The anti-libertarian nature of right-to-work laws

Right-wing libertarians tend to have a hostile relationship with organized labor. Labor unions have a long history of endorsing socialism, communism, and anarchism, all philosophies that libertarian capitalists vehemently oppose. Unions are also, by their very nature, collectivist organizations that primarily act to move the equilibrium price for labor higher than it would otherwise be. These union behaviors and ideological tendencies certainly annoy libertarians, but they are not necessarily inconsistent with right-wing libertarian principles.

As long as individual workers form into unions voluntarily, and the owners that they contract with do so voluntarily, there is nothing non-libertarian about the collective bargaining process. What more clear-headed libertarians object to then are not unions, but government policies which coerce owners into recognizing and bargaining with unions when they do not wish to do so. Requiring bosses to negotiate contracts with unions elected by the workers is, for libertarians, a wrongful violation of property rights and the imposition of government force. On this picture, the National Labor Relations Act is a violent infringement on the rights of individuals to freely trade with whomever they want.

This all makes sense if you accept the first principles and axioms of libertarian philosophy. If you happen to think property rights exist, and then think further that they are absolute rights, the libertarian conclusions follow. Pragmatically speaking, the historical reason for the construction of labor laws was the existence of persistent industrial strife. That strife would boil up periodically and shut down entire industrial sectors which imperiled people across the country and negatively affected the economy as a whole. Nonetheless, in the narrow libertarian view, interventions even for those reasons are still unjust, and so they must oppose laws which protect union activity.

On the same note, however, libertarians should also be opposed to so-called right-to-work laws. These laws — which are on the books in 23 states — forbid unions and business owners from signing agreements that make union membership or payment of dues a requirement for those hired by the business. Government policies which prevent owners from voluntarily entering into an agreement to create a closed shop are as coercive and anti-libertarian as the union-friendly labor laws that typically attract much more libertarian ire.

Why should a union and a business owner be forcefully prevented from signing an agreement that requires prospective employees to join a union in order to be hired? It is not a violation of anyone’s freedom, not in the negative libertarian sense of the word. A worker looking for a job does not have a positive right to a non-union job. If this prospective employee does not want to join a union, she is completely free to avoid doing so by simply passing up the job. Government intervention in the form of right-to-work laws violates the property rights of business owners, dictating to them what they can and cannot contract for in the execution of those rights.

The anti-libertarian nature of right-to-work laws is pretty obvious which makes it a bit strange that libertarians focus far less attention on them than they do the National Labor Relations Act. One possible excuse a libertarian might provide is that although right-to-work laws violate libertarian principles, they are created to counteract other violations of libertarian principles. A libertarian who holds this view is tacitly endorsing the following preference ranking:

  1. No federal labor laws and no right-to-work laws.
  2. Federal labor laws and right-to-work laws existing simultaneously.
  3. Federal labor laws and no right to work laws.

It is clear that option 1 would be the preferred world for libertarians. In that world, there is no government intervention forcing businesses to recognize unions and no government intervention forcing them to not enter into certain agreements with unions. What is not so clear is why option 2 should be ranked above option 3.

In an additive sense, option 2 actually imposes two instances of forceful government intervention while option 3 imposes just one. In a more qualitative sense, both 2 and 3 are deviations from the libertarian ideal; they just attack property rights in different ways. As a theory that focuses on an ideal, libertarianism is incapable of determining which of the two non-ideal worlds is closer to the ideal than the other.

Despite this theoretical impasse, right-wing libertarians persistently attack union-friendly labor laws as unjust, while barely mentioning the business-friendly labor laws that are just as problematic in their worldview. If libertarians want to be consistent, they should be attacking right-to-work laws as adamantly as they attack the National Labor Relations Act. That they choose not to is somewhat telling.

The ideological significance of the financial crisis

The financial crisis is nearing its three year anniversary, and the ideologically-tinged battles over identifying its causes are still roaring on. For champions of the free market, much is at stake in explaining what led to the 2008 financial meltdown. On its face, it appears that banks and investors foolishly jumped on the bandwagon of an asset bubble driven by the extension of easy credit. When that bubble popped, the investment vehicles built on top of it saw a huge loss in value, causing a panic that would have — if not for government intervention — precipitated a world-wide financial collapse and great depression.

Investors and banks incompetently bankrupting themselves and bringing down the rest of the world with them is hard to reconcile with the usual rhetoric about the self-correcting, rational, efficient market. Defenders of that particular ideology are then pressed to find some way to explain away the crisis that absolves the market actors from the colossal mistakes that they made. If they can blame their actions on something else — ideally government behavior — then they can protect their free market ideology from what would otherwise be a devastating counter-example to its practicality.

Efforts to provide a government-blaming explanation have revolved around two main claims. The first is that the Community Reinvestment Act — a 1977 law that outlaws the racist practice of redlining — forced banks to make the bad mortgages that drove the asset bubble and the eventual financial collapse. At first glance, this argument is very implausible given that the law has been around for three decades, and only requires community banks not to discriminate between equally creditworthy individuals. Whatever one thought of the viability of the argument, it was crushed in the Financial Crisis Inquiry Commission report which found the following:

The Commission concludes the CRA [Community Reinvestment Act] was not a signifcant factor in subprime lending or the crisis. Many subprime lenders were not subject to the CRA. Research indicates only 6% of high-cost loans — a proxy for subprime loans — had any connection to the law. Loans made by CRA-regulated lenders in the neighborhoods in which they were required to lend were half as likely to default as similar loans made in the same neighborhoods by independent mortgage originators not subject to the law.

With that attempt to blame the government defeated, the only other argument coming from those trying to defend the market ideology centers around Fannie and Freddie. The arguments surrounding that are fairly technical and largely depend on disputes about definitions. I wont go into the discussion in depth here, but Mark Thoma provides an abundance of different analyses explaining where those arguments go wrong. The short of it is this: even though Fannie and Freddie did foolishly participate in subprime lending and securitization, they were late to the game and were only responding to existing market trends set by private originators and investment houses.

To that analysis, I would add that even if the behavior of Fannie and Freddie did lead banks and investors to create a speculative bubble, there is no reason it should have. Private market actors were under no obligation to buy mortgage-backed securities; ratings agencies were under no obligation to provide AAA ratings to those securities; investment firms were under no obligation to leverage themselves in a way that left them insolvent when the bubble burst; AIG was under no obligation to insure the mortgage-backed securities in a way that would eventually leave the firm bankrupt; and, other mortgage originators and investment banks were under no obligation to copy the practices of Fannie and Freddie (although we know that Fannie and Freddie were actually copying their bad practices).

The fact that market actors freely chose to do all of these things reflect that they had misjudged the risk the housing bubble posed, a sector-wide misjudgment that had catastrophic consequences for the entire world. Defenders of the ideology of unrestrained markets have nothing that they can say about those freely chosen decisions. Market actors are supposed to be acting on all of the knowledge that is available to them, including any distortions that Fannie and Freddie introduce, information about which was public and accessible. They are not supposed to make decisions which bankrupt their own firms and bring down the entire financial sector, certainly not en masse. But in this case, they did exactly that.

What the financial crisis represents is a real-world refutation of the idea that the market is rational and can be counted upon to self-regulate. In theory that argument has some compelling features. After all, why would a firm trying to maximize profits take actions which destroys itself. Whatever the reason is — incompetence, misplaced incentives, or irrational exuberance — we have a perfect example of firms doing just that.

If proponents of a wide-open free market were intellectually honest about this financial crisis, they would have to revise their views in the same way that Alan Greenspan — previously a proponent of the ideology of self-regulating markets — did soon after the meltdown took place. Of course, just because they should do it does not mean that they will. Given the central importance of this view for the entire ideology of the right wing, I am doubtful anything could ever convince them to abandon it.

Ways to think about government distribution policy

With the debt ceiling theatre nearly reaching its climax, remarks about spending cuts, tax increases, ending tax loopholes, and other sorts of deficit reduction approaches are being tossed out daily by politicians and political commentators. In addition to being a bit abstract, the debates surrounding these topics often devolve into a muddled mess. One of the primary reasons for the muddling is the confused ways that people try to understand government policy that affects economic distribution.

The chief confusion is centered around what we consider the baseline to be when making comparisons of different government distribution policies. With America’s strong laissez-faire tradition, it is common for individuals to take a roughly laissez-faire policy to be the baseline against which comparisons are made. Using a laissez-faire baseline, increasing taxes to fund programs for the poor is a form of redistrbution. Under the same baseline, decreasing taxes and cutting programs for the poor is not a form of redistribution; rather, it is a rectification of previous redistribution.

This logic also holds for tax loopholes and tax deductions. For better clarity, consider the mortgage interest deduction. Under this program, home owners are able to deduct from their income taxes the amount they pay in interest on their mortgage. If we consider the amount of income taxes paid at the established marginal rates to be the baseline, then the mortgage interest deduction is a form of targeted government spending. It is functionally indistinguishable from sending a check to homeowners for the amount of their mortgage interest. In the context of a marginal-rates baseline, targeted deductions are a way the government spends through the tax code.

Under a laissez-faire baseline, tax loopholes and tax deductions are not considered targeted government spending; instead, they are considered ways of rolling back — in a very narrow way — previous deviations from the laissez-faire norm. This is how conservative commentators are able to suggest that closing tax loopholes which permit corporations to pay far fewer taxes than the established marginal rates allow is a tax increase. Against a laissez-faire baseline, it is a tax increase because anything above no taxes is a tax increase. Against the aforementioned marginal-rates baseline, closing a tax loophole is not a tax increase; it is the elimination of a targeted government spending program.

It is clear then how confused this discussion can get. Depending upon your baseline, the very way that you understand and describe what a particular government action is changes dramatically. Although I mentioned two possible baselines above — the marginal-rates baseline and the laissez-faire baseline — there are dozens of other possible baselines as well. In an egalitarian framework, equal distribution of economic products would be considered the baseline, and anything which causes deviations from that would be considered a form of redistribution. Under a Rawlsian framework, a distribution of economic products which maximizes the minimum available to everyone would be the baseline, deviations from which would be redistribution.

None of these baselines can reasonably be considered a neutral default. The only group who might try to argue that their baseline is a neutral default would be the proponents of laissez-faire distribution policies. Within the political culture of the United States, that might be a safe bet rhetorically, but it is not a sound position. Laissez-faire distribution policies are just that: distribution policies. Proponents of a laissez-faire baseline like to think of their baseline as being what occurs without government intervention. But in fact, laissez-faire distributions are just as much a consequence of intentional public policy as any other distribution.

There are a whole set of government policies that are put in place to generate what we call laissez-faire economies. Municipalities create land title systems which establish a singular authority on who owns what land. They create property laws which permit individuals to exclusively control and own a piece of nature, while forbidding others from making any claim on that piece of nature. They build police forces to ensure compliance with those property laws. They create courts to enforce contract compliance. The list can go on and on. All of these actions are intentional policies set up to promote a particular lassiez-faire distribution.

Now laissez-faire proponents certainly have arguments they can make in favor of these policies. They might argue that they reflect certain narrow conceptions of property rights which they favor as the correct ones. They might also argue that laissez-faire distributions reflect merit. But in making those points, they are still arguing for the government to adopt and implement intentional public policies to generate an economic distribution that they favor. It is not a default, non-interventionist distribution; it is dependent on government policies just like any other approach.

No baseline should reasonably be considered a neutral default. They all require intentional public policy to realize. So it is not possible to suggest that tax deductions and tax loopholes are really government spending or that they are really lower taxes. From some baselines it is the former; from others, it is the latter. Although it might seem that we need a baseline to describe government actions, that’s not true. In fact, using baselines is precisely what causes the confusion inherent in divergent descriptions of the exact same government action.

The logical reality is that every set of government distribution policies is redistributive and unjust from the perspective of every other set of government distribution policies. Talking about one set while adopting the framework assumptions of another is always going to yield the conclusion that the set being discussed is wrong. Using baselines based on assumptions of certain frameworks is ideologically loaded from the very start which is precisely why those baselines yield such diverging understandings of identical government policies.

The real point of contention then should not be on what we name a particular government action since the names we use are already dependent upon ideas about what distribution policies the government ought to be pursuing. Instead, in a more honest debate, the discussion should simply be about what kinds of distribution policies the government should pursue and why it should do so. In that kind of debate — unchained from framework-specific naming disputes — there are many ways to think about government distribution policy.

Individuals can argue for a laissez-faire distribution policy if they are swayed by arguments for a certain narrow conception of property rights and merit. Individuals can argue for a distribution policy based on John Rawls’ Difference Principle if they think impartiality is central to economic justice issues. They can even argue for distribution policies which maximize a certain set of human capabilities in the population if they are impressed by the capability approach to economic justice championed by Amartya Sen and Martha Nussbaum. The list of course goes on.

What is important though is to understand that these are all different ways to begin thinking about government distribution policy, not ways to deviate from the default baseline (which does not exist). So long as political commentators continue to rely on unstated baselines in their analyses, they will never be able to avoid the pitfalls of that approach. This more expanded way to think about government distribution policy offers a way to turn the debate back into the substantive realm and to avoid the frustrations inherent in the existing approaches.