Democracy is rule by persuasion, but the unpersuasive often try to coerce the unpersuaded. Recent days have provided two illustrations of this tendency, both of them pertaining to labor unions, whose decades of declining membership testify to their waning power to persuade workers that unions add more value to workers' lives than they subtract.
Failing unions, like failing industries, turn to government for protection in the form of coercion. Failing industries have traditionally sought corporate welfare in the form of tariffs (coercion of consumers). Unions seek laws to confer what their persuasiveness cannot convince people to consent to.
Last Thursday, the Supreme Court ruled9 to 0 against the Washington Education Association (WEA), Washington state's teachers union, which was claiming a perverse government-conferred entitlement. Five days later, organized labor and its political allies, including she who would be president, marched in Washington, D.C. They were asking Congress to deny to workers, whom unions are trying to organize, the right to a secret ballot. Both cases also illustrate the increasingly casual resort to abridgements of the rights of free speech and association.
Many states, including Washington, allow "agency shop" agreements whereby unions can levy fees on public employees who choose not to join a union but are represented by the union in collective bargaining. Thirty years ago the Supreme Court held that nonmembers cannot be forced to pay the portion of union fees that are used not for collective bargaining but for political activities. Often states have "opt out" provisions, whereby nonmembers are required to request that the political portion of their fees be refunded.
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About 3,500 of Washington state's approximately 70,000 teachers choose not to join the WEA, which made opting out a tedious chore. To get their refund about 25 percent of their fees the nonmembers had to follow procedures detailed in six pages of arcane instructions.
In 1992, however, Washington voters approved by referendum an "opt in" rule. Unions were forbidden to use nonmembers' fees "to influence an election or to operate a political committee, unless affirmatively authorized by the individual" (emphasis added).
Amazingly, the WEA convinced the state Supreme Court that requiring it to ask permission before using other people's money for political speech that those people do not want to finance was an unconstitutional burden on the WEA's right of free speech. This novel (to be polite) theory did not persuade even one of the nine often fractious justices of the U.S. Supreme Court.
Speaking for the court, Justice Antonin Scalia noted that when government allows agency-shop arrangements, it creates a remarkable entitlement: It gives a private entity, a public employees union, "the power, in essence, to tax government employees." The WEA's complaint a notably brazen example of the entitlement mentality was against the supposedly burdensome "opt in" condition placed on its exercise of that power. With understandable asperity, Scalia said: "The notion that this modest limitation upon an extraordinary benefit violates the First Amendment is, to say the least, counterintuitive."
The WEA's whiny audacity was not more offensive than the aim organized labor tried to advance with yesterday's march and rally in the nation's capital. Unions were demonstrating in support of legislation with the Orwellian title Employee Free Choice Act. It would deny employees the choice of a secret ballot when voting on unionization of their workplace. Instead, union organizers would use the "card check" system, which allows them to pick the voters they want: Once a majority of workers exposed one at a time to face-to-face pressure from union organizers sign a union card, the union is automatically certified as the bargaining agent for all the workers.
The Supreme Court has said that the card-check system is "admittedly inferior to the election process." Hillary Clinton, who has given herself a makeover as a moderate, and who was elected by secret ballots, and who hopes that next year voters will use their secret ballots to give to her the power to nominate Supreme Court justices, nevertheless toes labor's line when she advocates abolishing workers' right to a secret ballot. Abolition, she says, will "create a fair and level playing field between workers and employers."
When in March the House passed card-check legislation for unpersuasive unions, a principal sponsor was Rep. George Miller (D-Calif.), who in 2001 wrote, with 15 colleagues, to Mexican officials, on behalf of the rights of Mexican workers, insisting "that the secret ballot is absolutely necessary in order to ensure that workers are not intimidated into voting for a union they might not otherwise choose." Now, that is persuasive.