The Supreme Court sounded the death knell of the union movement today, in a 5-4 vote along ideological lines.
And with the death of public sector unions, the Democratic Party has suffered a body blow as well. The GOP’s blockade of President Obama’s Supreme Court nominee has paid off in spades.
At issue in today’s case of Janus v. AFSCME were government employment contracts that required employees to either join a union or pay an “agency fee.” That arrangement prevented what economists call the “free rider” problem: all employees get the benefits of being represented by a union, so why not keep your money and enjoy them for free? It also prevented multiple unions from trying to represent the same set of employees, promoting what’s called “labor peace.”
Unions, however, do more than negotiate contracts. They lobby politicians, take policy positions, and engage in all sorts of political activity. But what if I disagree with those positions? How, under the First Amendment, can I be forced to subsidize political speech? Thus, following a 1977 Supreme Court precedent, the “agency fee” was limited to that portion of union dues attributable to non-political activity.
Today, the Court flatly overruled that 1977 precedent — and went even further than most court-watchers expected.
In an opinion by Justice Alito, the Court waved away the entire “agency fee” arrangement, holding that even collective bargaining and similarly job-related activities were forms of protected speech, and that compelling someone to subsidize that speech is unconstitutional. In other words, everything the union does is “speech,” and no one can be forced to subsidize it.
Further, Justice Alito wrote, neither the “free rider” issue nor “labor peace” are compelling enough interests to justify abridging an employee’s First Amendment rights. Nor, he added, were several other interests that were alleged in Janus but not in the 1977 precedent: chiefly, that without agency fees, unions would be crippled and ineffective.
Finally, he concluded, even though overturning a precedent requires extreme circumstances – to overcome the doctrine known as stare decisis, meaning “let the decision stand” – and those circumstances are present here. The agency fee arrangement is unworkable, the Court held, because employees have no real way of knowing whether the union’s political/non-political distinctions are legitimate. The unions might not disappear absent agency fees; Justice Alito cited various studies suggested they could endure without them. And anyway, even the 1977 case itself, Abood v. Detroit Board of Ed., misconstrued prior precedents and how free speech claims are to be adjudicated.
Justice Kagan, dissenting on behalf of the court’s four liberal members, warned that overturning Abood “will have large-scale consequences. Public employee unions will lose a secure source of financial support. State and local governments that thought fair-share provisions furthered their interests will need to find new ways of managing their workforces. Across the country, the relationships of public employees and employers will alter in both predictable and wholly unexpected ways.”
The consequences of Janus will be profound.
The American Legislative Exchange Council (ALEC) the network of right-leaning state legislators funded by the Koch Brothers, crowed that Janus is “a victory for free speech and individual rights. Teachers and other public sector members will now have freedom to choose to voluntarily join a union if they decide it will serve their interests, rather than endure compulsory fees to unions that put their own agenda first.”
Wait, so is ALEC the new ACLU? Championing the rights of free speech, even when the speech is unpopular and persecuted?
Hardly. ALEC champions the interests of the powerful who wish not to be constrained by regulation protecting the less powerful. “Limited government, free markets, federalism” is its tagline. The less government, the more opportunity for powerful, wealthy entities like the Koch Brothers to wield that power against workers, poor people, and people currently protected by environmental and health laws.
Janus is a huge step in that direction. When Wisconsin Governor Scott Walker signed his state’s “right to work” law, public sector union membership declined 38 percent. Overall, in “Right to Work” states, non-union membership has tripled. Now, the whole country is a “Right to Work” state.
And without strong unions, pro-business interests like the Koch Brothers just lost their biggest political adversary. Unions, for all their shortcomings, are the infrastructure of the Democratic Party in many states, especially today, when many white working class voters have been tempted by Trumpian populism to vote for their cultural interests but against their economic ones. One study found that right-to-work laws reduce Democratic presidential vote shares by 3.5 percentage points.
Hysterical pundits on Breitbart and Fox News like to demonize George Soros, but the real enemy of the Right isn’t one nefarious philanthropist but millions of lunchbox men and women who understand that tax breaks for the rich only benefit the rich; that protecting worker safety protects workers; that a livable minimal wage enables workers to live.
None of this is rocket science, of course, which is why it doesn’t take a vast left-wing conspiracy to get people to understand it. It just takes a union to band people together and fight for it.
None of this was at issue in Janus. On its surface, the case was indeed about the conflict between employees’ free speech rights and the public interest in having stable unions.
But Janus was a Janus-faced case. Because the real the reason ALEC and organizations like that fought so hard has nothing to do with free speech: Janus was actually the third time in six years that this issue had been heard at the Supreme Court, as the Right brought case after case after case. It has to do with free enterprise, of an Ayn Randian, vulture capitalist variety.
Finally, Janus is yet another vindication of the Republican Party’s unprecedented, unethical, and likely unconstitutional refusal to grant a hearing to President Obama’s Supreme Court nominee, Merrick Garland.
For the fourth time this week (!), the Supreme Court has split 5-4 on a controversial case, in favor of the conservative side. Today, it was unions. Yesterday, it was the travel ban, as well as a less-heralded case about abortion rights. Monday, it was voting rights.
And that’s just a single week. This term has seen over a dozen 5-4 conservative wins which would have been 5-4 liberal wins had Justice Garland been seated as he deserved. In fact, thanks to Janus, you’ll soon be able to draw a direct line from the Garland stonewall to specific Republicans elected thanks to the diminished power of unions.
Sometimes, cheaters win.