Our friend Shikha Dalmia doesn’t share our view of so-called “right-to-work” (RTW) laws, or that of her fellow Reason writer J. D. Tuccille. Along with such other modern libertarians as Milton Friedman and Percy L. Greaves Jr., we believe libertarians should object to such laws. She doesn’t.

RTW laws are problematic for multiple reasons. For instance: they interfere with freedom of contract. And they boost state power and help to legitimize and intensify state intervention inthe economy. (See Gary Chartier, “What’s Wrong with Right-to-Work,” and Sheldon Richman,“Right-to-Work Laws and the Modern Libertarian Tradition.”)

For libertarians who embrace deontological natural-law prohibitions on interference with others’ just property, the fact that such laws forcibly impede contract formation will be, on its own,enough to rule out supporting them. Libertarians who oppose interference with others’ property and labor because of its systemic consequences will have similar reasons to reject RTW laws.

Of course, the world of work is already distorted by a range of government interventions. And some proponents of RTW laws see them as simply efforts to reduce the level of government involvement in the workplace. On this view, the Wagner Act framework forces employers to recognize and bargain with unions, something they wouldn’t do otherwise, and thus effectively enables unions to force unwilling workers to be members or at least pay union expenses. But we’re not sure this is an accurate characterization of the situation.

In brief: an employer might be entirely willing to bargain with a union absent the existing labor law framework to achieve certain kinds of efficiencies and to promote workplace comity. In addition, an unwilling employer could perfectly well be brought to the bargaining table by a union employing nonviolent tactics—something that certainly happened before modern labor law was in place. So government action isn’t a necessary condition for the conclusion of a union contract. And, since the government doesn’t force every employer to conclude a union contract,workers who would prefer not to work in union workplaces are not in any sense forced by the state to join unions.

Dalmia argues that RTW laws are Pareto-improving: they harm no one while benefiting employers and workers who wish to conclude nonunion contracts. But by restricting workers who could nonviolently persuade employers to conclude union-shop contracts from doing so, and by preventing employers who might see advantages to such contracts from making them with unions, RTW laws do, in fact, forcibly prevent some people from realizing their preferences.

In other words, an RTW law takes away a bargaining chip in the form of a possible contract provision. In a free environment, a workers’ association might offer a concession of value toan employer in return for a union-shop provision; alternatively, it might offer to forgo such a provision in return for a concession from the employer. RTW laws foreclose this sort of bargaining; it is simply irrelevant that their advocates can’t imagine why an employer might agree to such a provision.

Proponents of RTW laws will say that the Wagner Act removes any incentive for a worker association to bargain over a union-shop agreement, but that’s precisely our point. Wagner and other federal labor laws are the culprits: they should be the targets of those who favor untrammeled workplace freedom and who seek to enhance workers’ ability to change their workplaces. We have no wish to make the perfect the enemy of the good. Instead, we challenge the claim that enacting RTW laws is a move toward the good! And we do so because such laws prohibit a peaceful practice rather than repealing bad legislation.

The Wagner Act framework was created to domesticate and pacify unions. But someone who maintains that RTW laws are justifiable because they mitigate the effects of prior interventions should recognize that there’s an obvious counter: In line with Greaves’s argument, a history of interventions over many centuries has boosted the position of the employing classes in relation to those they employ, and any concessions made to labor under Wagner might be defended as responses to those prior interventions.

We don’t intend to justify any intervention. Thus, we reject the Wagner Act framework in toto, including Taft-Hartley. With Murray Rothbard, we oppose “extending the powers of the federal government to apply criteria of ‘fairness’ to unions as well as employers,” “extend[ing] government power over labor relations instead of removing it completely.”

Dalmia says getting rid of Wagner isn’t a viable libertarian strategy because it “under-estimates the capacity of people to put up with hell. It assumes that the worse things get, the more people are motivated to change them. That, however, is far from clear.”

Our answer is, first, that Wagner is becoming irrelevant. (See Steve Chapman on the “Irrelevance of ‘Right-to-Work’ Laws.”) Second, the end doesn’t justify the means. And, third, Dalmia might be read as implying that a union shop is, in fact, hellish, worth embracing by workers and employers only, if at all, to pacify union bosses; but, as we have already noted, we think there are reasons to imagine that union shop arrangements might emerge in freed markets.

As Rothbard observed in For a New Liberty, the Wagner framework “serves, first, to aggrandize the power of government over labor relations, and second, to foster a suitably integrated and Establishment-minded unionism as junior partner in government’s role over the economy.”While it obviously offers some advantages to organized labor, it hobbles labor organizing in other ways. As libertarians and as workers, we would be happy to see Wagner and Taft-Hartley repealed; we oppose state intervention in the economy on a consistent basis, and we believe that,especially in a world in which network culture facilitates concerted action, workers would have nothing to fear from a free labor market. Meanwhile, we see no point in making today’s unfree labor market more state-riddled—and therefore less free—by limiting the options available to workers and employers.

The whole point of labor unions, in the minds of RTW supporters, is to exploit the Wagner Act requirement that parties “negotiate in good faith,” thereby moving wages and benefits up in a way a free market in labor would never allow. Jason Sorens even compares unions with Mafia protection rackets in this regard (“Right-to-Work: An Inflammatory Analogy,” Pileus, December 17).

To describe this line of reasoning as selective would be a gross understatement. Labor is not the only interest engaging in collective bargaining. What about the individuals involved in the employing corporation? Aren’t these businesses effectively “capital unions” exploiting incorporation laws to achieve a better bargaining position relative to labor? Isn’t that why investors pool their resources and form businesses — to get better deals in the market through economies of scale? Isn’t that why they try to get investors rather than simply borrowing all the money for their start-up costs — to spread the risk and the reward?

Labor unions are only one side of this story. To emphasize collusion on the workers’ side is to leave another form of collusion totally unaddressed. Corporations are capital unions, organizations whose members work together to negotiate wages and benefits (and other costs, of course) downwards to get the best return for themselves. Why is one form of collusion wrong and the other not?

I’d add that, in historical comparison to labor unions, corporations are much more fully creatures of the state. While labor unions have existed for much of their history in legally unrecognized forms, arising from the spontaneous organizing efforts of workers themselves, incorporation has always been a government-chartered, government-privileged, and therefore necessarily statist activity. There’s nothing “free market” in the fact that corporations are dealt with on their own, special terms. Conferring limited liability, entity status, and other privileges on corporations is intervention to skew the market, a crime that can only be laid at the feet of the state and the capitalists that run it.

I view the RTW movement as not only the argument that capital should get to deal with labor in a privileged manner, but also as a defense of the entire balance of power between employers and employees. It’s about more than just authoritarianism and a system that favors capital over labor. It’s also about the legal codification of class distinctions inherent in the structure of production.

To the extent that capitalists decry so-called “class warfare,” they are glossing over the privileged terms on which they themselves do business — claiming there are no classes of consequence while entrenching their own class, allegedly deferring to the market, while actually ensuring that market always delivers the balance of power they desire.

If RTW folks truly believe that each and every worker deserves the right to negotiate individually with the capital union, why stop there? Why not also grant each and every shareholder, investor, creditor, and other owner of the corporate capital union the right to negotiate individually with the worker himself or his labor union? Why should both workers and owners be forced to deal with the extractive, exploitative management class as the exclusive agent of the corporation? If it’s unfair for the labor union to monopolize labor relative to a given employer, isn’t it equally unfair for the capital union to monopolize capital relative to a given employee?

The reason is that capital unions are politically and legally favored in labor negotiations, because they have always been favored. Our entire political economy is built around doing business on their terms. If you want a genuinely free market in labor, you can start by ridding yourself of the biased narratives that explain how collective bargaining is virtuous and crucial for those who have money, but unnecessary and evil for those who don’t.

Friedman compared RTW to antidiscrimination laws, regarding them both as unjustified interference with the rights of employers to hire whomever they choose. Greaves saw RTW as inconsistent with markets and freedom because it forbids employers and unions from reaching a particular kind of voluntary agreement, namely, one that requires workers to compensate a union for representational services, as a condition of employment. Greaves correctly argued that RTW was only an issue because of earlier government intervention in the form of the Wagner Act, which requires an employer to deal with a union, and all workers to financially support it, if a majority of workers designate it as their bargaining agent. Greaves said that the free-market response to the compulsion in Wagner is repeal of Wagner, not further government intervention through an outlawing of employer-union exclusive contracts.

The irony is that Wagner plus the 1947 Taft-Hartley amendments constitute a vast pro-business program to tame the labor movement. Instead of (threats of) sudden wildcat strikes, sympathy boycotts, and secondary strikes, the federal labor-law regime substituted cooling-off periods, compulsory arbitration, and many other restrictions. “Responsible” labor leaders were brought to the table as junior partners in the corporate state and were deputized to police their members’ compliance with the negotiated contracts. No wonder the Wobblies hated Wagner-Taft-Hartley. RTW was a way to avoid throwing the baby out with the bathwater. I seriously doubt that big employers would want to get rid of Wagner-Taft-Hartley if they had the chance.

Read the article here.