There is an old lawyering adage that says “If the law is on your side, pound the law. If the facts are on your side, pound the facts. If neither is on your side, pound the table.” It also has an alternate ending which says, “When neither is on your side, pound your opponent.”
This adage could be restated as: When you have a good argument, make it well; when you don’t have a good argument, find a way to shift the focus elsewhere, whether it involves various distractions or ad hominem attacks. That latter strategy is also illustrated by air combat. When your opponent has your number and a missile is on the way at you, you dump chaff to confuse and misdirect the missile from you.
If you had a good, logical argument, you wouldn’t want to undermine its power to persuade by adding recognizably bogus arguments to your case. Adding such claims to lengthen the list of claimed arguments does not increase the power of any valid argument, but bundling a good argument with bad arguments can reduce the credence attached to the good one.
When this happens, it is likely that either the arguer doesn’t know that the added argument is faulty. Or, their intent is to win by any means, including intentional misrepresentation.
However, when you have a bad argument, trying to shift discussion elsewhere is quite likely. It is one possible way to win, despite a losing logical case.
The US Supreme Court is now considering the case of Janus v. American Federation of State, County and Municipal Employees (AFSCME) in which state employee Mark Janus objects to paying mandatory “fair-share” fees to the Union, even though he is not a member of the union. These fees required of non-members are allegedly there to compensate unions for the costs of negotiating on the behalf of non-members. (How much of unions’ costs go to that rather than politics is largely left up to the unions, who can easily twist cost allocation to minimize the fraction counted as politicking.)
The case provides a good example of a distract-and-confuse strategy being used by a party with a weak case.
Common Pro-Union Arguments That Are Drawing Increased Skepticism
As people have paid closer attention, several mainstay union arguments used to claim unions advance the “general welfare” have increasingly been found wanting. Claims that their efforts raise everyone’s wages, including non-members, are precisely the opposite of the truth. Unions ignore the differences between unions that could theoretically be voluntary associations and the reality of coercive unionization in fact. Their freedom-of-association assertions are used to actually deny many workers their freedom of association, and many union members have never actually cast a vote for their union, bringing even their freedom of association claims for union members into serious question. Further, the free-rider problem they claim justifies mandatory agency fees for representing all workers is actually caused by union choices, and is often used to make many workers forced riders who are harmed by their union rather than free riders who benefit at unions’ expense.
With so many union arguments increasingly recognized as faulty, including by several Supreme Court justices, union spokesmen and political favorites took part in dumping chaff that had nothing to do with the Constitutional issues that supposedly were to determine the case. And their willingness to do so reveals that they recognize they have a bad case for mandatory agency fees for non-members, and their best hope is that something else could swing the vote of one Justice to join the four reliably liberal votes, and uphold the Abood precedent by which mandatory agency fees are currently maintained.
New “Arguments”
In oral argument, the lawyer for the State of Illinois said mandatory agency fees were necessary because if some members stopped paying, raising others’ dues, unions “tend to become more militant, more confrontational.” This is hardly a Constitutional argument. Similarly, New York Mayor Blasio’s administration said that overturning Abood would result in “paralyzing public sector strikes” This is reminiscent of union Project Labor Agreements, in which unions are given control of a project’s workforce in exchange for the promise not to strike, which punishes nonunion workers who would not strike, in order to buy labor peace from unions who threaten strikes, penalizing the innocent to deter the guilty, who are actually rewarded. And both the plaintiff and some earlier courts have recognized that for the extortion it is.
Mandatory agency fee supporters at the Washington Post Editorial Board have further argued that a decision against Abood and the union would be viewed as proof that the current Supreme Court is no longer independent of politics, but now partisan for the other side, and suggested a “compromise” that would save Abood. Of course, such arguments only arise when rulings that the left prefers are threatened; when left-favored rulings undermine the Constitution or prior precedents, they have no objections to that partisanship. They also dragged out stare decisis (it stands decided) on their side, thus attempting to claim that the court should blindly defer to existing precedents. Again, this is only done when there is a threat to undo earlier changed interpretations they liked and hope to preserve as precedents; never for their “innovations,” which similarly violated stare decisis without their objections. Still further, the Washington Post claimed an anti-Abood ruling would cause a “fiscal crisis” in underfunded health care promises for retirees. That is, rich benefits created for unions in combination with “public servants” whose burdens to taxpayers would not show up until after they left politics require that union power be retained because earlier unwarranted exercises of union power would be too costly otherwise.
The Janus case is a good example of defending bad arguments, following a long line of earlier bogus union claims. They and their allies dump all sorts of irrelevant chaff in search of extra-Constitutional excuses when it becomes clear they are likely to lose their case because, beyond “more for me” desires by those who benefit from preferential treatment, it is so weak. And at its heart, the preferential treatment is just government coercive power delegated to unions, which has no place in a land which Americans could call the “land of the free,” without blatant contradiction.
