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?

McCutcheon v. Federal Election Commission: Lifeline for the Duopoly

For an easy-to-digest synopsis of yesterday's 5-4 McCutcheon v. Federal Election Commission Supreme Court decision check out today's lede unsigned editorial, "The Court Follows the Money," in the Gray Lady:

As a result of Wednesday’s ruling, an individual donor will now be able to contribute as much as $3.6 million per election cycle (the sum of maximum donations to all national and state party committees and a party’s presidential and Congressional candidates). This money can then be funneled to specific campaigns through the use of joint fund-raising committees, effectively nullifying the per-candidate limit. Chief Justice Roberts blithely rejected such a scenario as “speculation,” and he ignored political reality by confining the meaning of corruption to instances of “quid pro quo,” or the direct exchange of money for political favors. 

But the interest of Congress in preventing political corruption has long been “far broader” than merely forbidding bribery, as Justice Stephen Breyer argued in dissent. It includes an interest in controlling influence over and access to politicians.

Nicholas Confessore points out in a helpful think piece, "Power Surge for Donors as Terrain Is Reshaped on Campaign Money," that the McCutcheon ruling will counteract the trend toward super PACS by pushing money back into the parties:

Donors would still be barred from giving more than $5,200 to any one candidate over the course of the 2014 campaign. But the new ruling would allow each donor to contribute that amount to as many candidates as he or she wants, freeing those with the means to pour millions of dollars into candidates and parties. 

Current rules limit each donor to a total of $74,600 worth of contributions to party committees and political action committees, and $48,600 to all federal candidates, enough to permit a donor to make the maximum $5,200 in contributions to as many as nine candidates. But when the Supreme Court decision goes into effect, a single donor will be able to contribute the maximum amount to every candidate in the country, every political action committee, and every party committee, campaign experts say. 

The ruling opens the door for each party’s establishment to reclaim some power from the super PACs and other independent spending groups that are now playing an outsize role in campaigns. Experts said the decision would permit party leaders to form joint fund-raising committees and solicit multimillion dollar checks on behalf of candidates. The House minority leader, Nancy Pelosi, for example, could in theory approach a donor seeking to help Democrats win control of the House of Representatives, and solicit as much as $2.3 million — $5,200 for each Democratic candidate in every House race, plus a contribution to the Democratic Congressional Campaign Committee. 

A donor could also, in theory, give $5,000 per year to every political action committee currently registered with the Federal Election Committee. That would total more than $13 million, versus the $74,600 allowed under the existing aggregate cap. 

Party officials have been effectively prohibited from soliciting supersize checks since Congress moved in 2002 to ban unlimited contributions to party committees, also known as “soft money.” The prestige and financial muscle of party leaders was further eroded by the court’s Citizens United decision in 2010, which led to super PACs, which could raise and spend unlimited amounts of money so long as they did not coordinate with parties or candidates. Super PACs have spent more than $700 million since that decision. 

But the ruling offers a path for party officials to re-establish themselves as kingmakers. And because senior congressional leaders often have the closest ties to big donors, the decision could give them a tool with which to discipline rank-and-file members.

So McCutcheon accomplishes two things: 1) it basically scraps all the Watergate-era Buckley limits designed to combat corruption since now the parties can once again rake in seemingly unlimited soft money contributions and then funnel this money to individual candidates, bypassing the $5,200 limit; and 2) the political parties, the duopoly, increasingly showing signs of obsolescence with the rise of super PACS and groups like the Kochs' Americans for Prosperity, can move back to center stage.

McCutcheon is thus both radical and conservative; it kills off for good the campaign finance reform of the Hippie era while insuring that the Republican and Democratic party system stays in place. In other words, it does not look like we're headed for duopoly disintegration in the near term replaced by a brave new world of 501(c)(4)'s and new political configurations. Huge infusions of cash will keep the cadavers animated for all election cycles on the horizon.

Couple McCutcheon and Citizens United with the Supreme Court's Shelby County v. Holder backdoor scrapping of the preclearance provision of the Voting Rights Act of 1965, and you have the outlines of a system where the rich may exercise the franchise but the poor, the uneducated cannot.

Neo-Dixiecrat Push to Scrap Section 5

This is the key paragraph from Adam Liptak's story today about Wednesday's arguments on the Voting Rights Act of 1965 before the Supreme Court:

Should the court strike down the law’s central provision, it would be easier for lawmakers in the nine states [now covered by a federal preclearance requirement] to enact the kind of laws Republicans in several states have recently advocated, including tighter identification standards. It would also give those states more flexibility to move polling places and redraw legislative districts.

The conservative justices indicated by their questions that they were in favor of scrapping Section 5 of the Voting Rights Act. The problem that they're grappling with is how to turn a neo-Dixiecrat GOP into a majority party. Their first bold move was the fast-tracked Citizens United ruling equating money with speech. Conservatives were frightened by the amount of money Obama raised in small amounts online during the 2008 campaign. But the Super PACs, which resulted from Citizens United, spectacularly underperformed for the neo-Dixiecrat GOP in 2012. Large swaths of the citizenry are immune to attack ads. Certain kinds of people have to be kept from voting. There are various ways to do this -- identification requirements, moving polling locations and limiting their hours of operation -- which were tried by Republican-controlled states. But the Department of Justice intervened in those states covered by Section 5 and told them to stop. This from today's unsigned editorial in the New York Times, Congress’s Power to Protect the Vote:

Congress found that, in general, the problems of voting discrimination were much worse in the covered areas than elsewhere in the United States. A recent study by Morgan Kousser of the California Institute of Technology confirms that: “five-sixths or more of the cases of proven election discrimination from 1957 through 2013 have taken place in jurisdictions subject to Section 5 oversight.” The Justice Department used Section 5 last year to block and change discriminatory voter ID laws in Texas and South Carolina, for example, and to block a discriminatory Florida law that limited early voting.

If the conservative majority votes in a bloc to strike down Section 5 it would do so on the basis that the formula used to determine covered jurisdictions is out of date. Congress would be tasked with updating the formula. This, as Liptak points out, will not happen; hence, a de facto ban:

Should the court strike down the coverage formula when it decides the case, Shelby County v. Holder, No. 12-96, Congress would be free to take a fresh look at what jurisdictions should be covered. But Congress seems unlikely to be able to agree on a new set of criteria, given the current partisan divide, meaning the part of the law requiring federal pre-approval of election changes would effectively disappear.

This is Republican road map for neo-Dixiecrat domination: massive amounts of corporate cash, a gerrymandered permanent majority in Congress and restrictive voting laws.