Janus: Beginning of a Real Labor Party in the U.S.?

In "Key Voice Is Silent in Supreme Court Case on Unions" Adam Liptak provides the write-up of the Janus arguments before the Supreme Court yesterday:

WASHINGTON — A crucial voice was silent at Supreme Court arguments on Monday in a case that could deal a sharp blow to public unions. Justice Neil M. Gorsuch, who almost certainly holds the decisive vote, asked no questions, leaving some doubt, if only a glimmer, about whether he would join the court’s conservative majority to rule that forcing workers to support public unions violates the First Amendment.

Justice Gorsuch generally votes with the court’s conservatives, and he is likely to do so in this case. But his silence during the argument meant that observers knew no more about his thinking by the time it ended than when it had begun.

I took it the opposite way, proof that it is a done deal. Gorsuch kept his mouth shut because it is broadly accepted that his appointment to the court was predicated on his support for overturning Abood:

The court’s more liberal members said that states should have broad leeway in managing public workplaces. They added that a decision against the unions would require overruling a 40-year-old precedent, striking down more than 20 state laws, creating confusion about thousands of union contracts and disrupting the lives of millions of workers.

“I don’t think that we have ever overruled a case where reliance interests are remotely as strong as they are here,” Justice Elena Kagan said.

A decision overruling the precedent would conclude a decades-long political and legal campaign by conservative groups aimed at weakening public-sector unions. Those unions stand to lose fees from workers who object to the positions the unions take and from those who simply choose not to join while benefiting from the unions’ efforts on their behalf.

Justice Ruth Bader Ginsburg reflected on the consequences of ruling against the union in the case before the court. “It drains it of resources that make it an equal partner” with the government in negotiations, she told William L. Messenger, a lawyer for Mark Janus, an Illinois child support specialist who objected to positions taken by his union in negotiations. “And then you’ll have a union with diminished resources, not able to investigate what it should demand at the bargaining table, not equal to the employer that it faces.”

Near the end of the argument, Justice Sonia Sotomayor said the case represented an existential threat to the labor movement. “You’re basically arguing, ‘Do away with unions,’ ” she told Mr. Messenger.

The case was a challenge to an Illinois law that requires government workers who choose not to join unions to “pay their proportionate share of the costs of the collective bargaining process, contract administration and pursuing matters affecting wages, hours and other conditions of employment.” More than 20 states have similar laws.

The Supreme Court ruled that such laws are constitutional in Abood v. Detroit Board of Education, a foundational 1977 decision that made a distinction between two kinds of compelled payments. Forcing nonmembers to pay for a union’s political activities violated the First Amendment, the court said. But it was constitutional, the court added, to require nonmembers to help pay for the union’s collective bargaining efforts to prevent freeloading and ensure “labor peace.”

We have very few fair-share payers in my union. Whether and how much this changes once the court rules in favor of Janus remains to be seen.

Noam Scheiber and Kenneth Vogel penned an excellent article, "Behind a Key Anti-Labor Case, a Web of Conservative Donors," about the principal conservative financial backers of the assault on unions. Not only is there the legal attack, but there is also the outreach effort to rank'n'file members prompting them to opt out:

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, said the foundation avoided short-term tactical considerations in its giving. But he 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.)

This is the real problem. Most union members, even the virulently conservative ones, are satisfied leaving well enough alone. They might grumble about the union, but they don't want to be seen by coworkers as free riders. Suddenly if millions of dollars are being spent to organize them to leave the union, that's a different story. The Walker attack on unions in Wisconsin had a devastating impact:

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.

There is no way to sugarcoat this. There is going to be loss and disruption. But if there is a silver lining here it is that now shop-floor organizing is going to be unavoidable for public-sector unions. Regular people are going to have claim an ownership stake in their union locals rather than being passive fee-for-service consumers. Otherwise the gravy train gets derailed.

Another potential positive -- this is more of a long shot -- is that organized labor might start asking more of the Democratic Party. If the Democrats can't prevent Doomsday from arriving, why pledge allegiance? Maybe after weathering the worst that the right can muster a shrunken but hardened union movement can launch a real Labor Party.

That's the question the McResistance needs to be asking. The Democrats have failed to deliver on DACA. They are about to fail to deliver on gun safety. (I don't think Dems in congress are even talking about an assault weapons ban.) They have been unable to protect public-sector unions from right-to-work. What is the point of the Democratic Party?