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Monday, September 1, 2014 | One comment

Organized Labor in a Free Society

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“Freedom in capitalist society always remains about the same as it was in ancient Greek republics: Freedom for slave owners.” —Vladimir Lenin

Labor Day is an interesting holiday for those that love liberty. For some, Labor Day reeks of the success of the socialist workers movement and should be eschewed; for others, it is merely a celebration of those whose labor is critical to our diverse economy. I propose that for those that love liberty, Labor Day can be a positive holiday that recognizes the importance of voluntary exchange in a free society. While we disagree with Lenin’s assessment of freedom in a capitalist society, we understand the source of his frustration.

Capitalism in Lenin’s view is more about individuals than about a system. Lenin and other socialists saw powerful individuals as “capitalists.” These were the individuals who owned capital or the means of production. By owning machines and factories the capitalists could leverage their ownership into profits by hiring wage laborers to carry out production. In Lenin’s view, this employment relationship was exploitative of the worker in the same fashion as slavery. However, there is a key difference. In the slave relationship the master literally owns the slave and can coerce the slave’s labor to the master’s profit. In contrast, the employment relationship in a capitalist system is voluntary. The worker owns their labor just like the capitalist owns their factory. Thus, a worker voluntarily offers their labor to the owner in exchange for the owner’s voluntary payment of wages. If the owner feels they can profit more from the worker’s labor than from the wages they offer to pay, then the exchange is beneficial for the owner.

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So-called “identity politics” have recently been at the heart of many political controversies in this country. From immigration policy to public spending, it seems that political spin doctors attempt to make each policy controversy personal for voters by making the narrative about personal traits like race or gender and creating an “us versus them” dichotomy for each debate.

This approach often sidesteps the more fundamental questions about the proper role of government and the use of government power. Such is the case with recent police shootings. A recent Washington Post article did exactly this by framing the differences in media and community responses to the Ferguson shooting and Utah’s own shooting of Dillon Taylor in racial terms. In Ferguson, a white police officer shot a black teen while in Utah a white man was shot by a non-white officer. The article tries to frame the outrage in Missouri with thousands of protestors versus the more subdued response in Utah as one based on race. This approach misses the more important point—the difference in responses is a direct reflection of the level of discomfort with government power in the two states.

In Ferguson, racial terms are only an easy way to understand people’s level of personalization with the event. There is a large population of racial minorities who may perceive the shooting of Michael Brown as a use of police authority that could be used against any of those who share Michael Brown’s race. That group is likely to respond strongly because the use of deadly force by a government actor is considered a more likely possibility for them on a personal level. However, in Utah a member of the racial majority being shot by police didn’t evoke the same response. The use of racial terms are only superficial. The deeper issue is whether Utahns see the use of deadly force by government agents against them as a possible or personal reality.

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Social networks have been saturated with a wash of “Ice Bucket Challenge” videos featuring people voluntarily pouring ice water over their heads in the name of charity. One can hardly scroll through their Facebook feed without encountering dozens of these videos posted by everyone from personal friends and family to celebrities and even former presidents. This viral phenomenon is an interesting example of the power of social pressure as people feel the need to conform to the expectations of others by participating (along with those who might be participating to get personal attention).

This “challenge” is accepted by pouring cold water over oneself, and posting a video of the feat wherein the person challenges a few others to do the same. The consequence of declining the challenge is to contribute a moderate sum to a particular charity. All participants are encouraged to donate at least something to the charity, whether or not they douse themselves. The precise origins of the challenge are not clear but the concept has been used in various ways for many charities.

The largest and currently most viral version is raising money and awareness for the ALS Association which advocates for and supports scientific research to treat amyotrophic lateral sclerosis (Lou Gehrig’s disease)—a neurodegenerative disease that debilitates motor function. For ALS, the viral challenge has been a financial boon. The association has received $53.3 million in donations this August compared to just $2 million over the same period last year. In fact, the nonprofit ALS has received more donations in one month than its entire net worth of $20 million in 2013. While participating in the challenge is a fun way to cool off this summer, it raises some interesting questions about our society and the role of social pressure.

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In two recent and separate incidents, individuals recording the actions of police officers were cited for “disorderly conduct” after testy exchanges between the person recording an the officer(s) being recorded.

The first incident occurred in Bountiful, where Bryce Weber noticed a police officer sitting outside his home for some 40 minutes. He stepped outside to record the officer, who alleged that Weber’s recording of him was interfering in his work. Despite Weber ultimately moving across the street while continuing to record, the officer still claimed that he was interfering and thus cited him for disorderly conduct, as Weber refused to return to his home when ordered to do so by the officer. Read more details of the encounter here.

As it relates to this situation, a person in Utah is guilty of disorderly conduct if “the person refuses to comply with the lawful order of a law enforcement officer to move from a public place…” The question Weber’s defense attorney will likely push back on is whether the officer’s command to Weber to return to his home was lawful. While in certain circumstances an officer can lawfully order a person to move away so as not to impede the flow of traffic, interfere with an investigation or other police action, etc., an order to go inside one’s home—as opposed to moving away a safe distance, for example—seems unreasonable and unlawful.

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A new study, authored by two university professors, find that corporate interests and wealthy individuals control policy making so much that “the preferences of the average American appear to have only a minuscule, near-zero, statistically non-significant impact upon public policy.”

Titled “Testing Theories of American Politics: Elites, Interest Groups, and Average Citizens,” the study analyzes nearly 1,800 policy issues, comparing public opinion on each to the preferences of heavily financed lobbying when determining the final result of legislation. This research, says historian Allan J. Lichtman, is “shattering” and “should be a loud wake-up call to the vast majority of Americans who are bypassed by their government.”

“By contrast,” the study notes, “economic elites are estimated to have a quite substantial, highly significant, independent impact on policy.” Likewise, the authors write, “interest group alignments are estimated to have a large, positive, highly significant impact upon public policy.”

They conclude: “If policymaking is dominated by powerful business organizations and a small number of affluent Americans, then America’s claims to being a democratic society are seriously threatened.”

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The following are some of the important excerpts from our First Annual Fourth Amendment Forum. They are provided with time codes in case you are interested in watching that portion of the video to see the comment in context.

Kara Dansky (ACLU attorney, national office), 12:50:

Where Utah stands out is that Utah is a leader in reform, actually. Utah passed a bill last session… that will require some reporting of SWAT deployments and different kinds of data that are collected in connection with SWAT deployments. I think this is a really positive trend… As far as I can tell, no state other than Utah is making much of a concerted effort to shine some light on this problem, and to bring some transparency and oversight. So I think that that’s great.

AG Sean Reyes, 20:45:

We really do want to empower law enforcement. At the same time, though, and particularly as the lawyers tasked with protecting the liberties of our own citizens, we want to make sure that they do it properly, without depriving those rights and those liberties in the process. I don’t think it’s a zero sum game. I think we can have effective and proper law enforcement, and still be vigilant about protecting the rights and liberties of our citizens.

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Between the Cliven Bundy standoff and the Recapture Canyon protest, federal ownership of vast swaths of land within western states has come to the fore of public attention. Utah has been leading efforts to transfer federal land into state control, passing H.B. 148—demanding the transfer of federal lands to state control—in 2012 and hosting a summit for like-minded western legislators in April of this year.  Seven other western states have passed similar bills in recent years, giving the issue the feel of a credible movement. But, fervor aside, what is a federal land transfer likely to look like?

I. It’s Complicated: The Implications of a Federal Land Transfer

In some ways, a federal transfer of land is more complicated than one might expect. Though less well known than H.B. 148, H.B. 142 passed in 2013 and is in many ways the more meaningful step toward Utah getting control of land in its borders. After the initial excitement of H.B. 148, H.B. 142 authorized a study and economic analysis of what would actually be involved in a mass federal land transfer.  Conducted by teams of researchers associated with the University of Utah and Utah State University, this study aims to get the nuts-and-bolts information that Utah would need to be prepared to more than double its land holdings. The results of this study are due to be presented to Utah legislators this November so while the results aren’t in yet, work to date indicates the scope of what will be involved.

The first issue is simply inventorying federal land in Utah, all 35,033,603 acres of it. The amount of land involved is so vast that just getting a grip on where it is and what each area’s unique potential uses are (development, preservation, recreation, grazing, timber, mineral extraction, oil and gas, solar, and wind) is quite an undertaking.

The next issue is identifying current interests associated with each area and developing a way to account for and manage those interests during and after a transfer. Much of this land is already subject to oil, gas, mining, grazing, and timber leases or rights which would contractually need to be honored or otherwise addressed. Other areas are already used for recreational purposes which would need to be accounted for.

Then there’s the matter of money. There are currently several revenue sharing schemes in place for money generated from public lands. Essentially, in recognition that federal ownership of lands necessarily deprives Utah of the ability to generate tax revenue from that land, the federal government has developed several programs which share portions of the proceeds from grazing and timber leases and shares them with local governments.  Any transfer plan needs to account for how money will be shared and how localities will adjust after the transfer.

And that is to say nothing of trying to estimate the bill for taking over an area the size of Wisconsin. It’s not a simple matter of finding what various federal agencies currently take in and spend to manage land in Utah: because the federal government mismanages and underfunds land management, the cost of doing it right could be significantly higher than what is currently being spent. Conversely, there are certainly potential efficiencies that could be gained through effective management. The study authorized by H.B. 142 analyzes several hypothetical scenarios involving different types and degrees of transfers and attempts to predict the economic impact of each.

II. The Process of Getting Control of Federal Lands

There are essentially two tactical routes which Utah could take to get control of federal lands.

The first would be for Congress to pass a bill ceding land to Utah. Federal land transfers are actually quite common, but they generally happen on a very small scale. For example, last year the federal government transferred, gratuitously, a small amount of land in Wyoming for a shooting range. It’s simple, but requires adequate political will at the federal level which seems unlikely. Attempts at larger federal land transfers have not made much progress. For example, in 1995, Senate Bill 1031 proposed a bill to offer all BLM land to the states. It summarily died in committee. Admittedly the political climate and elected leaders are much different now than in 1995. However, devolving federal lands does not seem to be high on any federal legislator’s bucket list.

The second option would be a lawsuit that would argue that the federal government is required to transfer federal lands to the states. There are credible legal arguments supporting this proposition—primarily that the Utah Enabling Act was a compact which bound the federal government to dispose of land within state boundaries or that the equal-footing doctrine requires the federal government to afford Utah the same right to control property within its borders as earlier-admitted states. However, assuming the Supreme Court was willing to hear the case, there is no controlling legal precedent so the outcome would be anybody’s guess. And given the Roberts Court’s penchant for avoiding controversy even when mental gymnastics are required to do so, the outlook is not necessarily promising.

While returning land within Utah to local control makes sense from both a management and a self-determination standpoint, it is a complicated issue. Regardless of the method used to pursue it, it will be an uphill battle. It is nevertheless a battle worth pursuing.

The following op-ed, written by Connor Boyack, was published this weekend in the Daily Herald.

Earlier this month, Libertas Institute announced a new lawsuit against Common Core here in Utah. There are six plaintiffs: two teachers, two parents of school aged children, and two school board members. None of them were consulted prior to adopting the Common Core standards in our state.

That may sound a bit silly — who are they to think they should have been consulted? As it turns out, state law requires it; § 53A-1-402.6 of the Utah code requires the Utah State Board of Education to establish and implement standards “in consultation with local school boards, school superintendents, teachers, employers, and parents.” The point of this law is to ensure local control and buy-in of whatever standards the Board adopts.

That didn’t happen with Common Core — and it should have. Here’s what actually happened.

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Editor’s note: Lyft is one of two popular ride-sharing services (Uber being the other) that have faced significant opposition from traditional competitors such as taxi companies. Governments around the country have attempted to enforce regulations on them. Libertas Institute’s president recently got a ride using Lyft and documented his experience here.

The woman interviewed in this article is one of several Utah drivers who have been issued extremely costly citations in recent weeks for offering a ride to a consenting passenger. 

Libertas Institute: Tell us about yourself.

Amanda Wardell: I’ve lived in Salt Lake City for about three years. I’m a single mother of a seven-year-old daughter—her father’s rights were terminated, so I get no financial support from him. I’ve been the sole provider for her. I just finished school to get my massage therapy license, so hopefully that will give me some opportunities.

I worked as a health inspector in Texas for a few years, but when I moved to Utah I found a job with a private company which was up to 75% travel, so I was never home. My daughter’s grades were bad, she’s in trouble all the time. Not having me around, I just couldn’t do that anymore. So I had to switch fields, and I tried to find other jobs that didn’t require traveling so much, but I didn’t have any luck.

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Under Utah law, cities are authorized to require permits of business owners—including home business owners—for “purposes of regulation and revenue.” A bill attempting to restrict that authority, specifically carving out an exemption for at-home business owners, struggled in committee and was referred to interim study.

That interim study came in the form of another committee meeting a few weeks ago, in which the same debate was had; many legislators struggled to understand how or why the legislature should “impose” something upon the cities. They voiced objections to the thought of “micro-managing” cities, and indicated a preference to allowing cities to do as they please.

What wasn’t brought up, however, was the fact that the legislature has in the past—in many cases—restricted the authority of local governments to ensure a state-wide policy is followed rather than enabling a patchwork of different treatment for citizens around the state. As it relates to the home business exemption, this also makes sense. Why should a (very part time) seamstress earning $200 a year on the side be forced to pay a $150 license fee for the privilege of working in her own home, while another seamstress earning the same amount in another city be free from that burden?

As mentioned, there are many instances in Utah law when cities and counties are prohibited from doing something. Here are a few examples.


Utah law explicitly recognizes the “individual right to keep and bear arms” as “a constitutionally protected right under Article I, Section 6 of the Utah Constitution.” As such, “the Legislature finds the need to provide uniform civil and criminal firearm laws throughout the state.”

Part of that uniform law includes the following:

(2) Except as specifically provided by state law, a local authority or state entity may not:
(a) prohibit an individual from owning, possessing, purchasing, selling, transferring, transporting, or keeping a firearm at the individual’s place of residence, property, business, or in any vehicle lawfully in the individual’s possession or lawfully under the individual’s control; or
(b) require an individual to have a permit or license to purchase, own, possess, transport, or keep a firearm.

Many cities might like to enact policy restricting or regulating firearm possession and transportation. Some would jump at the chance to collect revenue by requiring a permit and license. This power is denied to them by the legislature, creating a state-wide policy that recognizes and protects the right to acquire and possess firearms.


Andrea Scannel, a Utah mother, was at Mount Logan Middle School for a government-administered “free lunch” program for her three-year-old. While there, she nursed her infant. She was given a letter by the school’s principal, delivered by an employee, passive-aggressively inviting her to “use discretion” and to “find a way to discreetly feed the baby, whether with a small blanket or in a more private area.” Andrea was taken aback by the “request,” later commenting: “I just never expected anyone to have an issue with me feeding my baby while everyone is there to feed their children.”

Utah law states, “A woman’s breast feeding, including breast feeding in any place where the woman otherwise may rightfully be, does not under any circumstance constitute an obscene or lewd act, irrespective of whether or not the breast is covered during or incidental to feeding.”

It further stipulates that local governments “may not prohibit a woman’s breast feeding…” Some of the more conservative cities might otherwise wish to regulate how much breast can be exposed, and when and where, but this power is denied to them “irrespective of whether the breast is uncovered during or incidental to the breast feeding.” Mothers around the state now take comfort in a general recognition that their nursing of their infants is a legally protected activity.

Alcohol regulation

One might imagine what Provo, Utah would do in regards to regulating alcohol availability if it had the opportunity, but Utah law states that it, and other cities, “may not regulate in relation to” an issue “related to alcoholic product control” if state law already addresses that issue, unless the legislature “expressly granted” authority to do so.

If the legislative committee reviewing the business licensure bill imposed their same logic on this issue, some cities such as Park City and Salt Lake City would have free-flowing booze while others, such as Provo or Orem, would be dry cities. The legislature has previously decided on requiring a more uniform set of policies throughout the state, denying authority to the cities to act contrary to its edicts.


Just a few years ago, the legislature passed a bill that prevents local governments from enacting “an ordinance or policy that limits or prohibits a law enforcement officer, local official, or local government employee from communicating or cooperating with federal officials regarding the immigration status of a person within the state.”

Whereas a more liberal city council might want to prevent coordination such as this to provide sanctuary to so-called “illegal immigrants,” cities and counties around the state have been denied the ability to intervene.


More examples exist, but these suffice to show that the legislature is perfectly comfortable establishing state-wide policies on matters where there otherwise might be diverse interests among Utah’s 243 cities and towns.

Of course, just because the legislature has done something in the past is not reason on its own to repeat it in the future. However, in cases where fairness and rights are involved, it makes more sense to have a uniform policy that recognizes and protects that right.

The right to work has long been recognized by the courts in Utah. For example, in Leetham v. McGinn: “The right to engage in a profession or occupation is a property right, which is entitled to protection by the law and the courts.” In another case, McGrew v. Industrial Commission, we read this:

[O]ne may be said to have a special property in his profession or calling by means of which he makes his support, and he can be deprived of it only by due process of law. . . . . The right to work, the right to engage in gainful occupations, the right to receive compensation for one’s work are essentially property rights. So too is the right to enjoy the benefits resulting from the work of one so employed. So also the right to engage in commerce or in legitimate business is property.

For this reason, we support a state-wide restriction on a city’s ability to siphon money from its residents through permits for operating businesses inside the home that do not impact the public. Legislators expressing concern over stepping on the toes of cities seems, in the end, to be more a concern of money than authority; local governments are not going to give up an estimated $4 million in revenue without a fight.