societal consensus” is that this sets the agenda and understanding of legislation and court decisions both.
              Judges and legislators swim in the same cultural and political milieu as the rest of us, and reflect the same broad understanding.

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              • I don’t understand why these two things are independent of each other.

                They’re independent insofar as if you want to address one issue independently of the other, you can and pragmatically speaking, should. What you’re trying to do is pull everything back to its most abstract/systemic level to make the case of restructuring the entire system without having to make a case for it, or at least one I’d pay attention to.

                The idea that corporations owe nothing to anyone but themselves is the foundation that gives rise to the idea that they can unilaterally set terms of employment.

                Yes, in certain labor markets, but not in others. Did you have any say in the terms of your own employment? I negotiated mine to a certain degree.

                The lower wage markets in the service sector? That’s a different animal.

                One of the reasons I harp on these vague terms like “societal consensus” is that this sets the agenda and understanding of legislation and court decisions both.

                One the reasons I don’t like you harping on that is that when you discuss them at the level which you do, it’s as if you’re refusing to look at current consensus. After all, if what you say is correct, then we have these things in place already, and it’s the consensus you need to change.

                Again, you have work you need to do.

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      • I am not even sure it is the proper job of a union in the American context to advocate for lower costs. Maybe if we had German style worker’s councils where labor gets a say in the direction of the company is going but we do not.

        The job of a union is to advocate for their members and the workers. It is not to be a secondary supporter of management and the board of directors.

        I agree that’s the primary job of the union. And to be fair, the public-sector unions are doing that. However, if the costs keep going up so that the enterprise fails or cannot (or finds it easy through such mechanisms like the private equity firms you mention not to) honor its commitments, then everybody loses–at least in the long term.

        We need a bit of fight back in our workers.

        Look at what happened to Toys R’Us from the private equity guy. Private equity squeezed it for all the money it was worth and then left thousands of workers without a pension or let-go pay. The workers were left high and dry.

        Why do American workers seemingly just take these face smashes without any push back?

        Hmmm…..now I’m in the awkward position of defending workers and even unions against what I take to be an unfair attack. People tend to do the best they can in facing the circumstances with which they’re presented. (I believe that’s true of public-sector unions as well, even though I disagree with them.) There’s nothing particularly wrong with them qua workers. (I interpret “We need a bit of fight back in our workers.” and “Why do American workers seemingly just take these face smashes without any push back?” as a suggestion there is something wrong with them.)

        I’m not sure what type of push back workers could offer in, say, the Toys R Us case you mention. (I know pretty much only what you told me about it, so I’m no expert.) Should they sabotage the store? Should they sue? Should they lobby their congressperson to create a law retroactively somehow punishing the persons responsible?

        I suppose that’s not precisely what you meant. But I would like to know what you believe the workers could have done or should have done to push back against these “face smashes.” I mean, I realize they supposedly should vote for politicians and policies that will have their interests at heart. But what can, say, the software engineers or Toys R Us workers do in the short term when they’re faced with those deeds?

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    • Your example gives me something to think about, especially when it comes to the categorical way in which Slade (and I) made the point.

      Maybe instead of there’s “no one on the other side with a vested interest in keeping costs down,” I could (and would) say that “the people on the other side have sometimes strong incentives to forgo keeping costs down.” I realize that “sometimes strong” is a hedge here on my part.

      I will say your experience kind of matches that of my coworkers, who used the fact they hadn’t had a raise in about 5 years as a reason to unionize in the first place. I disagreed with them, in part because those 5 years were the 5 years following our most recent major recession. But the fact that the employer didn’t offer a raise does indeed suggest they have an interest in keeping costs down.

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  2. This is one of those areas with few good or easy solutions. Right to work laws make things real difficult for unions or impossible because they allow a lot of free riders to exist. Unions are the most effective when they are founded through dues collecting from everybody and in a closed shop environment. If your a free marketer and believe that everything turns out best in an organic economy left to itself getting rid of unions is fine or necessary. If your slightly or very suspicious of the business class than its not really fine. At the same time, forcing every worker to go along with unions and contribute to political causes that they might disagree with seems wrong. The idea that all workers are in agreement rests on solidarity that doesn’t exist in reality.

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    • I believe David noted that Janus cheerfully fixes the free rider problem as well, assuming SCOTUS is even marginally consistent. Under their logic, the laws requiring unions to negotiate for everyone (even non-union members) are not Constitutional either.

      Which means union members, once the lawsuits are over, are about to be better paid than non-members. Which has it’s own real big set of problems, of course.

      And given the biggest public sector unions — police and firefighters, as well as the increasing mobilization of teachers who seem to be in a “Screw laws forbidding strikes, we’re done taking this crap”, anyone trying to replace their staff with non-union members is SOL.

      This seems a two-edged sword assuming — of course — that SCOTUS doesn’t find some nifty reason that two identical things are not identical.

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      • Which means union members, once the lawsuits are over, are about to be better paid than non-members.

        That’s assuming that employers aren’t machiavellian in their treatment of workers, which is rather optimistic.

        My previous employer (the provincial government) did what I interpreted to be an attempt to prisoners-dilemma its workers, by giving non-union employees every raise and benefit increase they gave the union members, but sweetening the deal by making it retroactive for an extra 4-6 months.

        I figure it could easily have been a successful tactic in a jurisdiction where individual workers could opt out of the union in an otherwise union shop – many would opt to save the union dues and get the free bonuses, leading to a progressively less powerful union with less leverage and less well paid negotiators, and in turn to lower negotiated benefits – and still the individually optimal approach is for each employee to defect.

        The union didn’t negotiate for us non-union folks on purpose – that was an incentive set up by the employer as a kind of F-U to the union.

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        • My previous employer (the provincial government) did what I interpreted to be an attempt to prisoners-dilemma its workers, by giving non-union employees every raise and benefit increase they gave the union members, but sweetening the deal by making it retroactive for an extra 4-6 months.

          LOL.

          That seems like a really good time for the union to say ‘Hey, everyone quit the union for next month, then come back.’

          Remember, companies have no way to bar employees from joining a union in the future. In fact, as the Supreme Court just moronically declared collective bargaining a constitutional right, such a thing is probably not even possible via altering labor laws.

          I figure it could easily have been a successful tactic in a jurisdiction where individual workers could opt out of the union in an otherwise union shop – many would opt to save the union dues and get the free bonuses, leading to a progressively less powerful union with less leverage and less well paid negotiators, and in turn to lower negotiated benefits – and still the individually optimal approach is for each employee to defect.

          A successful tactic until the next union contract negotiation, sure. If barring that behavior is not literally the first line in the contract, the union leadership needs to be completely replaced.

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      • Which means union members, once the lawsuits are over, are about to be better paid than non-members. Which has it’s own real big set of problems, of course.

        Or, if a corporation is serious about busting it’s union, non-members are going to be loving life for a while.

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      • Under their logic, the laws requiring unions to negotiate for everyone (even non-union members) are not Constitutional either.

        That’s not how I read the decision. I read Alito to be saying that the “negotiate for everyone” requirement is not the only way to do union representation. I didn’t read him to be saying that such laws aren’t constitutional. However, when I spent all of 30 seconds combing the decision, I failed to find the language where he said that.

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        • That’s not how I read the decision.

          It doesn’t matter if it’s in the decision…their logic demands it.

          They said that any collective bargaining is, constitutionally, a form of speech, meaning that people cannot be forced to pay for speech they disagree with.

          As collective bargaining is now a form of speech, this now means that the government cannot force an organization to accept payment to do it for someone…and certainly can’t be forced to do it for free!

          Ergo, the law can no longer demand that unions represent all workers.

          Unions will, immediately, certainly refuse to represent non-union workers, and really should start negotiating _against_ them. Demanding they have _pay cuts_.

          Hell, unions can now technically refuse to represent specific dues-paying union members if they want. Although obviously such members would probably stop paying dues.

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          • You (and Morat) may very well be right about that point. But unions gain something from representing everyone in the bargaining unit. That exclusive representation is not wholly an imposition on the unions. It’s something the unions (would probably) seek out and from which they benefit in at least some ways. Maybe those benefits wouldn’t be enough to convince unions to represent everyone if it weren’t legally required.

            Hell, unions can now technically refuse to represent specific dues-paying union members if they want. Although obviously such members would probably stop paying dues.

            I wasn’t aware of that. Do you have more information?

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            • That exclusive representation is not wholly an imposition on the unions. It’s something the unions (would probably) seek out and from which they benefit in at least some ways.

              There is a sorta low-level misunderstanding of almost every aspect of union regulation in this country, and people should be aware of a simple fact: Basically every regulation placed on unions, regardless of how ‘helpful’ it looks, is something that was forced on unions to control them, and not something they would do naturally.

              That’s sorta obvious when I state it that way (We hardly make laws requiring people not do things that none of them want to do.), but it’s amazing the sort of implicit assumption that people have that card checks, or one union per company, or all sorts of things, are there to help unions. Some laws don’t restrict unions _as much_ as other laws, but the reason we regulate them is to stop them from doing things.

              In a completely natural word, labor unions consist of angry mobs of employees striking at will, not bound by contracts or other unions or having to go through any sort of ‘official’ process to represent workers.

              If a company had ten skilled people who know how to run a machine, those ten people would magically wave their hands, call themselves a union, and say ‘You will agree to pay us more by tomorrow, or we walk off the job and your factory is shut down until you can find and train workers with our skills’.

              I wasn’t aware of that. Do you have more information?

              What do you mean, more information?

              It’s rather required by the logic of the court’s decision. If collective bargaining is a first amendment right, unions have a right to do it however they want within the law. The courts can’t say to a union ‘You must collectively bargain for everyone who joined your organization.’, any more than they can say to a church ‘You must promote _every_ God that anyone who joined your organization wants you to promote’.

              In fact, a lot of restrictions on collective bargaining are about to go up in smoke. It’s going to be a lot harder to justify a lot of the restrictions that labor law puts on them, and even if some of the things they want to restrict _can_ be done constitutionally, they really…weren’t, originally. So the laws will have to be changed.

              For example, while it is probably still possible for union contracts (At least not with governments) to forbid certain types of strikes, and sue the union for such strikes, there is a lot of Federal and state law forbidding strikes in certain circumstances. Including criminal punishments…the president of the Transport Workers Union Local 100, Roger Toussaint, was sentenced to 10 days in jail in 2005 for calling for an illegal strike.

              That is all, as soon as it gets in front of a court, dead letter. It’s now the equivilent of a law forbidding people from walking around reading outloud from the Bible. It’s blatantly unconstitional.

              I continue to be astonished at just how utterly moronic this ‘victory over unions’ was. The conservative idiots never once sat down and say ‘Hey, wait, our argument is that people can’t be compelled to participate in collective bargaining because collective bargaining is speech, and thus the government is making someone participate in speech. That…’speech’ thing? I’m kinda wondering about that? Did…uh…did anyone do the math on what making collective bargaining a protected constitutional right would…do? Like, uh, any possible side effects?’

              So feel free to count me in the ‘constituency for Janus’. ;)

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              • When I asked for “more information” it was specifically about your claim that “unions can now technically refuse to represent specific dues-paying union members if they want.” I had thought you meant that under the law, unions could already refuse representation and do so at least sometimes. However given your response, I suppose you meant only to reinforce your point about the logic of the decision?

                Basically every regulation placed on unions, regardless of how ‘helpful’ it looks, is something that was forced on unions to control them, and not something they would do naturally.

                There’s a lot of truth to that, but I think it’s only partially true. Regulations like card check can enable some people to unionize who otherwise wouldn’t or would find it more difficult. The Wagner Act helped enable more widespread unionization than might have occurred without it

                Yet I also agree that those laws which help unions also control them. Not only in the case of highly skilled workers that you mention, but perhaps also in the case of lesser skilled worker. (As you may know, one criticism of the Wagner Act is that it corralled and co-opted a labor movement that could have or would have been more militant.)

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                • I had thought you meant that under the law, unions could already refuse representation and do so at least sometimes. However given your response, I suppose you meant only to reinforce your point about the logic of the decision?

                  Well, as far as I know, unions haven’t, at any point, refused to represent someone.

                  But, yes, now, _under the law_, or at least under the constitution, unions can now do that. Collective bargaining is now an exercise of freedom of speech. (Political speech, apparently, if they’re a public union negotiating with a government, which is what this case was about. But that means it’s just normal speech when it’s not a public union.)

                  Now, laws restricting freedoms of speech aren’t utterly impossible, so, for example, a law forbidding unions from calling for a strike if that strike endangers lives could work. Or national security grounds. Like I said, some of those laws might be possible, but they’ll have be very narrowly tailored, and none of the current laws are.

                  But forcing a union to argue on someone’s behalf is both ‘compelled speech’ and ‘content-based speech’, which is basically the highest constitutional bar imaginable, and such laws are, to quote the Supreme Court, ‘presumptively invalid’.

                  So, yeah, it’s settled law: Unions cannot be compelled to represent people, aka, cannot be compelled to make speech with specific content, like ‘This specific person should have the same wages as these other people’. That’s like if the government passed a law demanding that everyone paint their house with pro-Trump messages. We don’t…really need to argue whether that’s constitutional. It’s settled law.

                  And, while there is some hypothetical bar that a government could argue in court to get past ‘presumptively invalid’, to reach that bar, governments who wanted to impose such regulations would have to argue that there is an extremely strong government interest in having unions negotiate higher wages for everyone. The government would have to claim it is so vitally important that unions are used to increase wages that it overrides their constitutional right to not be forced into compelled speech, and there’s no other way to increase wages.

                  Which not only is unlikely, but is hilariously counterproductive to the sorts of precedents the people behind Janus wanted.

                  Now, of course, a law requiring unions to represent people they have actually accepted dues from would be an entirely reasonable law based in anti-fraud laws. If you pay a union with the understanding they will argue on your behalf, you have a contract with them do so. But that just means that unions have a right to not accept dues.

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                    • Well no, a Court hasn’t ruled on it. But given the Janus ruling, there’s really no other way to rule without directly contradicting Janus.

                      And it’s possible SCOTUS will choose to be willfully incoherent on this point, but not terribly likely.

                      The key takeaway is that the logic behind Janus, if applied to the other side of the public union situation, has a lot of other implications beyond the immediate, and those implications are very, very big — and right now, only the people in the weeds have noticed.

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                        • Why not? Law cannot just be settled whenever a judge makes a pronouncement. Or else it would always be silly to say that any given judicial decision was decided wrongly. And that seems silly. It seems to be true of at least some cases that the law is settled a) in advance of the decision for that case and b) in the absence of any specific statutory language. To deny this is to be thoroughly anti-realist about common-law systems. i.e. it is to say that common law systems are not really legal systems.

                          Once you acknowledge that courts cannot plausibly decide otherwise (re: the impermissibility of requiring unions to represent non-members) without being obviously self contradictory, I’m not sure how you can deny that it is settled law even if the case in question at this point in time is purely hypothetical.

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                          • You’re right that I shouldn’t have said the court must decide something in order for it to be settled.

                            However, I don’t acknowledge (at least not yet) that courts cannot plausibly decide otherwise. I’m still on the fence because I haven’t wrapped myself around the logic of the argument.*

                            Also, to me, deciding that laws can’t constitutionally require unions to represent all members of their bargaining unit strikes me as so novel, that a court would have to decide on it (or the laws would have to be repealed) before the issue is anything like “settled.”

                            There’s also the meat world issue by which I suspect the courts as currently–and likely for the next few decades–constituted won’t decide that way, even if the logic compels it.

                            But my main sticking point is that I’m just not convinced yet about what’s logically compelled and am not sure I understand all the steps in the argument that gets us to that conclusion.

                            *By the way, I owe an apology to . My answer to his last comment was borderline rude. I realize he (and DavidTC) was just trying to advance the argument that Janus logically compels the decision.

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                            • *By the way, I owe an apology to . My answer to his last comment was borderline rude

                              No worries! At the best of times, at least online, I come off as obnoxious as hell.

                              It’d be pretty hypocritical for me, of all people, to be thin-skinned about a bit of rhetoric. :)

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                            • I’d like to clarify my inability (so far) to understand the logic behind the argument that under the precedent set by Janus, unions can’t be compelled to represent every person in their bargaining unit (or more precisely, can’t be compelled to represent non-members who are in the bargaining unit).

                              First, it’s a new argument for me. Before this post, I don’t believe I’ve encountered it. (I think DavidTC did advance the idea elsewhere–maybe the thread to Em’s post?–but I didn’t grasp what he was saying.)

                              Second, I’m a bit confused about the extent to which unions are already required to represent non-members. I understand that the way unionization drives usually work in the US NLRA system is for the state or some proxy thereof (like the NLRB or state-level body for public-sector unions) to define the bargaining unit. And in that context, I understand unions, if they win recognition, are required to represent that entire unit regardless of union membership status. But at the same time, I find it difficult to link this de facto requirement to unconstitutionally compelled speech. (And to be clear, while I believe compulsory union dues are compelled speech, I’m no longer certain they should be constitutionally forbidden.). [ETA: I’m not sure how much this is a requirement. It’s a requirement if a union wants to organize with the blessings and enforcement mechanisms (such as they are) offered by the NLRB, etc., but it might still be possible for unions to organize in other ways and stay within what the law allows. Or not….I’m not a lawyer and don’t know.]

                              Third, it seems there are instances where unions represent non-members in disciplinary hearings only if the non-dues-payers pay a fee to the unions. Alito mentions such arrangements (which I had never heard of) in his decision. Granted, those non-dues-payers still are “represented” by the unions in other ways, through salary and seniority agreements.

                              Fourth, it strikes me that unions generally want to represent the entire bargaining unit. They’d prefer that all members pay dues, too, but they also want to exercise some control over the work done by the entire bargaining unit. I do realize of course that even if unions, or some unions, would prefer to represent the entire bargaining unit, that doesn’t necessarily mean requiring them to do so are constitutional.

                              I do realize I’m operating from an American-centric, post-New Deal way of looking at unionization. I know there are other ways to go about unions, although I confess I have only a passing familiarity with most of them. I have studied pre-New Deal unions in some depth, but those don’t seem to fit the post-New Deal world. (And in support of a point DavidTC made above, the NLRA and other “pro-union” reforms were probably largely functioned to control unions, even though they may have also empowered them, too.)

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                              • State laws authorizing public-sector unions, require the union to represent the bargaining unit. In Michigan which became right-to-work a few years ago, when the teacher’s union representative was asked at a legislative hearing whether they wanted to be relieved of having to represent school employees who wanted out, he said, “No.”

                                I don’t understand the argument either. One of the cases relied upon in Janus was Rutan v. Republican Party of Illinois, which held that the government cannot use membership in a political party in employment decisions. The Janus court describes itself as harmonizing union membership with political party membership. If the gist here is to utilize collective bargaining to impose fees or different tiers based upon union membership, the government is going to get sued for civil rights violations, just as if the union was a political party.

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                                • The Janus court describes itself as harmonizing union membership with political party membership. If the gist here is to utilize collective bargaining to impose fees or different tiers based upon union membership, the government is going to get sued for civil rights violations, just as if the union was a political party.

                                  A few immediate objections to that:

                                  1) Why do unions care if the government gets sued for civil rights violations? (j/k)

                                  2) Just because the courts made an analogy with political parties doesn’t mean that Rutan v. Republican Party of Illinois now literally applies to unions. Unions are not actually political parties. They are organizations that sometimes generate political speech, and the rationale behind Janus was allowing people to opt-out of paying for such speech, not anything to do with actual union membership…Janus was not technically ‘in’ the union anyway.

                                  Incidentally, hilariously, this would be a direction the right would not want to argue. The conservative side of the court was very much against the idea of government employees having first amendment rights with regard to their employment in Rutan.

                                  3) The unions can just require _themselves_ get paid in their contracts, and distribute the money to their members, thus getting around that little problem. Unions are, currently, often forbidden from trying to bargain for that…but all collective bargaining restrictions just utterly fell apart.

                                  4) You, like most people, seem to be thinking of this in the context of public unions. Whereas I am thinking of it in the context of all unions.

                                  With collective bargaining being speech, almost all government regulations on it are dead letter, both for public and private sector.

                                  I.e., even if the governments find themselves unable to sign a union contract saying that they will pay union members more, and thus public unions can’t really demand they do that…private unions sure as hell can now.

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                              • Second, I’m a bit confused about the extent to which unions are already required to represent non-members. I understand that the way unionization drives usually work in the US NLRA system is for the state or some proxy thereof (like the NLRB or state-level body for public-sector unions) to define the bargaining unit. And in that context, I understand unions, if they win recognition, are required to represent that entire unit regardless of union membership status.

                                That’s how it used to work, yeah. But that part of the law is now broken also. It’s like the law demanding that there only be one non-profit organization advancing the cause of the homeless, and that the homeless have to get together and vote to form one, and all the homeless have to agree it represents them. It’s nonsensical and clearly unconstitutional.

                                But at the same time, I find it difficult to link this de facto requirement to unconstitutionally compelled speech.

                                I don’t understand why? If collective bargaining is speech (Which it is now.), then compelled collective bargaining is…compelled speech.

                                And if collective bargaining is speech (Which it is now.), then defining who must be bargained for is content-based restrictions on speech.

                                Both of those have really really high bars, constitutionally. Put together…wow.

                                Think of it in the context of literally any other advocacy. Like a union is a human being, for example. Or a PR firm. And the government says ‘You must let these people pay you money and in turn promote their goals.’

                                I mean, we as a country are currently having an argument over whether or not _baking a cake_ for someone is constitutionally protected, and the question is whether or not cake-baking is speech. But, everyone agrees, if it _is_ speech…people can’t be forced to do that.

                                Well, what unions do is now speech. And I don’t mean ‘unions lobbying’, that’s been speech for 40 years. I mean the actual collective bargaining part, negotiation for different wages, is now, literally, defined as speech. Thanks to Janus.

                                Courts have actually, for four decades, tried desperately to refrain to coming to the conclusion, to _keep union restrictions in place_.

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              • If a company had ten skilled people who know how to run a machine, those ten people would magically wave their hands, call themselves a union, and say ‘You will agree to pay us more by tomorrow, or we walk off the job and your factory is shut down until you can find and train workers with our skills’.

                I watched that happen a few decades ago. Two guys figured they weren’t replaceable, were standing on a critical part of the process, and they could also hold hostage multiple weeks (months?) work they’d already done by simply not submitting it.

                Management’s solution was to fire them. If stuff got shut down then it got shut down. If the project was late then it was late.

                The backup solution is probably to wait a bit and then fire them. If you’re going to demo that you’re untrustworthy, unethical, and willing to take the company hostage then it’s drastically in the company’s best interests to make sure you’re not there.

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                • Oh, I’m not saying it’s a good idea. It depends on how actually irreplaceable someone is, and how many people they can get to go along with it.

                  The thing is, two people…that’s not going to work. Ten people…might. A large enough fraction of the company, it will.

                  Union law tries, desperately, to make sure that can only happen with the _majority_ of _all_ the employees, which generally ‘can’ work. And union law puts the _entire_ negotiation process in the hands of a single entity, which means that different parts of the employees can’t actually compete against each other.

                  …until now. Now, each company is sorta going to have an entire market economy going on _inside it_, where workers can compete or cooperate together or whatever. And workers will quickly realize which ones are actually irreplaceable, and which ones aren’t. A lot of people will be…very wrong about their status. But many people will be right.

                  I can even see, in a company _with_ a union, the 25% or so people who actually do 90% of the work leaving the union, going on strike, and demanding three times the wages.

                  Because I’m pretty strongly pro-worker, people tend to assume that I’m ‘in favor’ of every possible thing that gives them power, or judge everything through that lens, like it’s some sort of zero-sum game between the management and the employees.

                  But just letting any subsection of workers form a union is…pretty surreal and is going to tear some companies apart. I’m _describing_ what will happen, not praising it.

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  3. , I’m curious if your union agency fees included lobbying costs as they did for Janus? (I know you may not be able to respond until later) Labor units differ greatly in their practices, but I think the big picture here is that Janus’ union was overreaching and by doing so gave the Court an opportunity.

    The Governor is certainly anti-AFSCME, and appears to have no intention to negotiate a new CBO with it while he remains in office. But all these lawsuits take is one person adversely impacted and a legal advocacy group willing to take the case.

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    • To my knowledge, my own agency fees did not. I did notice when I read the decision that some of the fees were dedicated to lobbying. A less activist court might have seized on that point to suggest that this particular agency fee ought to be invalidated (or modified) while leaving agency fees intact.

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      • Thanks for your response. The lobbying aspect was certainly key to the decision to overrule the previous SCOTUS rule that assumed that political and non-political union expenditures could effectively be bifurcated btw/ voluntary and mandatory fees. Union lobbying costs were made mandatory, the financial disclosures were not informative or transparent, and the Courts were either incapable or unwilling to enforce the line. My suspicion still remains that most unions were not so greedy, but I have noway to know.

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  4. “There’s nobody on the other side with any interest in keeping costs low” is a good argument.

    “This will bankrupt the state” is a bad argument. It will raise taxes, and probably result in some other programs being cut. Which is normal politics, prioritizing one thing over another.

    Why not try and reform all the pension-padding games people play toward the end of their careers instead?

    And by the way, in this Age of the Internet, people are gonna find a way to organize and fundraise. If it isn’t the old way, it will be a new way.

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    • “This will bankrupt the state” is a bad argument. It will raise taxes, and probably result in some other programs being cut. Which is normal politics, prioritizing one thing over another.

      Maybe “this will bankrupt the state” is indeed a bad argument. I guess it depends on what one means. But the you mention can be bad for our state or the institution I work for. And in addition to raising taxes a cutting (or lowering funding for) some programs, I’ll add, “make current services more expensive to those who patronize them” At that point, it becomes a case of balancing whose programs will be cut and what incentives/disincentives the new taxes will create when it comes to future investment in the state.

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  5. One problem I’ve had with a huge number of public sector jobs is the whole issue of how they transform into “jobs that need doing” into “the point is the employment itself”.

    Like, what’s the point of teaching jobs? Well, we want our children to learn to get a good college prep education. This requires teachers. We want good teachers teaching our children and making them prepared for college.

    So what happens if there is a bad teacher? (And let’s define “bad” as “not able to teach our children and prepare them for college” rather than some other definition.)

    Should this teacher be fired?

    Well, if the point of teaching jobs is making sure that our children get a good college prep education… well, why wouldn’t you fire someone incapable of doing their job?

    The problem with teacher unions is that they seem to be set up in such a way that teachers who are bad do not lose their jobs. As if the point of the teaching job is to provide employment rather than to make sure that kids get prepared for college.

    And similar happens for police. If you want a list of fun egregious behaviors from policepeople that went on to be defended by the police union, here’s a Reason article talking about that. (And, interestingly enough, there’s even a Janus tie-in!)

    I’m sure that there are a ton of examples that aren’t limited to teachers or policepeople. IRS agents. TSA agents. DMV agents. What’s the point of each of these?

    My problem with the unions is that they act as if the point is to provide employment.

    And it ain’t.

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    • My problem with the unions is that they act as if the point is to provide employment.

      Well, yes, because to their members, the point is to provide employment.

      I mean that’s mostly why people do jobs—because they’re paid to do them. Even those of us lucky enough to have jobs we enjoy and feel to have meaning beyond just a paycheck wouldn’t do their job without the paycheck.

      And the broader notion that the economy and society as a whole are there to provide employment is actually extraordinarily common. Maybe perverse, but definitely pervasive.

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      • Well, yes, because to their members, the point is to provide employment.

        No, not really. People could get those jobs with or without membershio in or even the existence of a union, but presumably with lower compensation and job protections than a union would negotiate on their behalf.

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        • Here’s part of the tension: I am 100% down with the union being an advocate for their workers, fighting for more compensation and more time off and more sick days and what have you. These are all positive good things.

          But google “police union defends officer” and see a very different list of things than the union arguing for more compensation, more time off, and more sick days.

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          • I think police unions tend to be particularly malignant, but in general (and even with police unions) they have plenty of reason to defend members from being fired and take their sides in disputes because management doesn’t always fire people for good reasons.

            And politics and political control over management can spur even more bad reasons for firing.

            But then you sometimes have a union out there successfully defending the indefensible.

            I don’t have a solution, but I admire the problem.

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          • Police unions have very little to do with cops not being punished for misbehavior. Yes, they run around defending the indefensible, but they don’t have magic wands that cause cops to not be prosecuted…that’s a combination of really stupid laws, idiotic court precedent, and just utter failure to even try to reform any part of the thing.

            Blaming the police union that police always get off is like blaming corporate lawyers for corporations never actually having to pay serious fines for any behavior. That’s literally the lawyer’s, and the police union’s, job. They are paid, by the people who are getting away scott free. Paid to defend those people.

            It’s the rest of the system that utterly failed, often by not even trying.

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            • My point, this time, isn’t that police don’t get punished for misbehavior and that’s due to police unions.

              My point, this time, is that police unions defend the indefensible rather than arguing that the mission of the police would be better served if the police had more vacation time, more sick time, and more money in their paychecks.

              Instead of arguing something vaguely related to the point of the police, whatever it would be, it argues as if the point of the police is to provide middle class kinda jobs to middle class kinda people who are therefore entitled to never lose their jobs.

              And that’s one thing when we’re talking about people who drive for Hostess.

              It’s quite another when we’re talking about The Thin Blue Line.

              But if I wanted to bust up police unions, I know that I’d have to get public opinion to sour on police unions first.

              Police unions are doing a bang-up job of that sort of thing on their own.

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              • Oh, also, I very much do not like that.

                I see the point of the police as being some variant of protecting, serving, etc. (I also think that they have a Duty To Protect, but that’s another argument entirely.)

                The point of police unions has nothing to do with protecting, serving, what have you. It’s not even really about more money and more time off.

                The point seems to be defending the indefensible.

                The arguments for the existence of police unions in the first place all seem to be hypothetical reasons that unions are good in theory. If you want to see what police unions do in practice, just google “police unions defend officer”. It’ll autocomplete for you.

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      • The point of a Union is to negotiate on behalf of the worker, and to provide some degree of protection to a worker from the acrimonious behavior of management.

        Often enough, that protection is extended to employees who are not victims of bad managers, but just really bad employees.

        A smart Union would not allow itself to get painted into that corner. They’d have some kind of language allowing for a cutout, so if conditions X, Y, & Z are met, the member loses the protection of the Union.

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        • Yeah. But between unions not necessarily being smart, and having an adversarial relationship with managers who are also not necessarily being smart, you get this mess.

          And union leadership does have some incentives to keep bad employees on even if they know they’re bad.

          (My overall inclination is pretty pro-union, but they’re human organizations subject to all the pathologies that come with that.)

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          • I incline to pro-Union as well, but I don’t accept them as an unalloyed good. IMHO, they need to work, every day, to justify their existence to their membership, and arguments that constantly beg the question are not cutting it.

            They need to stop drinking the Kool-Aid.

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    • Perhaps this goes back to Lee’s point above about there being few easy answers. I believe that public-sector unions–like all unions, if they do their job right–end up protecting some bad employees. But that’s kind of the price we’re paying whenever we agree to due process protections for workers.

      And these protections don’t exist only in union shops. In the public sector, some jobs have civil service protections. In the private sector, some jobs in Idaho are covered by “for cause” statute. And elsewhere, corporations sometimes adopt policies and practices that result in a kind of due process, even though it’s not legislatively mandated.

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  6. “Commit to defeating [the governor of Sangamon] on November 6…..From [bad things the governor has done]…to [his or her] campaign against workers’ rights, [the governor] has failed [Sangamon]. [His or her] priorities are clear.”

    Part of the issue here is that we reformed the Bureaucracy way back in 1873 in efforts to improve Govt service, end the spoils system, and de-politicize the growing “field executors” of our laws (among other abuses).

    And what we’re seeing is increasing (re-)politicization of the Bureaucracy which is different (and far worse) than simple workplace solidarity. There is, I think, a non-Labor and purely political counter-argument to why we specifically abstracted the Civil Service as a constituency. Saying that they are a constituency is not something we should recognize as a development, but something of a failure of the Civil Service acts. The remedy isn’t unions, and the problem we’re solving for isn’t a market issue.

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    • First, I agree with your point about civil service. James Q. Wilson made a similar point in his book on (government) bureaucracy.

      Second, I apologize if I’m misinterpreting what you said, but when I said there’s a “constituency” for Janus, what I meant was that there are people who have good faith qualms about public-sector unions and that Janus would not have been possible without a widespread (though probably not a majority) skepticism toward public-sector unions. Therefore, I wasn’t thinking of public-sector workers as the constituency in question. However, they definitely are a constituency.

      Of course, it’s possible I misread your comment.

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      • Re: constituency… that’s on me. Of course you are referring to Janus and potential Public Sector supporters. I was lazy and didn’t convert my usage of the term… that said, consider this a lazy conversion as my usage stands, but it is indeed different than yours.

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        • Thanks for the clarification, but to be clear, I didn’t mean it as a criticism, just expressing a concern I wasn’t addressing exactly the point you were making.

          One thing I’d like to comment on is your comment about the Pendleton Act and later moves toward civil service reform. You mention some of the goals: “to improve Govt service, end the spoils system, and de-politicize the growing ‘field executors’ of our laws (among other abuses).” You’ll probably agree that those goals can contradict each other. Curbing patronage enables people to do their jobs with less fear of reprisal and opens access to jobs beyond those who have certain connections–but the civil service protections necessary to curb patronage can make it harder to fire under-performing people.*
          To your parting sentences,

          Saying that they are a constituency [embedded interest a better word?] is not something we should recognize as a development, but something of a failure of the Civil Service acts. The remedy isn’t unions, and the problem we’re solving for isn’t a market issue.

          I’m not sure it’s a “failure” of civil service rules as it is part of the price we have to pay in order to have them. The failure is if the price/cost is higher than it need be. But the cost will be there. I certainly agree with the second sentence, although I reserve the right to change my mind later :)

          *To be clear, I think the “hard to fire people” aspect of civil service is easy to exaggerate and in any case is a question of margins. I believe (and have lot of anecdata to substantiate that belief) that most civil service and public-sector employees are dedicated to their jobs.

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  7. As I’ve said before, Unions are often quite bad at justifying their role because the people at the top are true believers. They believe that Unions are an unalloyed good and anyone who doesn’t agree is doing so for nefarious reasons. The creates a nasty blind spot and results in really bad question begging.

    Unions are good, but not simply because they exist and claim to do good.

    See also: Police, Government, Religions, etc.

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  8. The discussions in this thread, which I’m enjoying, are focused mostly on the pro’s and con’s of public-sector unions, with some branching into discussions about unions in general and even corporations. Those are entirely worthy of discussion and are certainly on-topic, so please continue if you wish.

    However, I’d be curious also to have your thoughts on one of the other points I bring up in the OP, although perhaps not as clearly as I could have. I think there’s a smarter way for public-sector unions to self-advocate, and if they continue along the lines that my parent union does, they might solidify an opposition that otherwise would have less desire to join the anti-public-sector union trend.

    I can certainly think of some criticisms to my approach. Generally speaking, it brings up the ongoing debate about whether people should “rally their base” or “win converts.” I don’t think it need always be an either/or proposition. Sometimes one can do both, and sometimes one must make a choice.

    More specifically, to take the example of pensions, public-sector unions in Sangamon for the most part have the law and the state constitution on their side when it comes to fighting against Sangamon’s attempts to lower pension benefits. In that case, a very strident, uncompromising tone serves the interests of the unions’ members, or at least those current members who have claim to pension promises. It’s not even clear (to me) that they could compromise if they were willing–Sangamon’s constitution pretty much protects all existing promises and the state supreme court has so ruled.

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    • I don’t think it need always be an either/or proposition.

      This goes back to my first point, stop drinking the Kool-Aid. You can rally the base and, if not exactly win converts, at least avoid creating angry opposition, by just not assuming that anyone opposed to your efforts is acting in bad faith or is some kind of idiot. Sure, othering is an easy way to rally the base, but it also cements the opposition.

      But, ya know, demagoguery sure does rally the crowds and feels oh so good.

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    • Well, I found the “three groups” explanation to have a lot of explanatory power.

      There are three groups!

      1. The people who, if they vote at all, will vote for you no matter what.
      2. The people who, if they vote at all, will vote for your opposition no matter what.
      3. The people who could be persuaded to vote either way.

      What you want to do is get the people in #1 out. GET OUT THE VOTE! is about getting these people out to vote. You want these people energized and you want them to bring a friend (because, presumably, they’re friends with people who vote the same way).

      What you want to do with #2 people is get them depressed. “Ah, voting doesn’t matter anyway.” You want them to wake up on Wednesday and say “oh, was election day yesterday? I forgot.”

      What you want to do with #3 people is get them to swing your way… and if they don’t swing your way, you want them to not be inspired to vote.

      A lot of times, I see the whole “rally the base!” thing as something that forgets that there are #2s and #3s. I think that rallying the base is *AWESOME*. But if you rally the base in such a way that the opposition is equally inspired to get out the vote, you’ve not really accomplished much even though you’ve rallied your base. (And if you do something that not only inspires your opposition but turns off people who could swing either way, you’ve actually gone and shot yourself in the foot!)

      So when it comes to whether it’s more important to rally the base or win converts, I’d say that, at the end of the day, it’s more important to have Raw Numbers. If rallying the base will give you more raw numbers, then rally the base. If winning converts will give you more raw numbers, then win converts. Rallying the base and/or winning converts is a means to an end and is only the right thing to do in any given situation if the end is accomplished.

      But there are a lot of folks who see “firing up the base” as an end in itself without taking into account how much it turns off the #3s and without taking into account how much it turns on the #2s.

      And if you do that enough times, you get people to vote against your union even though all of the union members are on board. Even though every one of your on-board union members are fired up.

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      • That makes a lot of sense, but in my union (and state, at least for public-sector unions) we’re a card check system. So if someone decides to be a union member, then that’s their vote.

        It doesn’t really change your calculations, except for your last two sentences, and it doesn’t change it by much.

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  9. re: Public Sector Unions

    Government has no profits to share with its workers.

    Any justification for public-sector unions is entirely different or wildly contorted from the ideological underpinnings of private-sector unions.

    Trades journeyman, wholly opposed to public employee unions.

    Also wholly opposed to the roughly 50% of all “victims’ rights” groups which are front organizations to conduct political activities of law enforcement unions
    (as I learned about, and was being taught to do, as part of my political science minor at the University of Illinois, and how to deal with the tricky question of whether to take over an existing victims’ rights group or form a new one to act as a political front for a public employee union).

    I am opposed to the white-collar crime and organized crime* of law enforcement personnel sitting as officers and directors for victims’ rights groups, and the de facto policy of permitting present and former public employees to engage in felonious conduct uninterrupted.

    _______________
    * I use the terms “white-collar crime” and “organized crime” as commonly understood in the field of criminal justice or criminology. If you have any questions on that, or have a competing definition, I can scan some vocabulary words from the back of a textbook for you, and see that it gets to you.
    Every criminology textbook in the world will mention public employees within two paragraphs of opening the section on white-collar crime.

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