War Against the Weak
The brutal Republican campaign to eliminate the collective rights of individuals and increase the collective rights of corporations.
Three recent Republican efforts, each one critical to the conservative agenda:
1) the attempt by Republican governors to eliminate the right of public employees to bargain collectively;
2) the attempt to eliminate the consumer protection bureau created in the Dodd-Frank financial services reform law—probably the most important part of the law for ordinary investors;
3) the recent 5-4 * Supreme Court decision to limit the right to "class-arbitration" in many circumstances—taking away the collective power of those whose injuries are too small to be effectively remedied individually yet who, together, might be able to stand up to much stronger institutions.
The unifying theme is an assault on the weak. The power of individuals, each of us feeble in isolation, to act collectively and hence stand up to the powerful is being eviscerated. Those who already begin behind are finding the few legal protections afforded them under attack. A critical element of the Republican agenda has become increasing the legal power of those who already have power, and diminishing the power of the weak.
The focus on eliminating public-sector collective bargaining rights in Wisconsin and elsewhere—even after workers had agreed to all the financial concessions sought—makes clear the fundamental reallocation of power being sought. If we are upset at the outcome of an election, we don't take away the right to vote of those who defeated us; or limit their speech. If a trial results in an outcome we are not satisfied with, we don't eliminate the capacity of the opposing party to call witnesses. So why the rush to alter the rights of the workers? Why not focus on the failure of elected officials to negotiate more effectively or elect leaders who will do so?
The answer given by the Republicans is that it isn't possible to get a fair outcome when unions of public-sector employees make such significant contributions to elected officials. If this concern for undue influence is so paramount, why don't the Republicans get more exercised when contributions are being made by enormous corporations that have equally significant—and costly—issues pending before the government? Take, for instance, all the legislation relating to tax loopholes or to procurement or the myriad of regulatory matters that are at the heart and soul of Washington decision-making. Not a word has been said about limiting the collective power of these corporate groups to exercise their pre-existing rights to contribute, lobby, organize, or speak as one.
Why focus only on the rights of the workers, traditionally the least powerful group?
The relentless effort by Republicans to dismantle the consumer protection bureau is equally dismaying. On the one hand, the new bureau has relatively few powers beyond those already distributed to regulatory agencies that failed over the past decade—the OCC, OTS, FED, CFTC, etc. On the other hand, the agencies that failed did so precisely because they were subject to agency capture by the industries they were supposed to regulate. A newly resurgent consumer protection bureau with an aggressive chief in Elizabeth Warren could actually empower the consumers whose voices have traditionally been ignored. Hence the rush to defund, dismantle, and disparage.
And, finally, conservatives abandoned their oft-claimed allegiance to federalism by ignoring established California law in order to eliminate the right of consumers to join together in class-arbitration, the arbitration analog to class-action lawsuits. The concern asserted by the conservatives on the court was that such a mechanism might exact "unfair" settlements from the major corporations on the other side. In open disregard of a clear state law that permitted such claims to go forward, the court eliminated the only mechanism small claimants would have to proceed when the value of their individual claims made separate arbitrations impossible.
When was the last time conservatives on the court demonstrated significant concern for the absence of a remedy for smaller claimants who cannot stand up to the unending litigation capacity of the larger entities they are challenging?
The notion of collective action by the weak is fundamentally anathema to the Republican agenda. The notion of collective action by the powerful, on the other hand, is only applauded and reinforced. As soon as the associational rights of the powerful are at issue, conservatives unwrap endless constitutional arguments to protect their collective action. Yet these rights are mere ephemera when it comes to the poor, to bilked investors, or to workers.
Correction, May 9, 2011: Due to an editing error, this article mistakenly described the Supreme Court decision to limit the right to "class-arbitration" as being 5-3. It was 5-4. (Return to the corrected sentence.)