The U.S. Supreme Court will hear oral argument today in Janus v. American Federation of State, County, and Municipal Employees, Council 31, the third attempt by wealthy anti-labor interests to overrule Abood v. Detroit Board of Education (1977), and public-sector “agency shop” arrangements under the First Amendment.
Amy Howe at SCOTUSblog has the history and legal posture of this case in Argument preview: For the third time, justices take on union-fee issue:
In 1977, in Abood v. Detroit Board of Education, the Supreme Court ruled that government employees like Janus who do not belong to a union can be required to pay a fee – often known as a “fair share” or “agency” fee – to cover the union’s costs to negotiate a contract that applies to all public employees, including those who are not union members. The justices reasoned then that allowing the fees would help to avoid both labor strife and the prospect that nonmembers could be “free-riders” who benefit from the union’s collective bargaining efforts without having to pay for them.
But in recent years, conservative think tanks proposing expansive (novel) interpretations of the First Amendment well beyond the original meaning and purpose intended by the Founding Fathers, financed by conservative billionaires, are using the First Amendment in much the same way they used “substantive due process” during the Lochner era (circa 1897–1937) to strike down minimum wage and labor laws to protect “freedom of contract.” While the Lochner era approach has long since been discredited and abandoned by the court, the right-wing keeps trying to bring it back and to revive it. See George Will, Why liberals fear the ‘Lochner’ decision (2011).
An example of this is the Illinois Policy Institute, one prong of a broader campaign against public-sector unions, backed by some of the biggest donors on the right. Behind a Key Anti-Labor Case, a Web of Conservative Donors:
It is an effort that will reach its apex on Monday, when the Supreme Court hears a case that could cripple public-sector unions by allowing the workers they represent to avoid paying fees.
One of the institute’s largest donors is a foundation bankrolled by Richard Uihlein, an Illinois industrialist who has spent millions backing Republican candidates in recent years, including Gov. Scott Walker of Wisconsin, Senator Ted Cruz of Texas and Gov. Bruce Rauner of Illinois.
Tax filings show that Mr. Uihlein has also been the chief financial backer in recent years of the Liberty Justice Center, which represents Mark Janus, the Illinois child support specialist who is the plaintiff in the Supreme Court case.
And Mr. Uihlein has donated well over $1 million over the years to groups like the Federalist Society that work to orient the judiciary in a more conservative direction. They have helped produce a Supreme Court that most experts expect to rule in Mr. Janus’s favor.
The case illustrates the cohesiveness with which conservative philanthropists have taken on unions in recent decades. “It’s a mistake to look at the Janus case and earlier litigation as isolated episodes,” said Alexander Hertel-Fernandez, a Columbia University political scientist who studies conservative groups. “It’s part of a multipronged, multitiered strategy.”
In doing so, these donors have not just brought labor to the brink of crisis but threatened the Democratic Party as well.
UPDATE: Sean McElwee and Mark Stern at Salon explain, The Supreme Court’s latest union case is designed to kneecap the Democratic Party.
A recent paper by Mr. Hertel-Fernandez and two colleagues may foretell what Democrats can expect if Mr. Uihlein and his fellow philanthropists succeed. It found that the Democratic share of the presidential vote dropped by an average of 3.5 percentage points after the passage of so-called right-to-work laws allowing employees to avoid paying union fees. That is larger than Democrats’ margin of defeat in several states that could have reversed their last three presidential losses.
And that is clearly on the mind of Republicans. In a recent interview, the Senate majority leader, Mitch McConnell of Kentucky, acknowledged the potential of the Janus case to hurt Democratic fund-raising for the coming midterm elections. “In states where they got rid of the automatic deduction and employees figured they could keep their own money, they did,” he said. “So it could have an impact.”
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As the percentage of unionized private-sector workers has collapsed in recent decades, public-sector unions, which have held steady in the mid-30s since the early 1980s, have increasingly become a target.
Conservatives chafe at the unions’ political influence, which they believe not only props up the Democratic Party but also drives up government spending and skews public policy on issues like education.
In 2011, Wisconsin rolled back the right of most public unions to bargain over anything other than wages and eliminated the requirement that nonmembers pay fees. The portion of unionized public-sector workers in the state plummeted from half to just over one-quarter within five years.
In seeking to produce similar results nationally, conservative donors have created a symbiosis between groups aiming to overturn Supreme Court precedent favorable to unions and groups that take advantage of those rulings to drain unions of members.
The Lynde and Harry Bradley Foundation of Wisconsin, which had over $800 million in assets in 2016, has funded both kinds of organizations.
In a 2014 case brought by a group that had received more than $1 million in contributions from the Bradley Foundation, the Supreme Court ruled that home-care aides and other “partial-public employees” paid through Medicaid could not be forced to pay fair-share fees if they left their unions. Unions say these fees, typically about 80 percent of standard dues, are necessary to compensate them for representing nonmembers in bargaining and grievance proceedings.
Then in 2016, the court heard a case, Friedrichs v. California Teachers Association, that could have struck down fair-share fee requirements for all public employees represented by unions in more than 20 states, including California, Illinois and New York. The case was brought by a group that has received millions of dollars from the Bradley Foundation.
During 2015 and 2016, the foundation also substantially increased its contributions, totaling well over $1 million, to groups like the Independence Institute of Colorado and the Freedom Foundation of Washington State. Those groups have used such tools as direct mail, phone calls and door knocking to persuade public-sector workers to give up union membership.
Richard Graber, the chief executive of the Bradley Foundation … acknowledged that the increase was driven partly by the recent Supreme Court developments, which promised to make such opt-out campaigns more compelling for union members. (Some conservative groups are currently raising money for even more ambitious opt-out campaigns to take advantage of a favorable ruling this year.)
The Liberty Justice Center, backed by Mr. Uihlein, will try again today. Amy Howe of SCOTUSblog explains the radical theory of the case:
Janus’ argument in the Supreme Court for overturning Abood rests on the idea that, because issues like salaries, pensions and benefits for government employees are “inherently political,” agency fees – even if characterized as the costs of contract negotiations – actually finance speech that is intended to influence the government’s personnel policies. Therefore, he contends, requiring him to pay an agency fee is no different from requiring him to subsidize a group that lobbies the government. He points out that when the union was bargaining with the state, the state wanted to save money on health insurance and indicated that it could not afford across-the-board salary increases, but the union “took opposite positions.”
Few philanthropists have funded a more sweeping assault on labor than Mr. Uihlein, who with his wife, Elizabeth, founded a Wisconsin-based shipping supply company called Uline.
Mr. Uihlein is an ardent conservative who considers many Republican office holders too moderate on fiscal and social issues, according to those who know him.
“It’s not just politics for him,” said his friend Leonard A. Leo, the Federalist Society executive vice president, who declined to offer specifics on Mr. Uihlein’s views. “I think he is philosophically attuned to conservative ideas,” added Mr. Leo, whom the Trump White House enlisted to shepherd the Supreme Court nomination of Neil M. Gorsuch, Justice Scalia’s successor.
The Uihleins have spent tens of millions of dollars over the past decade supporting Republican candidates and committees. That includes contributions to super PACs backing the 2016 presidential campaigns of Mr. Walker and Mr. Cruz, and at least $250,000 to help Mr. Walker survive a 2012 recall election. (Mr. Uihlein did not respond to a request for comment.)
The Uihleins appear to be preoccupied with state employee pensions and the unions that negotiate them.
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[T]he Illinois Policy Institute, which drew more than one-third of its $5.8 million in revenue that year from Mr. Uihlein’s foundation, had found a viable plaintiff: Mark Janus. The Liberty Justice Center and the National Right to Work Legal Defense Foundation, which Mr. Uihlein also contributes to, represented Mr. Janus in court.
Since then, the policy institute has sought to persuade state employees to leave their union through its mailing campaign. It said it had obtained employees’ names through Freedom of Information Act requests.
[Republican Illinois Governor] Rauner’s administration has amplified the institute’s message, and vice versa. In an August 2016 email to state workers, the administration highlighted a benefit of giving up union membership and urged workers to visit a website that would help them do so. The policy institute soon promoted the same website and provided similar guidance in its mailings to state workers.
Mr. Uihlein’s foundation has supplemented these efforts by supporting a nonprofit called Think Freely Media, which uses storytelling techniques to champion free-market ideas, including right-to-work laws. The Uihlein foundation contributed more than $1.5 million to Think Freely from 2014 to 2016, the last year for which tax records are available.
At the center of this network is a longtime conservative activist named John Tillman, who serves as the chief executive of the Illinois Policy Institute as well as the chairman of the Liberty Justice Center and Think Freely Media.
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In a fund-raising solicitation by the policy institute in December, Mr. Tillman claimed credit for helping more than 2,600 workers leave their union, resulting in a loss of $1.2 million in union revenue.
“It’s time for Illinois to throw off the shackles of big labor and big government,” he wrote.
The Supreme Court is widely expected to rule in favor of Janus on a party line 5-to-4 basis and overturn a 1977 precedent, Abood v. Detroit Board of Education. The Consequences of Judicial Activism on the Supreme Court:
Why are we so sure about the Janus outcome? The court heard a similar case in 2016, and it split 4-4 after Justice Antonin Scalia’s sudden death. Neil Gorsuch has proved himself more conservative than Justice Scalia on most issues, so there is little hope that labor will win this time around.
Many observers have noted that if the court bans fair-share fees, it will hurt unions by, first, depleting them of funds and, second, undermining solidarity through the encouragement of free riding.
But fewer people have considered what conservatives are risking: Union fair-share fees do not exist in an employment vacuum; the same logic and legal framework that permits the government to mandate these fees allows the government to conduct itself as an employer. Janus is largely being discussed as a case that is likely to defund and disrupt labor unions, but the case cannot simply injure unions and leave everything else intact.
At last count, federal, state and local governments employed over 21 million workers, so the courts have had to develop a framework for governments to be able to manage their work forces without constantly confronting the Constitution. Imagine if a teacher called in sick, and an administrator had to procure a warrant before searching her desk drawer for a text book, or else risk violating the Fourth Amendment. Or imagine if a police sergeant who tells an officer that he didn’t have time to listen to a complaint about the break room now has to worry that he violated the First Amendment.
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The Supreme Court has said the First Amendment applies only when the public employee can show that she spoke as a citizen on a matter of public concern. Similarly, in 1987, the court upheld a public employer’s search of an employee’s desk after balancing “the invasion of the employees’ legitimate expectation of privacy against the government’s need for supervision, control, and the efficient operation of the workplace.” In 2010, the court extended this approach to employer-issued electronic devices, allowing a public employer to search them without a warrant if the search is “motivated by a legitimate work-related purpose.”
The 1977 Abood case recognized that the government has an interest in “labor peace,” in permitting its employees to have an exclusive representative that can bargain on their behalf, and that workers who benefit from the union’s activities should pay to support this collective-bargaining function. Therefore, the court created a balancing test that weighed the government’s interest as employer in managing its work force with the employee’s rights of free speech and association. According to this balance, any employee in the bargaining unit can choose not to join the union, and as a result pays only fair-share fees that cover union activities that are germane to collective bargaining.
This test falls squarely within the line of cases that balance the government’s interest as employer against the employee’s rights of speech and association in matters of private concern. Imagine a state administrator who chooses to draft memorandums according to her own tastes rather than by office protocol, or a city hall plumber who doesn’t perform her job because she feels she shouldn’t have to pay for her own tools.
If the court overrules Abood, as the petitioners in this case are asking, it will disrupt the careful balance it has struck concerning public employees’ constitutional rights in the workplace and turn every workplace dispute into a constitutional case.
If the justices strike down Abood and rule that public employees have a First Amendment right not to pay fair-share fees, then all of these trivial matters of private concern risk becoming constitutional cases.
Perhaps this is why several of the most compelling amicus briefs in this case have come from unlikely sources. The constitutional law scholars Robert Post and Charles Fried (the latter having served as Ronald Reagan’s solicitor general) write that if the court bans fair-share fees on First Amendment grounds, then it “would set in motion drastic changes in First Amendment doctrine that essentially threaten to constitutionalize every workplace dispute and, further, to unsettle other constitutional doctrines that distinguish between the government as employer (or proprietor) and as sovereign.”
The prominent conservative legal scholars Eugene Volokh and William Baude went further and filed a brief supporting the unions. They argue that the government compels subsidies of others’ speech all the time and that there is nothing constitutionally suspect about that. Mr. Volokh and Mr. Baude point to the fact that we don’t have a right to opt out of paying a portion of our taxes for issues we disagree with.
Furthermore, the government regularly requires people to purchase speech related to services that they may not want, such as doctors and lawyers having to enroll in continuing education courses. Or even the general requirements that people purchase car insurance or vaccinations, despite the fact that some may disagree with that mandate. To recognize a general First Amendment right to not fund things that one may disagree with, despite the government’s interests in mandating such payments, would completely upend many areas of life that are necessary for our society to function.
If the Supreme Court recognizes a constitutional right to withhold payment for matters one disagrees with, or diminishes the government’s interest in efficiently managing its work force, it will turn every minor payment and every workplace matter into a federal case.
This is clearly not what the Founding Fathers ever intended in the First Amendment.