Posts Tagged ‘equality’
The left’s alignment with unions is more than merely political—it is ideological. The major justification for continued existence of unions, particularly public sector unions, borrows heavily from a liberal conception of redistributive justice, as follows:
- As a matter of first principles, all Americans are entitled to a minimum standard of living.
- As a matter of observed fact, impersonal market forces sometimes do not result in compensation that comports with that preconceived standard of living.
- Therefore, the market is an unsatisfactory mechanism for assigning economic values to labor.
I do not hide my antipathy for this line of reasoning, but I will not assail it here. I want to instead press upon participants in the debate over organized labor, and particularly over public sector unions, of the impossibility of meaningful progress in that debate without acknowledging the standoff between conservative and liberal first principles. More specifically, I contend that the labor movement will fail to win many converts because it either cannot or will not approach the issues as most Americans do: by focusing on procedural fairness, rather than substantive outcomes. While many people might believe they should earn more money, for example, they eschew procedurally unfair mechanisms to achieve it. The abuse of procedural mechanisms, however, is precisely the criticism lodged against public sector unions.
As I discussed at length in a previous post, public sector unions present, at a minimum, the following forms of procedural unfairness:
- Striking in the public sector exerts political rather than economic pressure on the government (who continues to collect taxes regardless), and is thus designed to harm the members of the public, particularly the poor, who depend on government services that unions are contracted to provide.
- The employer with whom public employee unions negotiate—the government—is not just another industry, and thus normal market constraints are often supplanted by political restraints and more flexible accounting practices that enable unfair and unrealistic concessions in favor of unions.
- Using their substantial political clout, public employee unions are able to influence elections and thus exert control over the representatives with whom they negotiate, resulting in less-than-arms’-length negotiations.
- Accordingly, public employee unions are able to negotiate deals that often violate state constitutional proscriptions against retroactive compensation and incurring liabilities without voter approval.
- Public employee unions represent one of the most powerful special interest groups by, in part, having successfully lobbied for laws requiring union dues be automatically collected from their members.
- Public employee unions lobby against laws, such as Right to Work, that prohibit coercive and anti-competitive practices.
- Public employee unions, unlike the general public, are permitted to press their interests upon elected officials in closed-door negotiations.
- All this substantial political influence wielded by public sector unions constitutes an improper delegation of the police power properly held in trust by elected officials for the protection of the health, safety, welfare, and morals of the public.
The dispute over public sector unions, then, is between mainstream Americans in the private sector who believe fairness is achieved with the guarantee of fair and adequate procedures, and union supporters who believe fairness can only be determined by looking to substantive outcomes. For the first group, public sector unions are unfair because they are given and make resort to special procedures not available to other groups. For the second group, these various procedural objections are unpersuasive so long as public employees receive adequate compensation according to conceptions of liberal redistributive justice.
The two groups hopelessly talk past each other, then, as they are each lobbying for disparate forms of justice. As a matter of practical reality, the two conceptions of justice are mutually exclusive: The guarantee of procedural fairness is precisely the guarantee of fixed procedures in order to achieve particularized outcomes based on individual merit. The guarantee of substantive fairness is precisely the guarantee of particularized procedures in order to achieve fixed outcomes based on conceptions of a “human right” to membership in the Middle Class.
It should be obvious, then, that for advocates of procedural fairness, whether public employees are overcompensated is merely a derivative claim—the principal claim is procedural unfairness. The disparity in substantive outcomes that results between public and private employees—despite their being otherwise similarly situated—is evidence of the fundamental procedural problem. (Incidentally, the same basic argument runs with respect to wealthy financiers. Mainstream Americans are not overly bothered by the notion that someone, somewhere, might be very rich. They are bothered instead by the idea that they might have become rich because of unfair tax policies, unfair regulatory schemes, or outright fraud—all of which are examples of procedural unfairness.)
This is why liberals will not answer the questions about the basic unfairness of public sector unions—they have no interest in fixing the unions. It’s the unions who’ve got the right idea, according to liberals: fix the value of labor in the first event to meet a basic standard of living, and then work backwards to somehow make all the math work. Instead, liberals are interested in making the rest of the workplace look more like the public sector.
The strategy seems like it would be a slam-dunk: who wouldn’t favor an approach that would increase their compensation? Thus, the fact that as many Americans disfavor as favor public employee unions strikes liberals as evidence of a stupid or brainwashed population captured by powerful corporate interests. I submit instead that liberals have to this point ignored Americans’ strong predisposition toward procedural fairness, and that, provided procedural fairness is reasonably assured, Americans are willing to accept disparate outcomes—the bugbear of liberal ideology. This is the bitter pill that liberals are reluctant to swallow, and it is why they have not made meaningful progress in advancing the dialog on public sector unions or addressing their many systemic abuses.
Cross-Posted at The League of Ordinary Gentlemen
Chapman law professor Donald J. Kochan has a new essay available on SSRN entitled On Equality: The Anti-Interference Principle. From the abstract:
[T]his Essay seeks to summarize the general equality concept, and propose that the legal discourse on equality center on a requirement that governmental power must protect and respect equal treatment and opportunity, unconstrained, not equal outcomes. It argues that, to do so, equality requires that the government engage in anti-interference with individual choices and activities, so long as these things create no negative externalities to others. Absent avoidance of harm – special designations, privileges, or classifications necessarily interfere with equality in a manner that consequently violates the Anti-Interference Principle. Such actions necessarily interfere with equality. As such, if we are serious about respecting equality, such interference actions should be avoided.
Here are a few of my observations after reading the piece. Further explaining the anti-interference principle, Professor Kochan says:
[A]t the very least, the [Equal Protection] Clause should be interpreted to mean that where one group or class is granted a privilege or immunity, another group should not be denied the same. The two clauses in the Fourteenth Amendment—privileges or immunities and equal protection—must be read together as supporting a general constitutional recognition of an equality concept.
. . . . The government has created far too many privileges, but once they are created, they should be available for all people. Equality demands it. Grant nothing beyond basic liberty if you will, but once we grant some privilege or immunity then it should be made equally available without special beneficiaries. Favoring some over others would violate the anti-interference principle.
(Italics mine.) I’m skeptical as to the interpretive accuracy of the first paragraph. The Equal Protection Clause grants protection of rights, but does not itself contain a substantive component. I cannot say I’m thrilled with the advent of a new retroactive interpretive principle that would further subvert the original meaning of the Fourteenth Amendment, even if toward beneficent ends.
The italicized language in the second paragraph suggests an appealing idea—i.e., that the government’s grant of entitlements ought to force the government to ensure those entitlements are equally applied. In the abstract, I like this for the same reason I reflexively like the proposed REINS Act, which would force Congress to approve all bureaucratic rule-making with an expected annual economic impact of $100 million or more. If the government is going to act, it has to do its due diligence and follow-through.
In this regard, I would have liked to see an application of how this might work with respect to licensing laws. Instead, Professor Kochan references the California same-sex marriage legal battle. However, that issue involves too many strands of the debate over the shared borders between law and culture. Thus, it’s not terribly useful in a discussion of an equality principle. For example, this passage overlooks those questions altogether:
Creating an institution like marriage yet excluding segments of the population from accessing the institution and all the benefits (and burdens) available in it is differential treatment not based on a preference to avoid harm, or precluding someone from a benefit because they have done something legally wrong, but instead based on some artificial classification based on a preference of giving more to some over others.
First, marriage is fundamentally a social institution, not a legal institution. Thus, to suggest government “created” the institution is incorrect. Second, and relatedly, the suggestion that the definition or inner workings of marriage improperly involves “artificial classifications” misses the point. From a purely legal standpoint, marriage is altogether arbitrary. It is an outworking of human nature, not legal necessity. Legal recognition of marriage is just that: the recognition of an institution borne of the people those laws mean to govern. As I previously explained for the law to change or add to that institution is the tail wagging the dog, a breach of the treaty between law and society.
Thus, I also would have liked to see some application of the non-interference principle and what constitutes “unacceptable negative externalities” to more vexing examples of morals legislation, such as suicide, euthanasia, animal cruelty, bestiality, prostitution, polygamy, adult incest, public nudity, profanity, stem cell research, human cloning, and so on. The essay quotes J.S. Mill, stating that “the individual is not accountable to society for his actions.” Thus, one is left wondering whether the anti-interference principle is essentially just another way of describing libertarianism.
A couple months back, Andi and I went to wish farewell to one of many friends who are picking up and heading Out East from California. Our friend’s dad let me borrow Thom Hartmann’s Threshold, a sort of progressivist manifesto. Much of it is fairly predictable stuff, employing lots of distressing anecdotes developing the ultimate lesson that the Environment is good and cheesed at us meddlesome humans. There is at least one idea, however, that I thought very interesting:
In his manuscript “Toys, War, and Faith: Democracy in Jeopardy,” Maj. William C. Gladish suggests that this special breed of person [speaking of corporate executives] is actually a rare commodity, and thus highly valued. He notes that corporate executives make so much money because of simple supply and demand. There are, of course, many people out there with the best education from the best schools, raised in upper-class families, who know how to play the games of status, corporate intrigue, and power. The labor pool would seem to be quite large. But, Gladish points outs, “There’s another and more demanding requirement to meet. They must be willing to operate in a runaway economic and financial system that demands the exploitation of humanity and the environment for short-term gain. This is a disturbing contradiction to their children’s interests and their own intelligence, education, cultural appreciation, and religious beliefs.
“It’s this second requirement,” Gladish notes, “that drastically reduces the number of quality candidates [for corporations] to pick from. Most people in this group are not willing to forsake God, family, and humanity to further corporate interest in a predatory financial system. For the small percentage of people left, the system continues to increase salaries and benefit packages to entice the most qualified and ruthless to detach themselves from humanity and become corporate executives and their hired guns.”
Without going so far as Gladish—and certainly not so far as Hartmann, who calls corporate executives “sociopaths”—I think there is something to this point. It cannot be persuasively suggested that the entire corporate culture is full of benevolent free market warriors who want above all to keep the government at bay to leave the private sector free to serve the public. Nor does the trite disclaimer, that yes, there will always be some bad apples, ameliorate the condition. It’s more than just “bad apples.” The image of the “invisible hand” has proved too powerful for its own good, leading to overuse and oversimplification.
At bottom, it is true that a conflict of values occurs among us, as economic actors, in our respective quests for pecuniary increase. Corporations—those legal persons among us who happen to lack the quality of being human—are authorized and duty-bound to advance but one objective. This objective, of course, is one shared between corporations and humans. Humans, however, are bogged down in their pursuit of money by nagging scruples such as respect for others, respect for the environment, an abiding consideration for family and community and the propagation and well-being of their offspring, etc.
A human thus must act rationally to achieve several objectives, only one of which is the accumulation of wealth. A corporation, on the other hand, enjoys the advantage of being significantly more streamlined in its pursuits. It is limited only to the extent it can fill its ranks with enough humans who are able to sublimate or eliminate their extraneous desires. Thus, it seems plausible that the very existence of corporations stimulates the proliferation of individuals with a substantially redacted set of scruples and affections.
There is little that can be done to the corporation itself to improve this condition. The condition, in fact, is the same that our Founders identified in the nature of government itself. The solution devised for the problem in government was to decentralize it and to limit its scope through federalism. The solution our leaders have devised to prevent the accumulation of power by corporations, oddly, has been to increase the power of government. This not only undoes the careful work of our Framers, it also makes it much more convenient for corporations to capture more influence and control. For example, Jonathan Adler recently pointed out that, during Senator Al Franken’s opening statement during Elena Kagan’s confirmation hearings, in which the Senator railed against the recent Citizen United opinion, he asked:
“Do you think those [environmental and consumer protection] laws would have stood a chance if Standard Oil and GM could have spent millions of dollars advertising against vulnerable congressmen, by name, in the last months before their elections?” Even assuming that major corporations would be willing to risk consumer backlash by entering partisan political contests so directly, this example fails. The federal Clean Air Act, and in particular the provisions imposing nationwide emission controls on new motor vehicles, were not opposed by the major automakers. To the contrary, the major automakers were the primary backers of federal motor vehicle emission controls, as they sought to preempt more stringent (and potentially variable) state standards. Absent automaker support, it’s questionable whether limitations on automotive emissions would ever have passed at all.
So, to answer Senator Franken’s question: Yes. The Clean Air Act would have “stood a chance” even if GM could have spent millions of dollars on political advertising, because GM would have spent millions of dollars in support of legislators who supported federal air pollution controls.
Getting back to the contemporary fervor over wealth distribution, one helpful observation concerns the way American jobs have moved further and further from “actual” work. In a recent episode of the NBC series Community, Troy realizes he has a gift for plumbing, but rejects the urgings to pursue this practical trade. Instead, he vows: “I’m gonna be sophisticated and have no job. Or a job that looks from a distance like I do nothing.” I think this is a powerful statement about American sentiment toward labor. For my part, I have a job that, from a distance, looks like I do nothing. An attorney’s job is made up entirely of talking and writing. It can take a bit of solving for X to figure out those efforts yield a net benefit to the universe, as the efforts are so attenuated from the business of corporeal stuff. I think this phenomenon holds for many of our jobs, including those of the very wealthy.
Perhaps there is a connection here: if it all looks like we doing basically nothing, then why should the ostensible nothing performed by folks with names like Pendlebury-Davenport or a Mannering-Phipps yield so much more of the rich stuff than my ostensible nothing? Nothing and nothing alike, we might say, so spin the wheel and spread the love around. Fat Cats. Greedy Bastards. Eat the Rich.
In reality, we don’t do enough solving for X. If you have job that, from a distance, looks like you do nothing, then somewhere along the way there is probably some greedy bastard responsible for translating your otherwise useless skills into something you can hold, smell, eat, and put over your head. Without a willingness to give up sitting for a living and take up a profession that involves building or fixing or growing something, one should proceed with caution before striking out against corporate America.