If the oral arguments heard by the Supreme Court on February 26 in Janus v. American Federation of State, County, and Municipal Employees, Council 31 give any indication of the ultimate ruling, public employee unions across the country are destined for a crushing defeat.
That defeat, should it come to pass, will transform the nation’s public employment sector into one large “right-to-work” jurisdiction, and in the process deliver a huge victory to the most reactionary elements of corporate America and the Republican donor class.
On the surface, the Janus case is about free speech. Below the surface, it’s about stripping public unions—the last bastion of organized labor in America—of their political influence. In an even deeper sense, the case is part and parcel of a long term rightwing project to undermine the social safety net, roll back civil rights, and complete what I and other legal commentators have termed a conservative “judicial counterrevolution,” aimed at reshaping American law by gaining and maintaining control of the Supreme Court.
The plaintiff, Mark Janus, is a child-support specialist who works for the Illinois Department of Healthcare and Family Services. Under current law, no one can be forced to join a union, and Janus chose not to become a member of AFSCME, the union that negotiates collective bargaining agreements with the state on the behalf of him and more than 35,000 other public employees in Illinois.
On the surface, the Janus case is about free speech. Below the surface, it’s about stripping public unions of their political influence.
Although Janus receives wage, healthcare, pension, and other benefits under the contracts AFSCME secures, he claims his First Amendment rights are being violated because Illinois law forces him to pay him to pay “fair-share” fees to the union to help defray the costs of collective bargaining. Such payments, also called “agency fees,” are deducted from employee paychecks and comprise a portion of the full dues payments remitted by union members. Fair-share fees cannot be used to fund a union’s political lobbying or its contributions to political campaigns.
In the Supreme Court, Janus is represented by the National Right to Work Legal Defense Foundation Inc., a business-backed anti-union group. In Monday’s oral arguments, and in written briefs, Janus’s lawyers have argued that the First Amendment protects not only the affirmative right to speak but also the passive right not to be compelled to speak or to endorse the speech, acts or policies of other people or groups. The lawyers say requiring dissenting public employees to pay fees to a union they don’t want to join, even on issues of pay and benefits, amounts to a violation of the First Amendment.
To win the lawsuit, Janus’s legal team will have to convince the court to overturn its 1977 opinion in Abood v. Detroit Board of Education. Handed down during a more labor-friendly era, Abood upheld the constitutionality of fair-share fees, recognizing that the fair-share structure is designed to equitably distribute the costs of union activities among those who benefit from them and to counteract the incentive for employees to become “free riders,” those who refuse to contribute to a union while obtaining benefits of union representation.
With the addition of Trump-appointee Neil Gorsuch as the successor to the late Antonin Scalia, conservatives on the court have re-established their 5-4 majority. In Monday’s argument, Gorsuch did not ask a single question. Justice Clarence Thomas, as usual, also remained silent. Chief Justice John Roberts and Justices Anthony Kennedy and Samuel Alito asked many questions, and left little doubt that they were prepared to overrule Abood. There is no reason to believe that their conservative colleagues Gorsuch and Thomas won’t join them when the court issues its final opinion.
This is the fourth time in the last decade that the court has reviewed cases seeking to overturn Abood. While the court has previously stopped short of doing so, it has slowly chipped away at its legal underpinnings.
Starting in 2012, with its opinion in Knox v. Service Employees International Union, and continuing with its 2014 decision in Harris v. Quinn, a majority of the court has emphasized that the payment of union dues by public employees is indeed a form of political speech. That makes it subject to the constraints of the First Amendment, because public unions negotiate contracts with governmental entities and such contracts by definition affect public policies and the spending of taxpayer money.
In 2016, following Scalia’s death, the court split along ideological lines in Friedrichs v. California Teachers Association, deadlocking 4-4 on the fair-share question.
Right-to-work laws are currently in place in twenty-eight states. The Januslitigation, if successful, would extend them to public-employee unions in the remaining twenty-two, including California and New York, the states with the greatest number of unionized public employees.
If the legal theories advanced by Janus’s attorneys seem like a smokescreen to obscure a political attack on unions, that’s because they are. The crippling of trade unions has been the goal of the National Right to Work Committee since it was formed in 1955 by a collection of hard-core conservatives, anti-communist zealots and Christian fundamentalists.
The committee’s first president was former New Jersey Congressman Fred Hartley, co-sponsor of the 1947 Taft-Hartley Act, which authorized states to adopt right-to-work laws. Many of the committee’s early leaders were also founders of the John Birch Society, including Fred Koch, the father of Charles and David.
If the legal theories advanced by Janus’s attorneys seem like a smokescreen to obscure a political attack on unions, that’s because they are.
As reported by The Progressive, in 2012, while the Knox case was pending, the Kochs’s Freedom Partners group funneled $1 million to the committee. Other important financial backers include the Walton Family Foundation, the Coors family’s Castle Rock Foundation, Wisconsin’s Bradley Foundation, the John M. Olin Foundation, and the Searle Freedom Trust. According to the The Guardian, since the 1990s the Bradley Foundation has donated $30.5 million to twenty-four organizations that have supported lawsuits against public unions.
It’s easy to see why the right-to-work movement has targeted public-employee unions. In the private sector, the unionization rate has dwindled to 6.5 percent. The public sector, by contrast, boasts a unionization rate of 34.4 percent.
In both the private and public spheres, employees covered by collective bargaining agreements earn considerably more than those who lack coverage. According to figures compiled by The Century Foundation, for example, unionized teachers in California on average earn an hourly wage 24.7 percent higher than their nonunion counterparts. Nationwide, median earnings for a two-income, nonunion family are $400 a week less than that of a union family.
Unionized workers are also more likely to vote Democratic. A recent Brookings Institution study found that from 1980 to 2016, right-to-work laws have decreased the Democratic presidential vote share by 3.5 percent.
The right’s game plan is simple: If fair-share fees are outlawed in the remaining twenty-two states where they are permitted, public-sector unions will collapse economically.
Although fair-share fees cannot be used for political purposes, union dues can be if channeled through political action committees and super PACs. As their membership ranks have grown, public-employee unions have become a key source of funding for Democratic office seekers and progressive ballot measures. During the 2016 election cycle, the Service Employees International Union alone donated $19 million to pro-Democratic super-PACs.
The right’s game plan is simple: If fair-share fees are outlawed in the remaining twenty-two states where they are permitted, public-sector unions will collapse economically, as increasing numbers of employees opt to become free riders. Unions, however, will still be required to represent all members of a bargaining unit in contract negotiations.
Depleted of funds for collective bargaining and for political purposes, unions will be weakened further, and still more workers will choose to join the free-rider ranks. This vicious death spiral his already happening in Wisconsin in the aftermath of Governor Scott Walker’s 2011 assault on public unions and the state’s subsequent implementation of right-to-work policies.
The right’s assault on unions, however, is just one of a host of other equally ambitious conservative legal campaigns. To name just a few: efforts to curb voting rights, repeal Obamacare, impose new burdens on abortion, erect new obstacles to the filing of class actions and racial and sex discrimination complaints, shield companies from liability for defective and dangerous products, reduce the financial risks of environmental pollution, and expand the rights of businesses under the doctrine of corporate personhood.
Viewed in its full political context, the Janus case must be understood as a critical battle in a protracted war for the future of the country. A decision in the case will be issued by the end of June.