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Choosing Who You Negotiate With

David Brooks writes:

Most important, public sector unions help choose those they negotiate with. Through gigantic campaign contributions and overall clout, they have enormous influence over who gets elected to bargain with them, especially in state and local races.

(Emphasis supplied.) With regard to corporations that do business with governments, David Brooks has not only not expressed similar concern, he has shown disdain for such concerns.

Indeed, if Brooks REALLY believed what he wrote, he would be a staunch opponent of privatization. Privatization creates even greater risks of creating situations where entities are "choosing those they negotiate with." More . . .

Remember what Citizens United reasoned:

[W]e now conclude that independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption. [. . . T]he Court in NRWC did say there is a “sufficient” governmental interest in “ensur[ing] that substantial aggregations of wealth amassed” by corporations would not “be used to incur political debts from legislators who are aided by the contributions.” [. . .] When Buckley identified a sufficiently important governmental interest in preventing corruption or the appearance of corruption, that interest was limited to quid pro quo corruption. [. . .] The fact that speakers may have influence over or access to elected officials does not mean that these officials are corrupt:

“Favoritism and influence are not . . . avoidable in representative politics. It is in the nature of an elected representative to favor certain policies, and, by necessary corollary, to favor the voters and contributors who support those policies. It is well understood that a substantial and legitimate reason, if not the only reason, to cast a vote for, or to make a contribution to, one candidate over another is that the candidate will respond by producing those political outcomes the supporter favors. Democracy is premised on responsiveness.” McConnell , 540 U. S., at 297 (opinion of Kennedy , J.).

Reliance on a “generic favoritism or influence theory . . . is at odds with standard First Amendment analyses because it is unbounded and susceptible to no limiting principle.” Id. , at 296. The appearance of influence or access, furthermore, will not cause the electorate to lose faith in our democracy. By definition, an independent expenditure is political speech presented to the electorate that is not coordinated with a candidate. See Buckley , supra , at 46. The fact that a corporation, or any other speaker, is willing to spend money to try to persuade voters presupposes that the people have the ultimate influence over elected officials. This is inconsistent with any suggestion that the electorate will refuse “ ‘to take part in democratic governance’ ” because of additional political speech made by a corporation or any other speaker. McConnell , supra , at 144 (quoting Nixon v. Shrink Missouri Government PAC , 528 U. S. 377, 390 (2000) ).

[. . .] Ingratiation and access, in any event, are not corruption. [. . .] Here Congress has created categorical bans on speech that are asymmetrical to preventing quid pro quo corruption.

I imagine Brooks would argue that public sector unions are engaged in quid pro quos with elected officials. But so too are private contractors who contract with the government. If public sector unions raise the specter of undue influence because they negotiate directly with the government, then so to must private contractors.

There is another aspect of this matter that bears consideration- to what degree does a ban on collective bargaining impinge on the First Amendment rights of union members? It is true that it has long been settled law that the right to collectively bargain is not protected by the Constitution. However, that was before Citizens United. After all, before Citizens United, the restrictions overturned in that case were also long held to be constitutional. If one honestly and consistently applied the logic of Citizens United, then a compelling argument can be made that prohibitions against collective bargaining violate the First Amendment.

In a later post, I will explore the strength of such an argument.

Speaking for me only

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  • Display: Sort:
    I keep wondering why (5.00 / 2) (#3)
    by inclusiveheart on Tue Feb 22, 2011 at 09:21:48 AM EST
    people don't just abandon regulated PACs and the like and form corporations.  Why don't the unions just become corporations?  Seems like they have the least regulated speech now. Maybe I'm wrong, but that's what it seems like.

    its spreading (5.00 / 1) (#4)
    by Capt Howdy on Tue Feb 22, 2011 at 09:27:00 AM EST
    The clash between Republicans and unions that caught fire in Wisconsin last week escalated Monday: Labor leaders planned to take their protests to dozens of other capitals and Democrats in a second state considered a walkout to stall bills that would limit union prowe.

    Indiana is next

    I was watching the last episode (5.00 / 1) (#11)
    by Militarytracy on Tue Feb 22, 2011 at 10:26:26 AM EST
    of Maher that Ruffian pointed me to and listening to that freaky Michelle Caruso Cabrera spew.  She is obviously a winger, I'm not at all familiar with her so don't for certain what she supposedly represents.  She was blathering on about how we have agreed to live in a Capitalist Democracy, we have traded getting to have rights for being poor.  She really said something very much like that.  Where do these people get their facts?  When practicing Capitalism you contend with something called the invisible hand, and I was taught that labor and labor issues are invisible hand issues just like risk and increased liquidity due to nominal wealth and all that good stuff.  For wingers though they have special rules that are all about protectionism AND THAT ISN'T CAPITALISM AND FREE MARKETS Ms. Caruso Cabrera....whoever you are.

    Parent
    looks like (none / 0) (#13)
    by Capt Howdy on Tue Feb 22, 2011 at 10:33:32 AM EST
    Beck was right.  it really is egypt on the great lakes.

    Parent
    Nope. You well know that Cairo (5.00 / 2) (#50)
    by Towanda on Tue Feb 22, 2011 at 08:20:49 PM EST
    is in Illinois, far south of the Great Lakes, in the border area called "Little Egypt."

    That would make Wisconsin the equivalent of . . . Iran?

    Parent

    If it is (none / 0) (#15)
    by Militarytracy on Tue Feb 22, 2011 at 10:39:48 AM EST
    Does he understand why?  I can't watch the man, it makes me want to hurt my television.  And that would just give my husband an excuse to get a bigger one.  That's just lose/lose.  Is he saying we are on the brink of all going Sharia law on him?

    Parent
    We've already had one person (5.00 / 1) (#21)
    by Harry Saxon on Tue Feb 22, 2011 at 11:05:36 AM EST
    echo, unwittingly or not, Michelle Bachmans' comparison to the anti-austerity riots in Greece last year on another thread here.

    People see what they want to see, not what's in front of their noses if it clashes with their ideology.

    Without the "Red Menace", many wingnuts are willing to see parallels where they don't exist, even if it means casting the governor of WI as a Mubarik-like figure.

    Go figure.

    Parent

    Does he understand why? (5.00 / 1) (#24)
    by Capt Howdy on Tue Feb 22, 2011 at 11:27:35 AM EST
    probably.  not that he would ever admit it.

    Parent
    Supporting demonstrations (5.00 / 2) (#18)
    by christinep on Tue Feb 22, 2011 at 10:54:47 AM EST
    Please note that a number of demonstrations have been scheduled today and this week in different cities in support of the public workers in Wisconsin.  Here, in DENVER: A NOON RALLY is scheduled at the Capitol to be in solidarity.

    The Daily Show seems to be (5.00 / 3) (#22)
    by KeysDan on Tue Feb 22, 2011 at 11:09:28 AM EST
    on the way to becoming the FOX FUN SHOW--comedy that is fair and balanced in the same manner as news.  Jon Stewart's piece on the Wisconsin situation equated the gun-packing, anti-Obama everything Republican Tea Party demonstrations with the workers petitioning the government for the specific grievance of eliminating their right to collective bargaining for employment conditions, Their concerns earned them Stewart's label of "bizarro tea party."  

    He ridiculed likening the Wisconsin protesters to Egypt, but if he wanted a joke he could have mentioned that it was said by Walker's big supporter, Paul Ryan (R.Wi), who must be thinking the governor is like Mubarak, a dictator.   Stewart is losing his edge in political parody of which he was once a master.

    I fear he's succumbing to the lure of being one of (5.00 / 1) (#47)
    by jawbone on Tue Feb 22, 2011 at 02:29:43 PM EST
    the Uberwealthy.  Also, when he spoke with Terry Gross at a live interview in NYC (9/29/10), he made some markedly conservative sounding remarks about his personal stands and beliefs, also about his big DC rally. Very...Obama-like.

    I've been looking at him in that light ever since.

    The audio is at the link, but the transcriptions are sadly just selections ("highloights").

    This was rebroadcast on Dec. 28, 2010 and a re-edited version was broadcast on October 22, 2010. Lamentably, same highlights appear in transcription.

    Parent

    Yes (none / 0) (#57)
    by sj on Wed Feb 23, 2011 at 09:48:12 AM EST
    When he went on the road to promote his rally I was rather stunned that it was all about civility.  No righteous anger there for sure.  I've stopped watching him mostly as a matter of timing, and I don't enjoy/appreciate it enough to DVR.  

    He has usually actually read whatever book is being promoted (when there IS one) and he has some good moments in general, but I can usually get to those from a comment somewhere on the web, where I don't have to watch the entire show.

    Parent

    Daily Show is in trouble in Wisconsin (none / 0) (#51)
    by Towanda on Tue Feb 22, 2011 at 08:23:41 PM EST
    for animal abuse.  For its piece last night, the Daily Show stupidly brought a camel to a Madison covered with snow, slush, and ice.  The camel fell, and badly, although hope it that it's not badly hurt.

    But in bleeding-heart liberal Madison, the locals are horrified that an animal was so abused. . . .

    Parent

    "As God as my witness (5.00 / 3) (#55)
    by Rojas on Wed Feb 23, 2011 at 01:34:03 AM EST
    I thought turkeys could fly"
    WKRP Turkey Drop

    Parent
    Okay I shouldn't laugh (5.00 / 1) (#56)
    by sj on Wed Feb 23, 2011 at 09:39:44 AM EST
    because I'm disturbed as all get out by the camel.

    Parent
    Best. Episode. Ever. (none / 0) (#58)
    by Towanda on Wed Feb 23, 2011 at 10:56:24 AM EST
    The ripoff of the coverage of the crash of the Hindenburg cracked me up then -- and still do.  Thanks!

    Parent
    Right-wing viewpoints are sometimes ... (none / 0) (#1)
    by Yes2Truth on Tue Feb 22, 2011 at 09:01:40 AM EST

    interesting, but liberal/left views are far more
    consistent with a robust democracy.  

    Let's hear more about those views, and let Mr. Brooks and his ilk blow smoke to their choir.

    This is not a criticism of your very fine post.

    really? (none / 0) (#10)
    by bocajeff on Tue Feb 22, 2011 at 10:13:08 AM EST
    Where are the Wisconsin legislators? Not taking part in robust Democracy but running away from it.

    While I don't agree with the merits of Walker's proposal I find it abhorent that the legislators fled on the taxpayer dime, and teachers fled their jobs on the taxpayer dime, all in the name of democracy.

    HOw is this participatory of robust democracy

    Parent

    And I guess you cry tears (5.00 / 4) (#12)
    by lilburro on Tue Feb 22, 2011 at 10:30:37 AM EST
    when a Senator or politician leaves office and misses votes while running for President?

    And again the point must be made, the public does not own teachers.

    Parent

    Oh, I think the legislators are (5.00 / 6) (#14)
    by Anne on Tue Feb 22, 2011 at 10:38:04 AM EST
    participating quite robustly; they are taking the action necessary to allow for more discussion of the issues, more education of the public about what's at stake - taking the time, in other words, that the Republicans wanted to deny the people, who, I believe, have a right to weigh in on what's happening in their legislature, no?

    As for the teachers, they used vacation or sick time, I believe, to participate in the democracy that the Republican legislators were poised to deny all of the people of Wisconsin.  Further, teachers - unless they are working in state schools, are not state employees, but are employed by the municipalities in which they teach.  

    And I think they are entitled to use their leave time as they see fit, just as anyone who has paid time off is; are you suggesting that the employer - any employer - should get to decide whether what someone wants to do on his or her day off is worthy of the time value of money allocated to it?

    Really?

    And let's not forget that the teachers are also taxpayers, and they have as much right to be heard as any other taxpayer.  

    It's funny how the meaning of "participate" changes depending on whether someone sees the actions of others as helping or hurting the agenda one favors or opposes.  You want the legislators back in Madison so the Republican agenda of breaking the unions can be furthered; I want them to hang in there to allow the people to participate - which may or may not eventually end with the GOP getting its way, but the fight will have been fairer for the participation either way.


    Parent

    Yea Anne (none / 0) (#17)
    by christinep on Tue Feb 22, 2011 at 10:51:10 AM EST
    Well said. And as for Brooks: It has nothing to do with philosophy for him...its that when the crunch comes, he stands for his patron The Republicans because that is who he has always been.

    Parent
    They will be joined (none / 0) (#37)
    by jbindc on Tue Feb 22, 2011 at 12:52:20 PM EST
    by Indiana Democrats, who are reportedly fleeing the state to avoid voting on an anti-union bill.

    Parent
    They are taking part (5.00 / 2) (#19)
    by Big Tent Democrat on Tue Feb 22, 2011 at 10:59:52 AM EST
    in the same sense that a US Senator filibustering takes part.

    Parent
    There is more to democracy than voting in (5.00 / 3) (#20)
    by ruffian on Tue Feb 22, 2011 at 11:03:26 AM EST
    a senate chamber. You may not like this form of participation, but it is participation.

    Parent
    Yes, and probably working harder (5.00 / 1) (#23)
    by KeysDan on Tue Feb 22, 2011 at 11:17:49 AM EST
    than every before.

    Parent
    Take it up with Abe Lincoln--he used same tactic (5.00 / 1) (#49)
    by jawbone on Tue Feb 22, 2011 at 03:22:26 PM EST
    try to protect the state bank of Illinois. Read the post, brief and to the point.

    Pretty long history of using this tactic.

    Parent

    I thought the discussion was over (none / 0) (#16)
    by mmc9431 on Tue Feb 22, 2011 at 10:40:17 AM EST
    And what would you have suggested as an alternative? Should they just have rolled over and played dead? The governor has stated, he has no intentions of backing off.

    There are times when the only option left is civil disobedience. As we begin our march back to the glory days of the robber barons, civil discourse is going to become very common across the country.

    Parent

    This is a good point. n/t (none / 0) (#2)
    by lilburro on Tue Feb 22, 2011 at 09:21:09 AM EST


    Your links (none / 0) (#6)
    by Big Tent Democrat on Tue Feb 22, 2011 at 09:41:03 AM EST
    What are they?

    I deleted a comment (none / 0) (#7)
    by Big Tent Democrat on Tue Feb 22, 2011 at 09:42:20 AM EST
    that contained spam links. I am not sure if the commenter intended to include the links.

    Parent
    they did (none / 0) (#9)
    by Capt Howdy on Tue Feb 22, 2011 at 09:52:13 AM EST
    they are also in the pot thread

    Parent
    Well apparently they did not have all that much (none / 0) (#8)
    by ruffian on Tue Feb 22, 2011 at 09:52:12 AM EST
    influence over who got elected in WI.

    Interesting post tying it all together with the CU case.

    Union town rejected Walker (none / 0) (#52)
    by Towanda on Tue Feb 22, 2011 at 08:32:14 PM EST
    by a huge margin in the center of unions in Wisconsin:  the city of Milwaukee.

    Walker even lost 2-1 in the entire county of Milwaukee, with many suburbs as well -- the county that knew him all too well as their county exec.  As Maddow detailed last night, Walker just about ruined county services and ran it into a huge budgetary hole with illegal actions for which the county now has to pay.  And coming lawsuits against the country will be even worse, because his neglect of institutions and infrastructure led to several deaths.

    See many election analyses in media there of the data:  Walker won entirely because of the incredibly conservative county to the west, Waukesha, which is one of the most (fourth-most?) conservative counties in the entire country. A county that has had huge population growth owing to "white flighters" fleeing Milwaukee.  That says a lot about his supporters.

    Parent

    What About the Republican Unions ? (none / 0) (#25)
    by ScottW714 on Tue Feb 22, 2011 at 11:31:26 AM EST
    Why are police and fire department unions exempted from the anti-bargaining deal, Brooks ?  Me thinks it's because they use their influence to elect republicans.

    And yet (5.00 / 1) (#26)
    by jbindc on Tue Feb 22, 2011 at 11:33:41 AM EST
    The Question Remains (none / 0) (#27)
    by ScottW714 on Tue Feb 22, 2011 at 12:26:29 PM EST
    Why are they exempted ?

    Good for them, helping out when it doesn't effect them, so rare to see today.  Just another reason why we love firemen.

    I suspect the cops are not there except in their official duties.  If Walker doesn't blink, I suspect the cops are going to have to, at some point, shut it down so the capitol can get back to business.  Just another reason to why we hate cops, just kidding.

    In school I had three field trips to the capital building.  I remember the first time we got to meet, Dreyfus, the governor of Wisconsin throughout the 80's.  I think I was in 4th grade and it was like meeting a movie star.

    Just weird to see that building so full of people.

    Parent

    I wonder if the "exemption" (none / 0) (#42)
    by christinep on Tue Feb 22, 2011 at 01:38:08 PM EST
    wasn't part of the overall divide & conquer theory by Gov. Walker? Since Walker has been shown to have a history of skirmishes in previous attempts to weaken unionization (e.g., as county commissioner), he may have acquired a few basic isolation tactics. Here, the tactic may have been to separate what populaces often consider the "good guys" aka cops & firemen/women from those that could be painted as rapscallion making-too-much-money lucky public employees. I'm thinking that he didn't do his homework about how policemen & firepeople offer some sterling examples recently of how unions should and do hold together.
    One little anecdote: A neighbor of mine is a sheriff's deputy and, in almost all respects, as libertarian & Republican we-pay-too-much-taxes as they come. But, hold on: He is quite active in the police union, and understands and supports the hard bargaining necessitated by the former mayor's cuts to the force...in fact, he is a union organizer who talks with me about tactics on that score. Since the sheriff's deputy & I can't seem to find common ground on most other political issues, his union position and the obvious compartmentalization are fascinating.

    Parent
    It is usually bad policy (5.00 / 1) (#43)
    by jbindc on Tue Feb 22, 2011 at 01:41:10 PM EST
    (and for one's one self preservation) to tick off people that are responsible for your safety.

    Parent
    The question is (none / 0) (#29)
    by jimakaPPJ on Tue Feb 22, 2011 at 12:34:20 PM EST
    this.

    Isn't it the management and not the rank and file?

    Parent

    what makes you say that? (none / 0) (#31)
    by CST on Tue Feb 22, 2011 at 12:40:52 PM EST
    from the article linked, there were 4-5 people quoted, one was given the title "State President of the Professional Fire Fighters of Wisconsin" and all the others were simply titled as "firefighter".

    I don't know why you'd assume it's mostly management, other than that it fits your worldview.

    Parent

    Just my natural (none / 0) (#32)
    by jimakaPPJ on Tue Feb 22, 2011 at 12:45:08 PM EST
    belief that it is mostly the bosses who are Democrats.

    Could be wrong, could be right.

    Parent

    What about (5.00 / 2) (#34)
    by jbindc on Tue Feb 22, 2011 at 12:47:09 PM EST
    the doctors at the protests writing sick notes?  Jut my natural belief thaat most doctors are Republicans....

    Parent
    Why? (none / 0) (#38)
    by jimakaPPJ on Tue Feb 22, 2011 at 01:34:56 PM EST
    How about Doctors working at a state university?

    Doctors without borders

    BTW - You just gotta love the lesson of cheating they're teaching.

    Parent

    So you didn't answer my question (none / 0) (#41)
    by jbindc on Tue Feb 22, 2011 at 01:37:19 PM EST
    People who typically vote Republican are helping out in the protests.  Since we're big on non-causation, we could also argue that a bunch of Republicans could possibly be violating ethics - now there's news!

    Parent
    First off all (none / 0) (#45)
    by jimakaPPJ on Tue Feb 22, 2011 at 01:47:12 PM EST
    I don't think doctors working in university and public health clinics routinely vote Repub.

    And,of course, neither of us can prove their claim.

    But to suggest someone who supposedly would oppose budget deficits and a failed education system would be out helping the cause of the deficit and the failed system is a bit of a stretch.

    BTW - who would those ethic violating Repubs be?

    All those retired Tea Party members??

    Parent

    good lord (none / 0) (#44)
    by Rojas on Tue Feb 22, 2011 at 01:45:32 PM EST
    should we teach them some lessons on cheating from the free market?
    Damn, where do we start....

    Parent
    Eactly (none / 0) (#46)
    by jimakaPPJ on Tue Feb 22, 2011 at 01:48:38 PM EST
    They will learn on their own. No need to pay teachers to do it.

    Parent
    Democrats make better leaders? (5.00 / 1) (#36)
    by Harry Saxon on Tue Feb 22, 2011 at 12:48:33 PM EST
    You'll get no argument from me on that front.

    Parent
    In government employee unions (none / 0) (#39)
    by jimakaPPJ on Tue Feb 22, 2011 at 01:35:56 PM EST
    You betcha.

    Best and ONLY.

    Parent

    In government employee unions (none / 0) (#40)
    by jimakaPPJ on Tue Feb 22, 2011 at 01:35:56 PM EST
    You betcha.

    Best and ONLY.

    Parent

    Hey, who can argue (none / 0) (#54)
    by Harry Saxon on Tue Feb 22, 2011 at 10:06:12 PM EST
    with the result of democracy in the workplace?

    Parent
    You're wrong (5.00 / 1) (#48)
    by Yman on Tue Feb 22, 2011 at 02:48:25 PM EST
    Labor union members are a key Democratic constituency, given their strong support for the party. According to combined Gallup data, 63% of U.S. labor union members identify or lean toward the Democratic Party, while only 28% identify or lean toward the Republican Party.

    As usual.

    BTW - Why not just do a 10-second Google search?  I know it's easier to just couch baseless claims in he form of a question, but at some point it gets a little ridiculous.

    Parent

    Yes, those unions supported Walker (none / 0) (#53)
    by Towanda on Tue Feb 22, 2011 at 08:36:57 PM EST
    and he is rewarding them.  He denies it, but it's really undeniable -- and the unions, mainly in only one city in the state, are horrified to be exempted when others elsewhere are not.  So his ploy has not worked; all police and firefighters protested splitting them into exempt and non-exempt and joined the protests.  And the state patrol is split now, with only some exempt, to the point that some are pushing for withdrawing their endorsement.  The story of the split became public and reported in media after website statements that now are taken down from one troopers' union site.  Very ugly split.

    Parent
    I just heard (none / 0) (#28)
    by jimakaPPJ on Tue Feb 22, 2011 at 12:32:28 PM EST
    the WI teachers union's President say that they must protect the students...

    I wonder what happened to school boards and parents.

    Did they all flee to IL with the Demo Senators?

    How soon (5.00 / 1) (#30)
    by Harry Saxon on Tue Feb 22, 2011 at 12:36:24 PM EST
    before you can get back to us with an answer?

    Parent
    Not as fast as you will (none / 0) (#33)
    by jimakaPPJ on Tue Feb 22, 2011 at 12:46:09 PM EST
    find whatever I comment on and make an off topic response.

    Parent
    I'm sorry, (none / 0) (#35)
    by Harry Saxon on Tue Feb 22, 2011 at 12:47:33 PM EST
    I didn't realize your comment was meant to be off-topic.

    Thanks for the lesson.  :-)

    Parent