Supreme Court of the United States Will Hear a Case About Public-Sector Unions, and Democrats Are Terrified
Unions spend millions donating to democrats, and this case threatens their ability to collect dues from non-members
11:08 am, Oct 11, 2017, by Alice B. Lloyd
The upcoming Supreme Court case most threatening to the Democratic establishment will revisit the 40-year-old ruling that created public-sector unions as we know them today.
Janus v. American Federation of State, County, and Municipal Employees, Council 31—officially on the high court’s docket as of late last month—will answer a couple of existential questions for AFSCME, the SEIU, and the American Federation of Teachers. Questions left wide open by the court’s landmark 1977 decision, Abood v. Detroit Board of Education, that allowed public unions to require “agency fees” from all workers, whether they belong to the union or not:
· Are public labor unions ever really apolitical, what with their workers’ salaries being billed to the taxpayer?
· And if a majority of justices can agree this year that AFSCME et al. are innately political, doesn’t demanding dues from workers—members and non-members alike—violate the First Amendment, as any forced political donation would?
Abood gave labor unions license to demand dues to cover activities like wage and benefit negotiations. Otherwise, the Burger court decided, non-members would reap the rewards of collective bargaining without paying their “fair share.” The dues demanded of non-members are indeed called a “fair share” fee.
Newer cases—like Janus and Friedrichs v. California Teachers Association before it, which ended in a stalemate following Scalia’s death—dispute Abood on the grounds that union dues paid as a condition of employment constitute “compelled speech.” Abood’s ruling required that funds filched from non-members not support the union’s political activities. But, as the intervening 40 years have illustrated, everything a public sector union does from its continued existence to its ample fundraising for sympathetic candidates is tangled up in electoral politics.
Brave souls who’ve take on public sector unions—most notably Wisconsin governor Scott Walker—like to cite labor-friendly Franklin D. Roosevelt’s Politifact-accredited position on the matter of whether “public sector” and “union” belong in the same breath. “All Government employees should realize that the process of collective bargaining, as usually understood, cannot be transplanted into the public service,” FDR wrote in a spicy letter to the president of the National Federation of Public Employees. “It has its distinct and insurmountable limitations when applied to public personnel management.”
Public employees, a subset of the citizenry that multiplied during his presidency, can’t exactly negotiate with their employers, Roosevelt added: “The employer is the whole people, who speak by means of laws enacted by their representatives in Congress. Accordingly, administrative officials and employees alike are governed and guided, and in many instances restricted, by laws which establish policies, procedures, or rules in personnel matters.”
With Abood’s overturn imminent, the vast political machine—precisely what Roosevelt worried we’d give life to—fears for its survival. The proportion of Democratic funding extracted from public unions since the late 1970s makes their solvency essential to status-quo party operations. Obama overturned the last Bush administration’s transparency rules for public unions, providing cover for their political spending; but, five years ago, an indispensable investigation by the Wall Street Journal extrapolated from Bush-era data that organized labor’s political spending is quadruple the common estimate. All of which only supports Janus’s animating argument that compulsory non-member dues impose political speech on we the people’s employees, and—as FDR points out—on us, the people.
The all-American saga of compelled speech begins with another blockbuster reversal of precedent: Three kids in Pennsylvania coal country—Jehovah’s Witnesses all—brought their pious objection to wartime patriotism with them to school and, refusing to salute the American flag, got themselves expelled. The Supreme Court, in 1941’s Minersville School District v. Gobitis, upheld the district’s decision to give them the boot. But just two years later, the court leapt at the chance for a redo, risen up from a West Virginia school where young Jehovah’s Witnesses once again snubbed the stars and stripes. This time, in West Virginia State Board of Education v. Barnette, the plaintiffs won.
“If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion or other matters of opinion or force citizens to confess by word or act their faith therein,” opined Justice Robert Jackson, who joined the court after its 1941 decision. In Jackson’s opinion, the court’s decision against the students opened a loophole with its interpretation of a First Amendment that, somehow, “guards the individual’s right to speak his own mind, but left it open to public authorities to compel him to utter what is not on his mind.”
With Abood in 1977, that loophole opened anew. In 2010, Justice Samuel Alito referred to Abood’s handling of the First Amendment as “something of an anomaly.” He criticized it lengthily in another decision two years later, signaling the majority’s willingness to overturn Abood at their next opportunity—which came, with Friedrichs v. California Teachers Association in early 2016, on the eve of Justice Scalia’s unexpected death.
Indeed, “These cases were created to give the court an opportunity to reverse Abood,” said Joshua Blackman, a constitutional law scholar, in reference to Friedrichs, which came to a 4-4 tie—and now Janus, which a majority may decided as soon as early next year.
Deborah La Fetra, an attorney at the Pacific Legal Foundation who filed an amicus brief for Friedrichs and Janus both, points out that Abood recognized public employee unions were politically different from private unions in that their use of public funds itself verges on political action—“but they had an unrealistic view of how it was going to play out.” Believing public unions could and would manage to count political spending separately, “They decided to give the public employee unions this extraordinarily rare privilege of garnishing wages of non-members,” she explains. “There’s no other association in American that can do that.” And, La Fetra adds, “the union isn’t providing them with enough value that they want to support it voluntarily.”
Here Mark Janus abundantly agrees. He’s an Illinois health department employee who doesn’t think he should have to pay the union anything as a non-member, and now he’s on his way to the Supreme Court. His case argues—with backing from the National Right to Work Foundation—that public unions’ use of taxpayer dollars, their political sway in blue state legislatures, and their ideological grip on members’ voting habits make their every action innately political.
AFSCME readily admitted to Bloomberg in 2015 that half of its dues-paying workers would reconsider paying union fees if they weren’t compelled to. “We’ve found that at times we were treating all of our 1.6 million members as if they were activists, and they aren’t,” AFSCME President Lee Saunders said. “We were taking some things for granted.
He’s not quite confessing here that they haven’t been earning their workers’ dues—but they’re clearly aware of the stakes and braced for reform. When the only dues coming into the coffers are earned by grateful workers who’ve chosen to pay in—just 35 percent said they would keep paying “no matter what”—unions lose revenue. And as their money goes, so does their political power: The Democrats’ fundraising arm will flop hollowly in the downdraft.
“The union is almost indistinguishable from the Democratic party,” the Goldwater Institute’s Jim Manley reflected.
“Without a doubt this is most significant in blue states,” said Blackman, “because most of them have a greater connection to public sector labor than red states do.” Indeed, public sector unions have revealingly shrunk by 40 percent in Wisconsin since the state adopted right to work legislation. When they’re given the right not to contribute to the union coffers, workers think like Mark Janus.
Uncannily, Janus is also the Roman god whose two faces look into the past and ahead to the future. And with the arrival of Neil Gorsuch, whose record makes public unions squirm, the justices are poised to deliver on 40 years’ worth of hindsight.
Public unions grew fat on their freedom to take dues from workers whose support they hadn’t earned. If they shrink at anything close to the same rate, the hollowing out that lies ahead for organizations like AFSCME and the AFT, on the other hand, is pretty clear too. Because, as la Fetra puts it, these public unions “will have to pay attention to their members and earn their support, as opposed to simply taking their money.”