The wrong argument

Dahlia Lithwick's rhetoric in her latest dispatch makes me mad enough to spit:

Remember that first day of college, when the dean of students explained to the young women that 19-year-old boys would be inclined to grope them pretty much constantly for the next four years unless they yelled, "No"? Section 760 more or less shifted the burden to the boys to ask if the girls want to be groped.

She likes the image so much that she uses it again to close the article:

This probably isn't good news for the unions, which are about to see their power to engage in political advocacy sharply limited by the high court. But as the justices seem mostly to agree today, it's not certainly not illogical to assume that if that cute freshman from your Russian-lit class already told you she didn't want to go on a date with you, it's a pretty safe bet she doesn't want to have sex with you, either.

The worst part is that, poisoned wells aside, Lithwick has a point. The claim that unions may reasonably assume that non-members support the union's political positions is obviously bunk. Since a union's right to collect agency fees is based on and limited by the principle that non-members have an obligation to pay for the costs of representation in collective bargaining, it follows that the union lacks a right to collect agency fees for other purposes. Insofar as political activities are divorced from collective bargaining, then, unions lack a right to collect agency fees for those purposes.

But that's not to say that Section 760 should be upheld (though of course it will be). The real issue here ought to be whether the union's participation in politics is seperable from its role as a collective bargaining agent. And it should be obvious that it isn't. Whatever strategic arguments might be had within the labor movement as to the relative merits of emphasizing politics or organizing, the plain fact is that political action can have an effect on contracts. As such, there isn't a clean distinction between collective bargaining and political action, and if we were having the right argument then it would be clear that the union's agency fee mandate extends to both.

The only problem is that the Supreme Court has already adopted (please don't ask me for a citation) a very narrow rule for determining which union activities are included in its collective bargaining responsibilities, and that rule explicitly excludes political action. The situation is not unlike that in affirmative action cases, where bad precedents force those who support such programs to rely on relatively weak diversity rationales rather than employing justice based arguments. So here we are, having (and losing) the wrong argument. It's annoying.