Kinsley: Right-to-work law in Michigan? Say it ain’t so!

The enactment of a so-called right-to-work law by the state of Michigan this week is indeed, as the media have described it, a blow against the union movement. Michigan, of all places. But it is also a blow against fairness and common sense.

“Right to work” sounds like a law guaranteeing you a job, or at least protecting your job once you’ve got it. A lot of the propaganda by the Chamber of Commerce and similar business groups is about so-called forced unionism. In fact, the main effect of a right-to-work law is nearly the opposite. It outlaws regulations of employment and allows your boss to fire you without cause.

Here’s a little Labor Law 101: The Wagner Act of 1935, which officially gave workers the right to join a union, and the Taft-Hartley Act of 1947, which filled in some details, were supposed to create a system that was generally welcoming to unionism but that didn’t dictate any of the terms. The notion was that the government would create and supervise procedures for labor negotiations, but the specific details of employment contracts (such as pay levels) would be negotiated by the parties.

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Before Taft-Hartley, employers and unions were allowed to negotiate a “closed shop.” That meant a workplace in which you had to be a member of the union to get a job. If the union threw you out, for whatever reason, you were out of a job as well.

This turned some unions into guilds, which excluded minorities, or employed only relatives of current members, and so on. Taft-Hartley outlawed the closed shop as well as the “union shop,” meaning a workplace where the employer could hire anyone it wanted but you had to join a union after you were hired.

Without a rule like this, unions faced a “free rider” problem: People could enjoy the benefits of union membership, including negotiation of wages, without sharing in the cost. Not only was this unfair to those who did pay their share, but it made organizing a union significantly harder. Why should I pay union dues if my fellow workers don’t?

Taft-Hartley did allow the “agency shop”: a workplace where you didn’t have to join the union, either before or after you were hired, but you had to pay union dues. This was supposed to prevent the free-rider problem while avoiding a “freedom of association” problem under the 1st Amendment, because no one would be forced into a union.

However, the notorious Section 14(b) of Taft-Hartley goes even further and allows individual states to ban even the agency shop if they want. That paved the way for the kind of right-to-work laws that Michigan and 23 other states have passed.

But the laws give rise to that free-rider problem: People can enjoy benefits negotiated by the union, but they don’t have to help pay the union’s cost. Not only is this unfair, it also makes building a union much more difficult. Why should I join, potential members will ask themselves, if I can enjoy all the benefits for free?

Principled conservatives should ask themselves a question: Why should the government be enacting laws that limit the freedom of individual employers to negotiate any deal they want with their employees?

On another level, right-to-work laws have become another weapon in the pointless, costly and ultimately zero-sum competition among the states to attract new businesses. No factory moves to a new state without the factory’s owners blackmailing the state for a package of benefits that typically includes right-to-work status along with various financing arrangements misusing the states’ power to issue federal tax-free bonds.

For the federal government to be subsidizing all sides of this ultimately futile competition is insane. But studies show, naturally, that states with right-to-work laws attract more new businesses than states without them. No doubt. That’s not the same as proving that the favors and privileges offered to business by states make economic sense.

Michigan is where I grew up, and in its current circumstances, you can’t really blame it for trying almost anything. It’s just a shame its politicians picked this, because not only does it spit on the state’s union heritage, it probably won’t even work.

Michael Kinsley, a former editorial page editor of The Times, is a Bloomberg View columnist.