Response to “Janus”: Take Their Intellectual “Property”

For the last four decades, the right has been actively working to rig the rules to undermine progressives both politically and economically. They aren’t just interested in winning an election; they want to destroy any basis for progressive change.

This is why they have been so intent on attacking unions. Unlike many centrist Democrats, the right realizes that the labor movement has been at the center of most progressive change in the last century. This is why Reagan made it a priority to weaken labor at the beginning of his administration.

In his first three months in office, he picked a fight with the conservative air traffic controllers’ union (one of the few which supported his election) and set a new trend in which employers fired rather than negotiated with striking workers. He then created a logjam at the National Labor Relations Board that made it virtually useless as a mechanism for protecting workers’ right to organize.

These policies, along with anti-labor, trade and monetary policies, were a punch in the gut of private sector unions. Over the next three decades, the unionization rate in the private sector fell from almost 20 percent to just 7 percent.

Since unionization rates in the public sector were little changed over this period, it was inevitable that the right would turn their focus to this bastion of support for progressive policy change. When Republicans gained control of historically progressive states like Wisconsin and Michigan, they quickly moved to weaken the public sector unions.

Now they are looking to do this on a national basis with the Janus ruling. Just to be clear, this has nothing to do with individual freedom. It is a question of whether workers can have a contract that imposes conditions on employment.

No one disputes that the employer can impose conditions on employment. For example, the court would have no problem if the state of California requires its employees to pay 5 percent of their wage to a health insurer of its choosing. If you don’t like that health insurer, the Republican justices say you should just work somewhere else.

What the Republican court said is that the workers can’t have a contract that puts a condition on employment by requiring a representation fee to the union that they have chosen to represent them. This has absolutely zero to do with individual rights; it is entirely about the court limiting the power of workers to sign effective contracts.

This is a big victory for the enemies of working people. We should certainly look to fight it directly, but we should also take a lesson from the bad guys: undermine their base of power.  

There are ways this can be done if we are creative. The Trump administration has given us a great opportunity with its trade war with China. One of the big issues it is fighting over is China’s alleged theft of US intellectual property.

While this is an area where the media have been chiming in support of the idea that we all have a stake in the intellectual property of Merck, Microsoft and Disney (go home team!), the reality is that the vast majority of us stand to benefit from China not respecting their claims. As any trade economist can tell you, if China doesn’t pay these companies what they think they are owed, American consumers will be able to save on goods and services produced in China. Why should US workers want to pay more money to make these huge companies richer?

Trump’s trade war gives workers a great opportunity to undermine one of the main mechanisms through which income has been redistributed upwards in the last four decades. Without patent and copyright protection on Microsoft’s software, Bill Gates would still be working for a living. Moreover, the rest of us would be saving hundreds of billions of dollars annually from cheap drugs, medical equipment and software. (Yes, we have to pay for innovation, but there are more efficient mechanisms that don’t redistribute as much money upwards, see Rigged, chapter 5.)

There are other ways in which we can look to weaken the economic power of labor’s enemies directly. For example, relatively progressive states can pass rules of corporate governance that make it more difficult for CEOs to take home paychecks in the tens of millions of dollars. They can also deny tax-exempt status to nonprofits that pay top management high six-figure or seven-figure salaries.

These and other proposals are discussed in more detail in my (free) book Rigged. The point is that we should be thinking of ways to take the battle to their home court and not continually playing defense. Reversing the ways in which they have rigged the market over the last four decades and taking away their money will not be easy, but it is the only reasonable route forward. If all our battles are defensive, then the only uncertainty is how much we lose.