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?

Which Side Are You On? Friedrichs Case Poised to Make Public Sector Unions Open Shop in All But Name

Adam Liptak in his story, "Supreme Court Seems Poised to Deal Unions a Major Setback," makes it sound as if open shop in everything but name is the likely outcome of the Supreme Court hearing the Friedrichs v. California Teachers Association case. At issue is whether union members who work in the public sector, a.k.a., government workers, have to pay "agency fees" or "representational fees" to their labor union or whether they can opt out entirely and choose instead to be what is called a "free rider," someone who enjoys all the benefits of union membership without paying any of its costs. (It has been a settled opinion for decades that public sector workers can opt out of paying that portion of their dues that goes directly to support political campaigns, but they cannot opt out of paying their union for representing them in collective bargaining, which is the lion's share of one's union dues.)

The best hope for a victory for the unions had rested with Justice Antonin Scalia, who has written and said things sympathetic to their position. But he was consistently hostile on Monday. 

”The problem is that everything that is collectively bargained with the government is within the political sphere, almost by definition,” he said.

The court’s four liberal members were on the defensive, asking whether there was good reason to overturn a 1977 decision by the court that allowed the fees.

“You start overruling things,” Justice Stephen G. Breyer said. “What happens to the country thinking of us as a kind of stability in a world that is tough because it changes a lot?”

Justice Elena Kagan focused on the practical consequences of a decision in favor of the challengers. 

“This is a case in which there are tens of thousands of contracts with these provisions,” she said. “Those contracts affect millions of employees, maybe as high as 10 million employees.”

Michael A. Carvin, the lawyer for the teachers, emphasized what he said was the limited nature of the case. It was not, he said, an attack on the union’s exclusive representation of all workers. A decision in his clients’ favor, he added, would not affect private employers, who are not subject to the First Amendment. 

Justice Ruth Bader Ginsburg asked whether workers “who paid these fees against their will” were entitled to refunds. 

Mr. Carvin answered that “all we’re asking is for prospective relief.”

The fact that so much attention was devoted to the aftermath of a decision favoring the challengers suggested that at least some members of the court viewed it as a foregone conclusion.

***

Limiting the power of public unions has long been a goal of conservative groups. Even before Monday’s argument, they had reason to be hopeful that their side would prevail in the case.

In 2014, the court stopped just short of overruling a foundational 1977 decision and declaring that government workers who choose not to join unions may not be forced to pay fees in lieu of dues.

In the 1977 decision, Abood v. Detroit Board of Education, the Supreme Court 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.”

Justice Kagan said the 2014 ruling, along with one from 2012, “admittedly expressed some frustration with Abood.” But that was not enough, she said, to justify overruling a 40-year-old precedent.

Mr. Carvin responded that the recent decisions had “undermined the doctrinal underpinnings of Abood.” He said the court had overruled important precedents in similar circumstances in 2010 in the Citizens United campaign finance decision.

And that is an appropriate analogy here -- Citizens United. Friedrichs will likely have an impact that is in the ballpark of the Supreme Court's post-2008-Obama-landslide decision to scrap existing campaign finance law. Fairly quickly, but certainly over time, the number of free riders will grow in public sector unions, diminishing their strength.

Conservatives like the Kochs -- who have provided some financial backing for the outfit, the Center for Individual Rights, that organized the Friedrichs lawsuit -- want to see public sector unions hamstrung because there is far greater union density in the public sector than in the private sector.

Public sector unions are the bedrock of unionism in the United States. Once they are bled out, the next step will to be go after after the large building trades internationals by repealing Davis-Bacon, the federal prevailing wage law. 

All this is happening against the backdrop of increasing income inequality and the post-Great Recession stagnation in wages. The last thing you want to do is weaken the unions. And that is exactly what the conservative majority on the Supreme Court has signaled it will do.

The upside to Friedrichs is that now more than ever it will force unions to engage in the kind of "Which Side are You On?" organizing that they have shied away from for generations. The problem, as can be seen by the number of large internationals, like SEIU, that have already endorsed Hillary, is that the leadership at the top remains conflicted, addicted as they are to big money and "the lesser of two evils," and that's why labor finds itself in its present diminished and endangered state. Hitching their wagon to Hillary, who appears to be headed for a defeat in Iowa, is just another tone deaf bad move.