Notes on a Theory…

Thoughts on politics, law, & social science

Archive for July 2012

Economic Rights Must Be Contested

with 7 comments

Mike Konczal has a good post asking What Policy Agenda Follows From “You Didn’t Build That?” It’s well worth reading (and not just for all the great FDR quotes), and I agree wholeheartedly with the rejection of the idea that economic rights are pre-political and natural.  But I have one objection.

And so “liberty” for one comes at an expense of “liberty” for another. Since there’s no neutral way for the government to set these rules, certainly no abstraction like “economic liberty” to guide the path, the question over social control of property, as Leonard Trelawny Hobhouse put it, is “not of increasing or diminishing, but of reorganizing, restraints.” The issue here isn’t that everything is up for grabs – it’s that there is no “neutral,” and appealing to higher abstractions as “rights” or “ownership” don’t get you anywhere.

Now it’s true that there’s no neutral way to settle these questions.  But politics is rarely about neutral terms.  Liberty, like freedom and equality, are what Gallie called inherently contested concepts (pdf).  They are terms that have a evaluative dimension, that have a relatively uncontested core, but extensions will be disputed.  As Lakoff has long argued, it won’t do to abandon terms that are contested.  That just allows conservatives to advance their own vision of these terms.  It strikes me that conservatives have long since figured out that they can make anything contested simply by contesting it, which is a central way they seek to change the boundaries of the possible.

Because the New Deal ultimately rested on the Constitutional foundation of the Commerce Clause, it’s easy to forget that activists didn’t.  They relied instead on a contested version of economic freedom,  drawing on the Thirteenth Amendment, barring slavery and involuntary servitude, to justify labor rights and government efforts to manage the economy to ensure it met human needs and human dignity.* (By the way, Balkin and Levinson have a new paper on The Dangerous Thirteenth Amendment I haven’t had a chance to check out but looks very interesting).

The conservative view of liberty is one of  domination–that employers should be free to dominate their employees, that the ability of capital to organize in corporations is a fundamental right but the ability of workers to organize in unions violates the rights of employers, that the right of the rich to further enrich themselves at the expense of workers inheres in the right of property while the right of workers to make enough to live is “socialism.”  Oligarchy unchecked by government or free association by workers.

Personally, I don’t believe that is an attractive view. And I don’t think most Americans think so either. But they rarely hear it put in such stark terms.  Bu they will only hear it if we engage in vigorous contestation. Avoiding contestable terms gets in the way of that, as does allowing the limits of the politics of the day to narrow our own conversations about what is to be done.

*The same thing happened during the Civil Rights Movement, where activists drew on notions of freedom and equality (not just the latter) and the Equal Protection Clause (which clearly requires government to affirmatively use law to protect people, not simply refrain from discriminating itself) but the DOJ and ultimately the Supreme Court relied on the Commerce Clause.

Written by David Kaib

July 25, 2012 at 12:11 am

Either Elections are Important or They’re Not: Unions and the Democratic Party

with 3 comments

[Updated below]

Recently, the Culinary Local 226 in Las Vegas made a big splash by announcing that it was not going to make electoral campaigns a priority.  Local 226 played a major role in helping secure a victory for candidate Obama in the Democratic primary, as well as the 2008 election and Senate majority leader Harry Reid’s tough 2010 re-election campaign.  The union didn’t point to the disappointment, widely shared in the union movement, with what Democrats at the national level have delivered for labor, but rather to the pressing needs of the local and its members at this moment.

With all their contracts with local unionized casinos expired and a bitter organizing fight underway with the non-union Station Casinos chain, Taylor said that the group is at capacity.

“We really divide between two things, which[are] our contracts and Stations,” Taylor told National Journal.  “I’ve told everybody if we don’t have those settled, or some of them settled, we’re not going to lie to you and tell you we’re going to be involved politically.”

Taylor isn’t bashful about wanting some help from the same Democratic politicians the union has helped elect over the years. But such assistance has not been forthcoming. “Sometimes the Democrats wonder why workers don’t rally around them. It’s because they really don’t rally around workers in time of need,” he said. [my italics]

David Dayen explains why this is such a big deal.

Very few unions could pull off this kind of power play. But the Culinary Union in Nevada, the virtual home of the hospitality industry, can. They have a large membership base of cooks and housekeepers and hotel personnel in the main population centers of the state. And they have the ability to mobilize those voters, particularly the Latino voters who make up 45% of their membership, as we saw in the re-election of Harry Reid in 2010. As I noted, there are key downballot races in Nevada, in addition to the Presidential contest. Shelley Berkley and Dean Heller are in a neck-and-neck race for the US Senate. And at least one and possibly two House seats are in play.

Erik Loomis, a well-informed and generally sympathetic commentator on labor issues, questions the reason offered by the union, suggesting “the more likely reason is because Democrats rely on labor to win elections and then do very little to press labor’s agenda.”  It’s not clear why Erik thinks this, and while I agree it’s probably a part of it, it seems unlikely Local 226 would be making this move solely for that reason, or more to the point, that they would be able to defend the choice on this basis alone.  At the very least, I think it’s important to take seriously the reasons being offered, even if in the end you reject them as a possible explanation (which I don’t).

Stories about this development have generally been framed around two questions.  First, is this just a bluff?  Implicitly the answer is often yes given the stakes of the election (despite the fact that these stakes are themselves contested).  And second, is this the right strategic move for the union?

What I find strange, not in the sense that it’s unusual but rather that it’s so taken for granted, is that very few people are talking about the strategic choices of the Democratic officials who Local 226 is criticizing.
If Democrats think that the active engagement of Local 226 is so important, there is an easy solution–put pressure on Station Casinos and the unionized shops, which is what the union has been asking for all along.  Help the union resolve its disputes fairly, thereby freeing up resources for other things.  It’s simply impossible to argue with a straight face that the election and the Culinary Union’s participation are so important that the union must shift resources away from a major fight but it’s not important enough for top Democratic officials to lift a finger.

Don’t like it? Then pressure Dems and Station Casinos.

From the article linked above:

Taylor said he wants to wrap up existing contract negotiations before the elections and, more ambitiously, make inroads in a years-long fight to unionize Station Casinos, itself a powerful player in Nevada politics. Asked if he has sought help from Reid in that fight, Taylor paused, blinked twice and said, “You just have to follow the money.”

Data from the Center for Responsive Politics show that PACs and people tied to Station Casinos have been among the top 10 donors to Reid in every election cycle since 2002, with more than $74,000 given this cycle alone. Station has been a major contributor to both sides of the political aisle.

Reid failed (and continues to fail) to help by supporting them – that’s the complaint, as the quote above clearly shows. That Reid took money from Station Casinos is offered as an explanation for his inaction, not the grievance.

As Julius Getman explains, HERE (the predecessor union to UNITE HERE) determined in the late 1980s that the NLRB process was too rigged against unions to be worth pursuing.  Instead, they sought to find ways around it—specifically, the comprehensive campaign.  Unions seek to pressure employers to agree to a card check process and to ensure neutrality in order to produce a fair process.  Numerous pressure points can be pursued, but one key one is political pressure—including building alliances with key politicos who in turn can pressure employers.  Local 226 was the testing ground for this approach, and it has seen significant growth outside of the NLRB process at a time when union density has been declining around the country. (More background from Dorothee Benz on all this here).

Getting politicians to put pressure on corporations to bargain in good faith, remain neutral, etc., is standard operating procedure in a comprehensive campaign. If they won the campaign, it would energize their workers and free up resources. (I suspect it would do most of these things even if they got the help and it didn’t end the campaign).

It is certainly in the Democrats interests to do this. So it strikes me that they ought to.

So why is no one talking about that?  Why are working people supposed to sacrifice so much and top-level officials so little? Even if you think they are making the wrong choice (and hopefully you would take some time to learn about what has going on in Las Vegas before attacking someone you want to be your ally) why not also ask something of politicians and party officials who supposedly represent us?

I’ll have some thoughts about possible answers to these questions and what it means for our politics more generally later.

*I’m leaving aside other questions like the relative importance of electoral politics or working within the Democratic Party versus third parties. My argument here assumes that Democrats winning elections is the central goal.  Let’s leave those other questions for another time.

[Update 7-24-12]

Mike Elk notes that the Association of Western Pulp and Paper Workers (AWPPW) will picket an Obama fundraiser over the Administration’s push for the Trans-Pacific Partnership (TPP) free-trade agreement.

“I was at a meeting recently with the Secretary-Treasurer of the AFL-CIO, Liz Shuler. People within the labor movement are not at all happy with Obama on the trade agreements,” says [AWPPW Vice President Greg] Pallesen. “They feel the election is so close that if they beat him up on it, it will get Romney elected. That may very well be. However, as a union representing its members who are fed up with these attacks, we got to represent our members. Our members have made it clear they are sick and tired of the trade agreements. It’s our number one job killer.”

Again, labor is supposed to change but not public officials.  The rationale for so-called “free trade agreements” used  to be that they would provide economic benefits.  Now you often see people claim that they won’t actually cost jobs, which isn’t much an endorsement.  More often, the claim is that low cost goods make up for lost jobs, but in the midst of the Great Recession and close to a decade of wage stagnation this is highly questionable.  But even if AWPPW were inclined to keep quiet, it would be more difficult for them to go to their members and try to mobilize them to support Obama and the Democrats come election time.

If union help is important, why make it harder to provide?

Written by David Kaib

July 22, 2012 at 11:32 am

Bad Diagnoses, Wrong Remedy : Campaign Finance Edition

with 8 comments

Given all the attention to the DISCLOSE Act, which seeks to respond to the problem of money in politics by ensuring disclosure, which seems to me to miss the point, I thought I’d quote Lawrence Lessig, who’s done the most to clearly articulate what’s wrong with our political system.  He was responding to the claim that we need a constitutional amendment to authority limits on campaign spending.  He argues this focuses on the wrong side of the scale.

But at some point, Congress has got to muster the courage to say what every sane reformer recognizes: that we won’t solve the problem of “big money donors” until Congress begins to say yes. Not just finance limits, but also finance support. Not just ways to restrict, but also ways to enable.

The framers of our Constitution gave us a republic. They meant by that a “representative democracy.” Or as Federalist No. 52 put it, a Congress “dependent upon the People alone.”

Despite the founders’ intentions, however, Congress has evolved from a dependency “upon the people,” to an increasing dependency upon the funders. Members spend 30 percent to 70 percent of their time raising money to stay in Congress, or to get their party back in power. Less than 1 percent of Americans give more than $200 in a political campaign. No more than .05 percent give the maximum in any Congressional campaign. A career focused on the 1 percent — or, worse, the .05 percent — will never earn them the confidence of the 99 percent. Indeed, according to a recent New York Times/CBS News poll, so far it hasn’t earned them the confidence of any more than 9 percent.

So long as elections cost money, we won’t end Congress’s dependence on its funders. But we can change it. We can make “the funders” “the people.” Following Arizona, Maine and Connecticut, we could adopt a system of small-dollar public funding for Congress.

Neither limits or disclosure will solve this problem.  There’s something to be said for trying many things, but if we have bad diagnoses for the problem, we won’t find the right remedy.  Framing matters.

Written by David Kaib

July 17, 2012 at 11:25 pm

Workplace Coercion and the Public / Private Divide

with 2 comments

If you haven’t been following it I can’t recommend enough catching up with a series of posts that began with Chris Bertram, Corey Robin and Alex Gourevitch (BRG) launching a broadside against the Bleeding Heart Libertarians (BHL) concerning coercion in the workplace. I described the larger conversation as “the best thing on the internet”.  The central point is that the workplace is an arena of considerable coercion where employees have vastly fewer rights than they do in relation to the government, or for that matter, then most people probably realize.

Libertarianism is a philosophy of individual freedom. Or so its adherents claim. But with their single-minded defense of the rights of property and contract, libertarians cannot come to grips with the systemic denial of freedom in private regimes of power, particularly the workplace. When they do try to address that unfreedom, as a group of academic libertarians calling themselves “Bleeding Heart Libertarians” have done in recent months, they wind up traveling down one of two paths: Either they give up their exclusive focus on the state and become something like garden-variety liberals or they reveal that they are not the defenders of freedom they claim to be.

I’m less interested in discussing the critique of the BHL than I am in the issue of workplace coercion and the public  / private distinction that makes it difficult to see this in the first place.

By public / private distinction, I mean a deeply ingrained cultural narrative that opposes the private sphere / the natural world / the market / voluntariness  vs. the public sphere / interference / government / coercion.  Margaret Somers argues this idea has its origins in Locke, who was seeking to create a way of restraining the monarchy by elevating a pre-political, fundamental private sphere that could not be legitimately interfered with, since the primary threat of the time was a newly empowered absolutist monarch.  Somers argues these ideas distinguish what is considered reasonable from what is not, operating not as a premise in logical arguments but rather structuring how people perceive the world in the first place.

Ultimately, this doesn’t mean that people don’t know that the workplace is coercive, it means that this experience is often not politicized–in the sense that it’s experienced as a problem about individual companies or managers.  Or from a third-party stance, it is not something that poses a problem–for example the presumption that such coercion must have some economic rationale (and the implicit notion that profit-making would thereby justify it). Something becomes politicized when we tie our own fate to others, when we see this as about ‘work’, for example. as opposed to ‘this job’.

The difficulty here is that while libertarians tend to be the loudest critics of laws and regulations, it’s by no means limited to them. Neoliberals are also skeptical of labor regulations, and treat markets as presumptively legitimate. And conservatives who are openly hostile to civil libertarianism often take such positions as well.

This is the conversation the left needs to have, and it’s one we haven’t, in part because the right has been dominating the conversation, dictating the questions to be asked, etc.  In the end, the various answers to the question posed at the outset–can bosses demand that their employees to have sex with them or be fired–have been wanting.  Just raising these questions helps makes the underlying assumptions less obscure.  My sense is that they only hold their power because we don’t typically attend to them.

It would also be helpful if we were to raise questions about terms like the private sector, intervention, or market, all of which do more to obscure than to reveal.  But that is a subject for another post.

(Corey Robin has been rounding up the various responses to the original post. The latest one is here).

Written by David Kaib

July 13, 2012 at 11:44 pm

Economic Myths and Other Possible Worlds

leave a comment »

Harold Meyerson has a really good piece on “The Failures of Shareholder Capitalism.” I like this for a number of reasons, including that the idea that having socialized ownership (by numerous individuals or more often, institutions) isn’t really the same as 1) the way the economic system was ordered when the economy was far healthier, i.e. in the 50s and 60s, or 2) as the idea of capitalism, which focuses more on individual ownership. (Ok, that bit about stock holding as a form of socialism is my gloss, but it’s a good point whether it gets that label or not).

The whole thing is great but this is especially important.

Still, the myth of shareholder power, and especially individual shareholder power, is continually attested to by corporate managers and their apologists because it legitimates the current system of corporate governance and the division of corporate riches. CEOs don’t acknowledge that the system is rigged in their favor. But the rise of shareholder capitalism — the doctrine that has dominated corporate conduct since the early ’80s, as corporations’ raison d’etre has been reduced to maximizing shareholder value — has been a boon to top executives. They have been able to tie their compensation packages to rising share value (and untie it when share value falls).

The transformation of the shareholder from an individual with a long-term interest in the company to an institutional short-timer with myriad other investments raises a deeper question about corporate governance: Why is it that shareholders, at least theoretically, are entrusted with electing corporate boards? Why aren’t more long-term stakeholders with a genuine interest in the company’s success — say, their employees — also represented on corporate boards, as they are required to be in Germany? German corporations are thriving, even though (or more likely, because) their CEOs are paid radically less than ours and their workers command a higher share of gross domestic product than ours.

I’ve long thought we do ourselves a disservice by simply adopting terms developed long ago to describe very different economies that today serve mostly to legitimate the rule of the powerful and which are not generally taken very seriously by their proponents.  (James Galbraith makes this point is his excellent book The Predator State: How Conservatives Abandoned the Free Market and Why Liberals Should Too.)  The legal realists* did this once before in the lead up to and wake of the Great Depression.  In the aftermath of the Great Recession, brought on by a second resurgence of market fundamentalism, we need to recover that past and extend it.

*Agnostic Liberal had a good post the other day discussing this that’s also worth a read.

Politics isn’t Hard: Robert Reich on Regressives

with 3 comments

Politics isn’t hard. Here Robert Reich, as he often does, boils things down to their essence.

One of the best parts of this is that Reich doesn’t let conservatives define themselves, or attack them for failing to live up to supposed conservative principles. He connects our history, or the better parts of it, with our future. He offers a narrative of American and conservatives that makes sense of where we are and were we need to go.

I only have one objection. Number four is treating corporations as people and money as speech under the First Amendment, “thereby inundating our democracy with campaign money from billionaires and big corporations and Wall Street so the rest of us cannot be heard”. I’ve objected to this formulation before. First, it places all the responsibility on the Supreme Court for a situation also caused by Congress, campaign consultants, the media and candidates. Second, it wrongly suggests the solution is “less speech” not increasing the opportunity for the excluded voices to be heard.* And third it suggests that the only way to address it is a constitutional amendment.

I’d say the issue here is a system that is corrupt.  It forces candidates to spend all their time fundraising while those with the most money are guaranteed to be heard by public officials while the issues the rest of us care about are kept off the agenda. People-powered campaigns are the first step to solving this problem as well as demanding that corporations be transparent about their spending (both campaign and lobbying, which is left out of the money=speech framework) and require shareholders to approve them. We could also work to ensure institutional investors are committed to voting no (and to limiting CEO pay, golden parachutes and bonuses).

*As long as there is no trigger mechanism where candidates get more funding when the other side spends more, this poses no problem as far as the Court is concerned.

Written by David Kaib

July 12, 2012 at 12:16 pm

Arbitrary Authority, Punishment and the Production of Violence

leave a comment »

Discussing the recent incident at McCarren Pool, I think Ta-Nehisi Coates makes a common mistake when it comes to the relationship between violence and authority.

There was some shock and dismay last week when I wrote that I was rather unsurprised by the violence that broke out at McCarren Pool, but was in fact more surprised that the NYPD hadn’t put in place a more forceful police presence on opening day. I argued yesterday that violence tends to follow whenever you have masses of people in tight cities and no authority with teeth.


Nevertheless, I was slightly taken aback by the fact that many of us seem wholly unfamiliar with this sort of violence–directed at an authority figure, and undertaken by a group of teenagers.

I don’t know what was going through those kids minds. But I know that I used to be one of them.  When I was 14 years old my English teacher yelled at me in front of the class. I responded by threatening him. I was subsequently arrested for assault, suspended and almost thrown out school. (You can read the long version here.) Like most of the boys I went to school with, I was obsessed with rather hollow notions of “respect” and saving face. I was not–by any measure–a tough guy. But this made things worse. At any rate, I deserved everything I got. You can’t go around threatening teachers. Or people.

My italics.

But I don’t think TNC’s own story is about what happens when there’s “no authority with teeth.” It’s about how people respond to authority.

The “masses of people in tight cities” in the US are often underserved by existing institutions, socially isolated from the rest of society, denied opportunity, discriminated against, responded to with punishment in ways others are not, and subject to arbitrary searches and arrests. This generates anger, resentment and rage, which then tends to blow when it gets too strong or those individuals find themselves outside the “authority” of those with power.

Prison psychologist James Gilligan puts it this way:

I have been struck by the frequency with which I received the same answer when I asked prisoners, or mental patients, why they assaulted or even killed someone. Time after time, they would reply “because he disrespected me” or “he disrespected my visitor [or wife, mother, sister, girl-friend, daughter, etc.].” In fact, they used that phrase so often that they abbreviated it into the slang phrase, “He dis’ed me.”


On one occasion, the officers in a prison had become involved in a running battle with a prisoner in which he would assault them and they would punish him. The more they punished him the more violent he became, and the more violent he became the more they punished him. They placed him in solitary confinement, deprived him of even the last few privileges and possessions prison inmate has; there was no further punishment to which they could subject him without becoming subject to punishment themselves, and yet he continued to assault them whenever they opened his door. At that point they gave up and asked me to see if I could help them understand what was going on so they could extricate themselves from a situation that was only harming both parties to the conflict. (Incidentally, one can observe this same mutually self-defeating vicious cycle on a national and international scale and throughout history, both in this country and elsewhere, as in Chechnya, Israel-Palestine, and Iraq; and historically, as in the punitive peace settlement following the First World War that strengthened the revanchist political movements that culminated in the Second World War—to choose just a few among many possible examples).

When I saw this prisoner I asked him, “What do you want so badly that you are willing to give up everything else in order to get it?” It seemed to me that this was exactly what he was doing. In response, this man, who was usually so inarticulate that it was difficult to get a clear answer to any question, astonished me by standing up tall, looking me in the eye, and replying with perfect clarity and a kind of simple eloquence: “Pride. Dignity. Self-esteem.” And then, speaking more in his usual manner, he added “And I’ll kill every motherfucker in that cell block if I have to in order to get it.” He went on to describe how the officers were, he felt, attempting to strip away his last shred of dignity and self-esteem by disrespecting him, and said, “I still have my pride and I won’t let them take that away from me. If you ain’t got pride, you got nothin’.” He made it clear to me that he would die before he would humble himself to the officers by submitting to their demands.

Gilligan’s point is that when authority robs individuals of their dignity, either by putting them in a position where they cannot maintain it, where others will rob them of it, or where those operating under color of law will do the robbing, people have a tendency to lash out aggressively to try to reassert that dignity. (I should really say men, because there is a really important role for gender here, but that’s a subject for another post).

Studies of why people (this time I really mean people) obey the law show consistently that a central issue is whether it is seen as legitimate, specifically, whether procedures are felt as fair. Fair procedures might be extended to those who are considered fully human by those in power (although this group is shrinking) but as Margaret Somers argues, rights are not generally extended or protected to those who are seen as less than fully human.

Neoliberalism is sometimes mistakenly seen as simply about markets, but it also includes a significant emphasis on punishment.  Whether it means punishing through the criminal justice system, the social welfare system, or the national security system assaults people’s sense of dignity, producing the very behaviors it claims to be fighting.  Robert Pape’s work on suicide terrorism, showing it to be caused by occupations by countries associated with a different religion than that of the occupied is but one example.

The problem then, is not the lack of authority, but how authority is wielded.

(None of this is to say TNC doesn’t have a lot to offer on these dynamics.  See for example this earlier post he linked to.)

Written by David Kaib

July 11, 2012 at 12:10 pm

My Hope for Independence Day

with 2 comments

My hope for Independence Day is that we can start with the small step of calling this day Independence Day, not Fourth of July. It strikes me how odd it is to refer to the day by its date. I suspect it’s partly because of its political content – like so much political language, this seems to be an example of “blunt[ing] the too sharply pointed.”

From there, I hope that we can reconnect with the meaning of today and other holidays – like Martin Luther King Day and Labor Day. Perhaps we might also use this day as a chance to think about the ways we have yet to root out royalism / aristocracy in our culture – whether that be the way we treat presidents, senators, celebrities, or the rich.  If we get past the fireworks and barbecue, we often just lionize the people at the top of the American Revolution (who did not make the Revolution, they were only a part of it.)  It’s also worth remembering that those who made the Revolution were putting principle over their loyalty to the country—those who chose the opposite path were not called patriots, they were called loyalists.

It’s not just about our country, it’s about each one of us and about people around the globe – who have every right to self-determination that our political ancestors had.  Merely using the name Independence Day rather than 4th of July is a small step – thinking and talking about what independence is about today, for all of us, is the key.

The authors of the U.S. Constitution, which arrived some years after the day we celebrate as our nation’s birthday, considered their document a living one (which is not the same as indeterminate), one that would safeguard freedom while providing plenty of room for change in future circumstances. They, like those who made the Revolution, knew that the only source of legitimate power was the people, and that government was made for the people, not the other way around. This is, incidentally, precisely why they were wrong to exclude many people from the protections of the Constitution, something we have made great progress on in the interim despite the great deal of work that remains to be done.

In other words, every generation carries the heavy responsibility of founding America anew. Let that sink in.

And today we might also remember that independence, like freedom, doesn’t exist if it can be taken away by your employer or some other non-governmental authority.

Or perhaps maybe (it’s a small thing, I know), I could go to the grocery store and not have to see magazines detailing the lives of British princes.

Happy Independence Day.

Posted slightly early due to my own lack of independence from the energy oligopoly. Variations on this rumination have appeared elsewhere in previous years.

Written by David Kaib

July 3, 2012 at 12:43 pm

%d bloggers like this: