December 19, 2012 9:18AM

Libertarians and Right to Work Laws

Right‐​to‐​work laws are back in the news after the one‐​time union stronghold of Michigan passed one.

Vinnie Vernuccio and Joe Lehman of Michigan’s Mackinac Center for Public Policy take a victory lap in the Wall Street Journal, agreeing with Governor Rick Snyder in calling the bill “pro‐​worker”:

Right to work does not change any aspect of collective bargaining other than preventing employees from getting fired for choosing not to join or remain in a union and pay union dues or agency fees, which may go toward political causes they don’t support. Collective bargaining still exists in right‐​to‐​work states, and workers are of course free to organize.

But not all libertarians agree. In the same day’s Wall Street Journal, columnist Holman Jenkins notes that

right‐​to‐​work laws are designed to restrict an employer’s freedom of contract. They prohibit an employer from making union membership a condition of employment.

Jenkins sees this restriction of contract as a “bad fix trying to compensate for a prior bad law,” the 1935 Wagner Act. Jenkins prefers what he calls a “principled” approach to the problem of worker‐​employer freedom — the “deregulation of labor relations.” That would allow employers the ability to make union membership a condition for employment if they so choose. Or not.

Sheldon Richman, a longtime libertarian who was for many years editor of the Freeman at the Foundation for Economic Education and is now vice president of the Future of Freedom Foundation, similarly views right‐​to‐​work laws as a bad intervention trying to counterbalance another bad intervention. He quotes Percy Greaves Jr., a student of Ludwig von Mises: “Intervention creates problems that, unless the original intervention is repealed, beget further intervention, and so on.” Richman urges instead that we “let states opt out of the Wagner regime….Rather than prohibiting voluntary union‐​shop agreements between employers and unions, a state legislature could pass a bill simply declaring that the NLRB had no jurisdiction in that state.” He also examines the views of scholars such as Hayek and Mises on right‐​to‐​work laws.

Gary Chartier, whose book Anarchy and Legal Order: Law and Politics for a Stateless Society, is about to come out from Cambridge University Press, also says, “Right‐​to‐​work laws limit workers’ and employers’ freedom of contract. They prevent workers and employers from making mutually beneficial agreements. They don’t belong in a free society.”

Economist David Henderson counters with an argument about second‐​best solutions:

Gary avoids mention of the word “monopoly.” He recognizes that federal labor law gives unions the power to negotiate for the whole labor force in a plant or a firm. That’s monopoly. Many libertarians, including me, have looked much more favorably on “right to work” laws as an offset to this illegitimate government‐​created monopoly. It’s only a small offset, as we’ll see.

So what do you do, given that we have this federal law that Gary and I agree is a bad law? Try to abolish it, of course. But what do you do meanwhile? Many libertarians have argued that you work within the existing law to try to minimize the harm done by monopoly unionism. And a way to do that is with right‐​to‐​work laws.

It’s true that such laws make it illegal for employers to do what some of them mightwant to do: namely hire only union workers, require everyone who works for them to join unions, or require everyone who works for them to pay dues to a union. But are there really likely to be many such employers? I don’t think so.

Shikha Dalmia of the Reason Foundation hammers home that point:

To oppose all reform that does not deliver total freedom in one fell swoop is a recipe for policy paralysis. Right‐​to‐​work laws are desirable because, although they are partial, they are still pareto‐​optimal: By limiting the powers of union bosses, they leave employers no worse off and workers somewhat better off.

Once again, there are disagreements about policy among libertarians who share very similar economic and philosophical principles.