Supreme Court Fixing To Strangle Uppity Public Worker Unions Dead, Maybe
What's The Case About?
At issue is the ability of public sector unions to charge nonmembers a fee to cover the costs of collective bargaining. A California teacher named Rebecca Friedrichs is suing the California Teachers Association, claiming that having to pay any fee at all for union representation is a violation of her free speech rights. Friedrich doesn't belong to the CTA, but she and other nonunion teachers still have to pay what's called an "agency fee," or, more accurately, a "fair share fee," which covers the cost of collective bargaining. The logic there: since all workers benefit from collective bargaining, it's only fair to have everybody pay for the costs of doing it, even workers who opt out of joining the union. This prevents cheapskates from being "free riders" who get the higher wages and job protections of a union, but don't pay their fair share of the union's costs of negotiating for those bennies.
Fair share fees grew out of a 1977 case, Abood v. Detroit Board of Education, in which the Court decided public sector workers couldn't be forced to belong to a union, since their dues might go to pay for political activities that individual workers might not support. It's a Free Speech thing: you can't be compelled to support speech you disagree with. The fair share fee separates out the basic costs of collective bargaining from the political stuff unions do: lobbying, phone banks for candidates, and your basic thuggery against God and the Flag. That way the nonunion employees can still be charged for the costs of union activities they benefit from, but won't have to pay for "Teachers For Obama" yard signs:
Teachers who, like Friedrichs, have opted out of the union are still represented by it in various contract negotiations, which is why they are required to pay a fee. In California, members pay annual dues that average about $1,000 a year, while non-members pay about $600 to $650 for the agency fee alone.
So Why Would Anyone Object To Paying Their Fair Share?
Friedrichs and her nine co-plaintiffs say they're being oppressed because everything a union does is by its nature political. So even the stuff they may benefit from as a result of collective bargaining, like better health insurance or higher pay, could be something they actually have a sincerely held belief against, and so they can't be forced to pay for it. Or as the lawsuit puts it:
In this era of broken municipal budgets and a national crisis in public education, it is difficult to imagine more politically charged issues than how much money cash-strapped local governments should devote to public employees, or what policies public schools should adopt to best educate children. Yet California compels petitioners to fund a very specific point of view on these pressing public questions.
So yes, the plaintiffs say it violates their free speech rights to have the union help them get higher wages. What if they don't think they deserve higher wages, huh? Essentially, they're saying "Help! Help! I'm bein' oppressed!" every time they deposit that larger paycheck.
How Can Anyone Possibly Answer A Compelling Case Like That?
Gosh, we wouldn't want to force anyone to support speech against their will! Or maybe that's a load of weasel kidneys: In a brief filed in the case, California Attorney General Kamala Harris opposes the suit, arguing everyone in a work unit should pay when everyone benefits from collective bargaining, and the free speech claim is far too broad:
"Negotiations addressing routine employment matters -- procedures for taking leave, for example, or the condition of faculty lounges, or the method for processing employee grievances -- are not 'political'" in the sense the Supreme Court has used the word in other First Amendment settings, she wrote.
In an amicus brief in support of the CTA, a group of labor law professors say the plaintiffs are treating routine aspects of employment as if they were compulsory political speech. They argue this could have absurd ramifications, since, for instance:
“many state pension funds are managed by and invested in private companies” and “the corporations in which public pension plans invest may engage in political speech” that individual workers disagree with. Does that make it unconstitutional for the government to require workers to contribute to their own pensions? Or perhaps it simply forbids pension funds from investing in companies that engage in political speech, a restriction that could endanger the financial viability of the pension fund because it may be unable to put money in the soundest investments?
This Isn't Only About Union Fees, Is It?
My, our questions to ourselves are very perceptive! It's about the long-term rightwing project of dismantling union power wherever possible, especially public-sector unions, which have a far higher percentage of union representation than unions in the private sector. Oh, look! Here is an interactive graph!
In Wisconsin, where Governor Scott Walker restricted the ability of public-sector unions to bargain collectively, essentially taking away motivation for workers to be in unions since the unions can’t represent them in negotiations, membership in the American Federation of State, County, and Municipal Employees (AFSCME) declined to 13,000 members, from 32,000, over the course of three years.
Dang. That's some economic violence inherent in the system, all right.
Say, Are There Also Some Partisan Political Implications Here?
We ask such smart questions! As errebody knows, unions are big contributors to the Democratic Party, and public employee unions like the American Federation of State, County and Municipal Employees (AFSCME) and the American Federation of Teachers (AFT) are among the big ones. And while Friedrichs won't change the rules on unions' political contributions -- the whole point is that those are already separated from the fair share fees, which only cover costs of collective bargaining -- allowing nonunion workers to opt out means more "free riders," less money for the unions overall, and hence budget shifting in order to still be able to negotiate on behalf of workers. And that means less money for Democrats, while Citizens United allows corporations to pump money at Republicans through a firehose.
Gosh, This Lawsuit By 10 Teachers Acting On Their Own Could Have Big Repercussions!
It sure could! Oh, and as in so many precedent-setting cases, while Rebecca Friedrichs is the one with her name on the suit, she is of course a convenient human stand-in for a bunch of interest groups, in this case, the Center for Individual Rights, a conservative law firm specializing in challenging liberal stuff like affirmative action, union rights, and the Voting Rights Act. Is there Koch brothers money going to the CIR? You bet your sweet union thug ass there is!
The lead attorney for the plaintiffs is Michael Carvin, who argued both SCOTUS cases against Obamacare, and also argued for George W. Bush against Al Gore in the Florida Supreme Court during the 2000 recount. Like most big cases, it's not exactly Ms. Friedrichs Goes to Washington.
So Will Unions Get Screwed?
Duh. Or at least probably duh. This is the Roberts Court.
How Badly Will Unions Get Screwed?
Nobody knows. Possibly pretty badly! In the most recent challenge to Abood, in 2014, Justice Samuel Alito seemed really hot to throw out Abood altogether, writing that it "causes administrative headaches as unions distinguish between political and non-political causes." But there's also some speculation that, of all people, Antonin Freaking Scalia might be reluctant to apply the First Amendment to workplace representation, since, as he suggested during arguments in that 2014 case, public employees could be emboldened to whine "Free Speech!" every time they don't get what they want:
Suppose you have a policeman who -- who is dissatisfied with his wages. So he makes an appointment with the commissioner, police commissioner, and he goes in and grouses about his wages. He does this, you know, 10 or 11 times. And the commissioner finally is fed up and tells his secretary, I don’t -- I don’t want to see this man again. Has he violated the Constitution?
The New York Times also points out in the same case, Scalia asked questions sympathetic to the position that fair share fees were needed to prevent free riding.
How Awful Were Monday's Oral Arguments?
Oh, it was ugly, kids, says Ian Milhiser at Think Progress. Maybe forget those hopeful noises about Scalia being open to preserving fair share fees, which now look like wishful thinking:
Antonin Scalia, the justice who seemed most inclined to agree with them prior to oral argument, took a hard turn against them within just a few minutes of argument. Justice Anthony Kennedy, who is normally this closest thing this Court has to a swing voter, appeared to grow increasingly angry with the unions as the argument proceeded. Plus the Supreme Court has already dropped two big hints that it’s ready to cut of a major source of funding for public sector unions. Oral arguments cannot always predict the outcome of the case -- just ask the millions of Americans who are now insured because of Obamacare -- but if they offer any predictive value, a lot of unions are very frightened right now.
Say goodbye to your gravy train, you oppressive unions! If you want some optimism, here's a little from the Atlantic: "A ruling against unions would not kill the labor movement for good, experts say. But it would severely harm it." If the five conservatives on the Court kill off Abood, as seems likely now, public sector unions nationwide will face the same challenges as private sector unions in "right to work" states: They can still negotiate, but their funding is almost certain to drop as more workers choose to opt out of paying fees, resulting in weaker unions and weaker bargaining strength.
Ah well. Now maybe we can get to the really important issues that will improve the economy: firing more public employees and privatizing the public schools.
Doktor Zoom's real name is Marty Kelley, and he lives in the wilds of Boise, Idaho. He is not a medical doctor, but does have a real PhD in Rhetoric. You should definitely donate some money to this little mommyblog where he has finally found acceptance and cat pictures. He is on maternity leave until 2033. Here is his Twitter, also. His quest to avoid prolixity is not going so great.