Left-libertarians are dismayed at the support most libertarians and classical liberals have been giving to right-to-work laws, which withdraw recognition from clauses in collective bargaining contracts that require all employees in a workplace to pay agency fees to the union that represents that workplace. Many libertarians have supported right-to-work laws on the grounds that they “balance the playing field” somewhat or undo some of the harm caused by the National Labor Relations Act (or “Wagner Act”), which requires employers to bargain collectively with a union that achieves majority support in an organization election. But left-libertarians aren’t buying that as a rationale for laws that withdraw recognition from a particular type of private contract.
[T]he distortions in human life caused by intrusive laws always raise the temptation to patch over the problems with additional legislation. That additional legislation is likely to lead to more problems … That’s why we’re always better off dumping bad laws than trying to “fix” them in a spiraling game of spackle-the-law books.
Right-to-work proponents argue that the laws they favor only help to level the playing field created by government action—by reining in special privileges granted to unions under existing labor law.
But those laws actually presuppose the restrictions inherent in that framework, while extending them further. One goal of the NLRA and later federal laws was to reduce conflict—-and in effect reduce workers’ choices—-by ensuring that just one union, moderate enough to win majority support (and therefore moderate enough to be cooperative with employers), would operate in a given workplace, while suppressing more radical unions and labor actions.
And finally here is Sheldon Richman, quoting Percy Greaves:
“Two wrongs never make a right. The economic answer is to repeal the bad intervention and not try to counterbalance it with another bad intervention. Such moves only provide the politicians with greater power over the entire economy.” In other words, the end doesn’t justify the means.
Is the “two wrongs don’t make a right” analogy persuasive here? First, let’s specify that we are looking at right-to-work laws for private-sector workers. RTW laws for public-sector workers could be viewed simply as the government’s tying its hands with respect to its own future collective bargaining negotiations, something that few would deny they have a moral right to do. Second, let’s all agree that the purpose of collective bargaining is, above all, to establish a monopoly of labor with respect to a particular employer. The union uses its bargaining power to negotiate higher wages and benefits than they could receive on a competitive labor market. That this is the primary purpose of unions, especially in the post-Wagner Act era, isn’t disputed by mainstream labor economists (see Mancur Olson’s Logic of Collective Action, among many others). Third, let’s agree as libertarians that the Wagner Act is unjust, that it wrongly forces employers to negotiate with a union and wrongly forces employees to be represented by a union even if they do not consent to such representation. Of course, non-libertarian liberals can and do disagree with this proposition.
Now, let’s consider an inflammatory analogy to the Wagner Act. Imagine that the government decides to give its official stamp of approval to Mafia protection contracts reached with shopkeepers (call it the “National Mob-Small Business Relations Act” (NMSBRA)). So long as the Mafia follows certain procedures in strongarming shop owners into agreeing to their demands, the courts will enforce contracts reached under duress. To libertarians, left and right, there is not much fundamentally morally different between the Wagner Act and the NMSBRA.
Now, suppose some of these mob protection contracts contain exclusive-supplier clauses. They state that the hapless storeowner not only must pay off the mob, but must use only mob-approved suppliers. In response, some states pass “right-to-supply” laws, which forbid the enforcement of mob protection contracts’ exclusive-supplier clauses, while leaving the basic structure of the NMSBRA intact.
Do right-to-supply laws take away freedom? After all, they interfere with “private contracts,” and it is possible, though unlikely, that some shopkeepers would want to sign exclusive-supplier contracts with the Mafia even in the absence of any threat of coercion.(*)
But surely, refusing to enforce a particular, exploitative provision of an extorted “contract” does not in any tangible sense infringe on freedom and, in fact, enhances it. By the logic of left-libertarian opponents of right-to-work, if the government ever adopted something like the NMSBRA, then “right-to-supply” laws ameliorating the oppression should be resisted as intrusions into supposed “freedom of contract.” This position reminds me of purist opponents of legal medical marijuana on the grounds that only fully legal marijuana is worth supporting.
Now, I don’t want to imply that mob protection contracts are in fact morally equivalent to union shop contracts. I am merely arguing that they are analogous. Sometimes an “extreme” analogy can help us better understand the moral principles behind our judgments. In this case, I see no intuitively appealing moral principle that could equally condemn right-to-work laws and the Wagner Act, as left-libertarians wish.
But there’s more. Union contracts are collusive contracts in restraint of trade, intended to drive up “prices” (wages) through monopoly power. If left-libertarians support enforcing such contracts, then it seems they are also committed to supporting the enforcement of collusive contracts by employers and producers. Given the small number of employers and producers, they are much more likely to be able to solve their collective-action problems than are workers and consumers, and therefore to exploit them through the use of collusive contracts, were the state to enforce them. If the state enforced minimum prices in markets where producers had agreed to them, the result would clearly be not just inefficient markets, but a massive transfer of wealth from consumers to capitalists.
Now, I can understand how egalitarian liberals might reasonably support different standards for collusive contracts among workers and among employers or producers. Collusion by workers on a sufficiently large scale might actually drive down the rate of profit and transfer wealth from investors to workers. But libertarians don’t endorse the use of the state machinery for the pure purpose of wealth transfer between classes. Individualist anarchists like Richman and Chartier seem committed to supporting the legal enforcement of collusive contracts, even if they result in massive harm to consumers and workers. That’s certainly a consistent position for a hardcore libertarian to take, but more moderate libertarians might well wonder whether all contracts ought to be legally enforceable (like indentured servitude contracts). Collusive contracts pose a major intuitive challenge to the position that the law should enforce all voluntarily agreed-upon contracts. And if we oppose collusive contracts in general, then we must also oppose collective bargaining in the workplace.
(*) Note: one way to design a right-to-work law so as to remove all suspicion of interference with freedom of contract is to apply it solely to collective bargaining contracts reached between an employer and an NLRB-certified union. National Labor Relations Board (NLRB) certification is an indicator that the union has chosen to resort to extortion via the state to achieve its aims. Limiting the union’s power to enforce that extortion increases freedom categorically (on the libertarian understanding of freedom).