Take a look at what the Republican National Governors Association (the “RGA”) is saying in support of Wisconsin Governor Scott Walker in his battle with public employee unions:
Notice what’s left out? There’s not a word about Walker’s trying to roll back public employee collective bargaining rights. The political consultants advising the RGA have clearly decided that they can make some political hay by reminding voters that Wisconsin Democrats aren’t showing up for Senate votes and that public employees haven’t shared much in the pain generated by the economic downturn. Yet the RGAs silence about collective bargaining rights shows that it has taken to heart polling results indicating that there's little public support for rolling back public employee collective bargaining rights.
It’s not hard to figure out why Wisconsin Senators fleeing out-of-state to nullify the results of the last election is unpopular. People understandably expect the votes they cast last November to count. It’s a little harder, however, to understand why making public employees give back concessions they’ve won from the state through collective bargaining is so much more popular than scaling back the collective bargaining rights they exercised to secure those concessions. A lot of people seem to believe that, under present circumstances, it’s perfectly OK for the state to demand that public employees give back pension and health care benefits but that it's deeply objectionable, as a matter of political morality, for the state now to nullify any collective bargaining rights--even when there’s a decent argument to be made that public employee collective bargaining creates a structural tendency toward insolvency in state governments.
That’s perplexing. If political morality demands that public employees keep their hard-won collective bargaining rights mustn’t it also hold that they’re entitled to whatever advantages they’ve secured by exercising those rights? With a little ingenuity, you can negotiate your way around that contradiction temporarily by pointing to peculiarities of the Wisconsin situation. The public employee unions are offering to give back advantages secured through collective bargaining in exchange for the state’s not acting on its legal right to lay off public employees. So far, that’s not a deal that Walker and the Republicans have been willing to accept, but maybe a critical mass of voters believe that they should because it’s wrong under present circumstances to demand anything more from public employees.
Yet that line of thought leads us back to the same puzzle. Wisconsin public employees owe their collective bargaining rights to a fifty-year-old act of the state legislature and the governor. Now a duly elected legislature and governor have decided that collective bargaining about pension and health care benefits is a bad idea. How can the Wisconsin state legislature and governor have had the authority to confer collective bargaining rights on public employees fifty years ago and now lack the authority to take them away today when they believe they imperil the state’s solvency over the long term?
Asking such questions brings a general feature of the politics of so-called "entitlements" into focus. A right becomes legally vested when the right-holder acquires the legal standing to uphold it in court against people who want to take it away. You might say that a right becomes politically vested when the right-holder acquires the moral standing to uphold it in the court of public opinion against a democratic majority that wants to take it away. Scott Walker and his allies in the Wisconsin legislatures have all the legal authority they need to take away public employee’s collective bargaining rights inasmuch as they aren’t legally vested. The question is whether those rights are still vested as a matter of political morality.
The battle we're going to be having over “entitlements” at the federal level is going to turn on roughly the same question. When we speak of unfunded Medicare and Social Security liabilities, we’re referring to clusters of statutory rights that aren’t vested legally inasmuch as congress and the president have all the legal authority they need to prune them back as far as they'd like. The question will be whether we’re reaching a tipping point in political morality at which those rights aren't vested politically.