Here’s How a Supreme Court Decision To Gut Public Sector Unions Could Backfire on the Right

Shaun Richman February 8, 2018

Protesters stand outside the Wisconsin State Capitol on March 9, 2011 in response to the passage of Governor Scott Walker's Act 10 bill curbing collective bargaining rights. An anti-union decision in the upcoming Janus v. ASFCME case could ironically expose the Act 10 legislation to legal challenges.

Janus v. AFSCME, which begins oral argu­ments on Feb­ru­ary 26, is the cul­mi­na­tion of a years-long right-wing plot to finan­cial­ly dev­as­tate pub­lic-sec­tor unions. And a Supreme Court rul­ing against AFSCME would indeed have that effect, by ban­ning pub­lic-sec­tor unions from col­lect­ing manda­to­ry fees from the work­ers they are com­pelled to rep­re­sent. But if the Court embraces the weaponiza­tion of free speech as a cud­gel to beat up on unions, the pos­si­bil­i­ty of oth­er, unin­tend­ed con­se­quences is begin­ning to excite some union advo­cates and stir fear among con­ser­v­a­tive con­sti­tu­tion­al scholars.

The rul­ing could both wild­ly increase work­ers’ bar­gain­ing pow­er and clog the low­er courts with First Amend­ment chal­lenges to rou­tine uses of tax­pay­er mon­ey. At a min­i­mum, it has the poten­tial to turn every pub­lic sec­tor work­place dis­pute into a con­sti­tu­tion­al con­tro­ver­sy — and one Mid­west local is already lay­ing plans to max­i­mize the chaos this could cause.

Toward labor’s bill of rights

From the ear­li­est court deci­sion deal­ing with work­ers’ protest activ­i­ty — the 1806 Cord­wain­ers Tri­al in Philadel­phia – courts have stren­u­ous­ly avoid­ed apply­ing the First Amend­ment to unions. Instead, con­ser­v­a­tive courts treat­ed unions as crim­i­nal con­spir­a­cies that inter­fered with employ­ers’ prop­er­ty and con­tract rights. 

I have been argu­ing that unions and their allies should be chal­leng­ing the most unequal aspects of labor law as vio­la­tions of our con­sti­tu­tion­al rights. Cur­rent­ly, employ­ers in the pri­vate sec­tor have a legal right to force employ­ees to attend manda­to­ry anti-union pre­sen­ta­tions, on penal­ty of fir­ing. Work­ers can also be fired for mak­ing dis­loy­al” state­ments, even in the course of oth­er­wise pro­tect­ed con­cert­ed activ­i­ty. Mean­while, the gov­ern­ment has restrict­ed the scope of issues that unions can legal­ly com­pel employ­ers to bar­gain over. 

All of these prac­tices are vul­ner­a­ble to First Amend­ment chal­lenges as gov­ern­ment restric­tions of work­ers’ speech. They become more vul­ner­a­ble if the Supreme Court rules in Janus that every inter­ac­tion that a union has with a gov­ern­men­tal sub­di­vi­sion is inher­ent­ly political.

Even more vul­ner­a­ble are anti-union laws in the pub­lic sec­tor. Take Scott Walker’s Act 10, which for­bids unions from mak­ing bar­gain­ing pro­pos­als over any­thing oth­er than wages that don’t exceed the cost of liv­ing. Or the New Jer­sey case law that for­bids teach­ers unions from even propos­ing restric­tions on class size. How are those not explic­it restric­tions on work­ers’ speech?

The most com­mon objec­tion to this kind of think­ing on the Left is that a judi­cia­ry that could buy such a craven argu­ment as Janus will refuse to take the prece­dent to its log­i­cal con­clu­sion and shame­less­ly wav­ing away work­ers’ free speech rights. That may be true, but there is a decent chance that the next cou­ple of fed­er­al elec­tions could bring a blue wave” that will alter the ide­o­log­i­cal make-up of the courts for decades. Janus could hand new lib­er­al majori­ties a roadmap for restor­ing a legal bal­ance of pow­er between cor­po­ra­tions and work­ers. It’s enough of a pos­si­bil­i­ty that con­ser­v­a­tive legal schol­ars have begun pay­ing atten­tion to the case, and they see the poten­tial per­il for their cause.

Every work­place dis­pute, a con­sti­tu­tion­al controversy

Ami­cus briefs in the Janus case have been rolling in since the sum­mer. These briefs are filed by schol­ars and orga­ni­za­tions who are not par­ties in the case, but who nev­er­the­less have strong opin­ions about its out­come. They may (or most like­ly may not) be read by the jus­tices, but they could influ­ence ques­tions and oral argu­ments at the hearing.

Most of the ami­ci have been from the usu­al sus­pects. Right-wing think tanks are spout­ing the same tired clichés and intel­lec­tu­al­ly bank­rupt argu­ments. Union advo­cates ques­tion the stand­ing of the plain­tiff to even mount a First Amend­ment claim, argue in favor of respect­ing long-set­tled prece­dent, or — in a new argu­ment — sug­gest treat­ing agency fees as a kind of tax .

But two briefs stand out, both for what they say and for who is say­ing it.

One brief, filed by influ­en­tial right-wing lib­er­tar­i­an ide­o­logues Eugene Volokh of UCLA and William Baude of the Uni­ver­si­ty of Chica­go, actu­al­ly argues for strength­en­ing the 40-year-old prece­dent that Janus aims to over­turn. The 1978 Abood deci­sion was wrong, they argue, to moot the ques­tion of whether work­ers com­pelled to pay their fair share for union rep­re­sen­ta­tion might have a legit­i­mate First Amend­ment objec­tion to how a union might spend any por­tion of their fees. That opened the door, Baude and Volokh say, to tax­pay­ers mak­ing line-by-line objec­tions to how the gov­ern­ment spends its mon­ey. Just as non-union mem­bers may find many rea­sons to dis­agree with a pub­lic union’s speech, there are count­less grounds to object to oth­er speech sup­port­ed by gov­ern­ment funds,” they write.

Point­ing to gov­ern­ment pro­pa­gan­da urg­ing mil­i­tary enlist­ment and pur­chase of war bonds, the schol­ars note that there has nev­er been an option for tax­pay­ers to opt out of fund­ing such prac­tices with which they may dis­agree, nor even any kind of equal time” right of rebut­tal. A rul­ing for the plain­tiff in Janus could tug at the loose threads of the very notion of a com­mon inter­est in government.

Anoth­er ami­cus, filed by law pro­fes­sors Charles Fried of Har­vard and Robert C. Post of Yale, warns of under­min­ing the prece­dent set in the 2006 Garcetti v. Cebal­los. That deci­sion gave pub­lic sec­tor employ­ers the broad dis­cre­tion they need to man­age their work­places” by per­mit­ting them to com­pel employ­ees to com­ply with direc­tives they find polit­i­cal­ly objec­tion­able. Rul­ing in favor of Janus, they warn, would there­fore threat­en to trans­form every work­place dis­pute into a con­sti­tu­tion­al controversy.”

Fried served as Solic­i­tor Gen­er­al under Ronald Rea­gan, so his brief like­ly car­ries more water with the con­ser­v­a­tive jus­tices than pro-union argu­ments for sta­tus quo. Fur­ther­more, swing Jus­tice Antho­ny Kennedy wrote the major­i­ty deci­sion in Garcetti, so he would pre­sum­ably take inter­est in how the Janus case could blow his work up. 

A lot of time and mon­ey and energy

One local union in the Mid­west is champ­ing at the bit to turn every dis­agree­ment they have with the boss­es into a con­sti­tu­tion­al con­tro­ver­sy. A Jan­u­ary blog post by the Coun­try­side, Ill.-based Oper­at­ing Engi­neers Local 150, titled, Union Busters Set Them­selves Up for Janus Back­fire,” was wide­ly cir­cu­lat­ed in #1u social media cir­cles. In it, the union eyes over­turn­ing the laws that have made pub­lic-sec­tor bar­gain­ing ille­gal in many juris­dic­tions. It also sug­gests that work­ers should be able to opt out of pay­ing for their pen­sion funds’ lob­by­ing expens­es and tax­pay­ers opt out of fund­ing munic­i­pal lob­by­ists (the Amer­i­can Leg­isla­tive Exchange Coun­cil (ALEC), for exam­ple, receives indi­rect sup­port from many tax­pay­er-fund­ed organizations.)

While the gaunt­let thrown down by Local 150 was cer­tain­ly excit­ing for the few min­utes it took to read their fan­tas­ti­cal plan to make utter chaos out of a post-Janus world, many read­ers were left won­der­ing, Are these guys for real?

We’re going to imme­di­ate­ly respond by fil­ing suits to say these laws are uncon­sti­tu­tion­al,” con­firms Local 150 pres­i­dent Jim Sweeney. Maybe we get screwed again, but we’re going to put cor­po­rate pow­ers in a posi­tion where they’re forced to explain why work­ers should only have free speech when it serves them.” So, file that answer under: Hell to the yes.

Local 150 has a track record of push­ing the enve­lope on legal argu­ments in defense of unions. They’re the union that filed Sweeney vs. Pence, a fed­er­al court chal­lenge to Indiana’s right-to-work” law. Although ulti­mate­ly unsuc­cess­ful, it result­ed in a strong dis­sent­ing opin­ion from Chief Judge Diane Wood that forc­ing unions to spend resources on non-mem­bers with­out com­pen­sa­tion is an uncon­sti­tu­tion­al tak­ing” under the Fifth Amend­ment. That has become the legal argu­ment that could over­turn right-to-work” laws around the coun­try, with sev­er­al cas­es wend­ing their way through fed­er­al cir­cuits at this very moment.

The union has already sent a for­mal demand let­ter, chock full of legal cita­tions, to the Illi­nois Munic­i­pal Retire­ment Fund. In it, they com­plain that their mem­bers’ manda­to­ry 4.5 per­cent retire­ment con­tri­bu­tions are going towards Bank of Amer­i­ca lob­by­ing and demand to opt out. 

More let­ters are on the way. Local lead­ers are hop­ing to trig­ger a few rounds of pan­icked, WTF?” phone calls to Illi­nois Gov. Bruce Rauner and oth­er Janus cheerleaders.

If enough unions fol­low Local 150’s lead and make enough hay out of Janus — or even pose a cred­i­ble threat to do so — don’t be sur­prised if more con­ser­v­a­tive jurists rethink their strategy.

Shaun Rich­man is an In These Times con­tribut­ing writer and the Pro­gram Direc­tor of the Har­ry Van Ars­dale Jr. School of Labor Stud­ies at SUNY Empire State Col­lege. His Twit­ter han­dle is @Ess_Dog.
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