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.

Signs of Collapse: Non-Enforcement of Federal Election Law, Repeal of Prevailing Wage and the Return of Radical Chic

Something is happening here. When I got off the train after work on Friday the telltale massing of security officers was located at the mouth of the transit station. The underground bus/light-rail train tunnel must be a vulnerable and vital node in the city. Once up on street level I noticed helicopters hovering to the east above Capitol Hill, my neighborhood. The helicopters looked to be stationed over Seattle Central Community College. It was May Day. So I assumed some sort of protest had morphed into a street occupation and/or confrontation with the police.

As I walked up the hill on Pine Street, big black unmarked SUVs with police inside sped by. When I arrived in my neighborhood, the bars were full as usual on Friday evening. People seemed to be going about their business in spite of the noisy gyrations of helicopters overhead. At the grocery store, where I had stopped for weekend provisions, the young checker told me he had been on edge during the day because of rumors that anarchists armed with hammers would attack the supermarket, a local company that had been bought out some time ago by Kroger, a corporate behemoth.

I was going to deliver a mild defense of anarchism, something to the effect that when the state fails and is so completely captured by capital the people need to step in, but I stopped myself. The young checker was about to finish his shift and just wanted to get home. I understood completely because after a long week so did I. Outside the grocery store a cluster of police officials stood on Broadway next to a police van. The noise from the helicopters above blanketed everything.

The problem for the police now, for law enforcement throughout the country, is "radical chic" appears to be back several years after the last Occupy Wall Street encampment was torn down. Popular enthusiasm for protest and confrontation appears to be renewed. Case in point is during that Friday evening walk home after I left the transit center, I passed a young handsome couple very well dressed out on the town for a night out. The guy had on a tie and jacket; the woman, a dress. They both looked hip, not square, and elegant. But the problem for them is that they were out of place in an environment where helicopters were making industrial-strength noise overhead and black Chevy Suburbans packed with cops gunned up and down the street. The young handsome couple seemed indulgent and fragile, more like figurines on a wedding cake. They would have been better off in jeans and kaffiyeh.

That order is collapsing should be beyond dispute at this point. The United States is now committed to perpetual warfare. How long before a political formation arises that addresses that problem is unclear.

The problem for the U.S. homeland is that things are going to get a lot worse before they get better, Two stories in yesterday's paper illustrate this.

First, Eric Lichtblau reports in "F.E.C. Can’t Curb 2016 Election Abuse, Commission Chief Says"
of a mini-Bulworth moment for the chairwoman of the Federal Election Commission Ann Ravel when she says that the commission can no longer enforce federal election law:

WASHINGTON — The leader of the Federal Election Commission, the agency charged with regulating the way political money is raised and spent, says she has largely given up hope of reining in abuses in the 2016 presidential campaign, which could generate a record $10 billion in spending. 

“The likelihood of the laws being enforced is slim,” Ann M. Ravel, the chairwoman, said in an interview. “I never want to give up, but I’m not under any illusions. People think the F.E.C. is dysfunctional. It’s worse than dysfunctional.” 

Her unusually frank assessment reflects a worsening stalemate among the agency’s six commissioners. They are perpetually locked in 3-to-3 ties along party lines on key votes because of a fundamental disagreement over the mandate of the commission, which was created 40 years ago in response to the political corruption of Watergate. 

Some commissioners are barely on speaking terms, cross-aisle negotiations are infrequent, and with no consensus on which rules to enforce, the caseload against violators has plummeted. 

The F.E.C.’s paralysis comes at a particularly critical time because of the sea change brought about by the Supreme Court’s decision in 2010 in the Citizens United case, which freed corporations and unions to spend unlimited funds in support of political candidates. Billionaire donors and “super PACs” are already gaining an outsize role in the 2016 campaign, and the lines have become increasingly stretched and blurred over what presidential candidates and political groups are allowed to do. 

Watchdog groups have gone to the F.E.C. with complaints that probable presidential candidates like Jeb Bush and Martin O’Malley are skirting finance laws by raising millions without officially declaring that they are considering running.

A variety of functions usually handled by a campaign committee, such as expensive bulk mailings, are being offloaded to super PACs, which can raise unlimited amounts of money. The problem is that there is not supposed to be any coordination between candidates' campaign committees and Super PACs. This turns out to be a fictitious problem since there is no enforcement mechanism.

The basic point is the obvious one. You cannot have a democracy with concentrated wealth controlling the political process.

How the plutocratic control of the political process is making itself felt is the feeding frenzy on the corpse of organized labor that is currently underway. This is collapse story number two from yesterday, Monica Davey's "G.O.P. Expands Labor Battle to Laws Setting State Construction Wages." To go along with the raft of new right-to-work legislation is the effort to repeal prevailing- wage at the state level (and then when Scott Walker wins the presidency in 2016, you repeal the Big Kahuna, Davis-Bacon). Once prevailing wage, which provides a union-scale peg for government construction projects, is abolished income inequality will really take off.

Efforts to end prevailing-wage laws are emerging in statehouses around the nation. Opponents say these efforts would lower wages and see them as a new front in a battle by increasingly Republican legislatures to weaken labor unions. Advocates, like Mr. Bosma [House speaker of the Indiana state legislature], say the bills are aimed at sparing the budgets of struggling cities and states through free-market principles, and ending an inconsistent, inflated and sometimes politicized system for calculating what wage should be the standard.

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In West Virginia, where Republicans took control of the Legislature this year for the first time since the 1930s, lawmakers ended the prevailing wage for projects worth $500,000 or less.

In Nevada, where Republicans also newly dominate, lawmakers in March exempted school construction projects from that state’s requirement.

Proposals to repeal such laws entirely have been offered in more than a dozen states, including Michigan and Missouri, as well as Wisconsin, where one conservative lawmaker has called for a vote this week but Republicans appear divided on the matter.

In Illinois, Gov. Bruce Rauner, a Republican newly at the helm of a legislature controlled by Democrats, has called for changes, arguing that from 2002 to 2011 the financially devastated state “overspent by $1.6 billion” on education projects alone because of the state’s prevailing-wage rule.

During the Great Depression, numerous states passed prevailing-wage laws in an effort to prevent companies from offering low bids to the detriment of ordinary workers. The laws, which exist in 32 states as well as on federal contracts, require private contractors to pay workers on public projects wages in line with those earned by people doing comparable work in the same region.

Efforts to repeal the laws have been around for decades, and groups like the American Legislative Exchange Council have included repeal as a model policy for years. But as Republicans have gained power in the states — they control 68 of 98 partisan state legislative chambers, the most in the party’s history — they found new traction on the prevailing wage. 

Though the issue is not explicitly about labor power, unions tend to favor the wage regulations, and opponents of the prevailing wage, which states determine differently, contend that it often amounts to higher, union scale wages. 

So some view ending wage rules as a next goal for those who once were more focused on pressing for laws barring organized labor from requiring all workers to pay union fees or dues. With a flurry of those so-called right-to-work laws enacted recently in parts of the industrial Midwest — states like Indiana, Michigan and Wisconsin — the prevailing wage has taken center stage.

Where is the AFL-CIO in all of this? Nowhere. Well, that is not true. The AFL is with the Democrats. That is the extent of the AFL's game plan -- elect Democrats. But Democrats are proving incapable of defending laws that have been around for generations.

New Avengers #30

Last Sunday I hit a stride and read somewhere around ten issues of Jonathan Hickman's New Avengers. For almost two years now Hickman has been plotting the story of the extinction of all life, not just in our universe but in universes throughout all dimensions, the multiverse. This multidimensional pan-universal extinction is triggered when one Earth from one dimension collides with another Earth from another dimension at an incursion point.

Most of the action in the title to date has been superheroes, the Illuminati,  rushing around weighted down with the moral quandary of having to commit genocide by destroying the intruding, non-Earth-616 planet before it collapses both.

On this day, the day that Hillary Clinton announces her candidacy for President of the United States, collapse is an appropriate topic. The Democrats are in a state of denial so extreme it approaches brain death. Most deep-blue Democrats when pushed will acknowledge that Hillary is not the best candidate -- Elizabeth Warren is most often sited as a preference -- but they don't see a way around Hillary's name recognition and deep pockets. So Democrats plan to sit tight and hope for the best. In the meantime, the tune that is being whistled as the Democratic Party drives past the graveyard is that Hillary will be able to mobilize and deliver to the polls the "Obama coalition" -- blacks, youth, Latinos.

That's not going to happen. The only thing that might save Hillary's bacon, assuming a dark horse like Jim Webb doesn't get traction and trounce her in the primaries, as Barack Hussein did in 2008, is if the Republican primary is so chaotic and vicious with billionaire funders engaged in mutually assured destruction that it deliveries up a terminally wounded standard bearer, a la Mitt Romney in 2012.

Right now let's assume that both the Ted Cruz clown car and the Marco Rubio daydream don't survive long after Iowa, New Hampshire and South Carolina -- granted, this is a large assumption -- and the race for the GOP nomination boils down to Scott Walker vs. Jeb Bush. I think either one beats Hillary.

Then what are we looking at? I think if it is Walker we'll see the repeal of Davis-Bacon. And with the loss of federal prevailing wage, there will be an even more pronounced spike in income inequality. Labor unions will become an almost non-factor in national politics. Union density is already so low, around 11%, one has to go all the way back to before the U.S. entered World War One to find a similar level.

Historians will tell you: When inequality spikes, societies fracture and collapse. That is what Hillary's candidacy augurs.

And we haven't even discussed the rapid disappearance of the Earth's ice. The April Harper's had a terrific and terrifying story by Gretel Ehrlich, "Rotten Ice: Traveling by dogsled in the melting Arctic." The Greenland Inuit are finding it increasingly difficult to hunt because so much of the ice is weak and in retreat. Many subsistence hunters are committing suicide.

So Hickman's New Avengers tale of collapse, genocide and extinction is timely and should find a receptive audience. What I particularly like about issue #30 is the art of Dalibor Talajic. (You will find eight scans below. Alan Davis is the cover artist, found in the scan at the top of the post.)

Talajic's work reminds me of the great Wally Wood and the work he did on the early Daredevil, with its heavy inks of the horror comics of the 1950s but in a superhero setting -- very appropriate for Hickman's epic of the death of the multiverse.