In Slate Mark Joseph Stern is bitter about a case about to be decided by SCOTUS about the old problem of free-riding on union efforts:
On Monday, the Supreme Court heard arguments in Janus v. AFSCME, a case designed to let the court’s five Republican appointees kneecap the Democratic Party. Everything about Janus reeks of illegitimacy. The legal claim is laughable, the outcome preordained; even the ostensible plaintiff, Mark Janus, is a puppet. At a recent event, Janus revealed that he does not understand the case at all and in fact supports collective bargaining but incorrectly thinks his union fees are supporting political campaigns. His lawyers seem to have lied to him—much like the court will soon lie to us in proclaiming that the First Amendment somehow prohibits the agency fees at issue in this case. Don’t believe it. The conservative justices can dress up their gibberish in whatever legalese they wish. The reality will remain that Janus is a partisan vehicle designed to serve partisan goals, carried across the finish line by five justices who might as well admit that the Constitution has nothing to do with it.
The background of this deeply cynical case is straightforward. In 1977, the Supreme Court rejected the exact argument being made in Janus. Its decision, Abood v. Detroit Board of Education, involved a virtually identical challenge to agency fees in public sector unions as compelled political speech. These dues, also known as “fair share” fees, support the cost of collective bargaining. Unions are prohibited from using this money to support political activity, like campaigns and candidate contributions. The Abood court found that these fees—meant to prevent “free riders” from benefiting from union negotiations without having to subsidize them—do not violate the First Amendment, because they do not compel political speech.
Associate Justice Anthony Kennedy, upon whom liberal hopes often hang, seems to have dealt himself a black eye on this one during arguments:
In light of this unseemly background, you might expect all of the justices to shy away from the politics of the case. But Justice Anthony Kennedy embraced them head-on in a series of jaw-dropping exchanges. The first arose after Illinois Solicitor General David Franklin asserted that his state has an interest in “being able to work with a stable, responsible, independent counterparty” that “can be a partner with us” in contract negotiations. A look of disgust spread across Kennedy’s face, and he barked at Franklin:
It can be a partner with you in advocating for a greater size workforce, against privatization, against merit promotion, for teacher tenure, for higher wages, for massive government, for increasing bonded indebtedness, for increasing taxes? That’s the interest the state has?
He reveals his failure to keep up with an admittedly large number of issues[1] – and, in fact, issues which are, at best, tangential to the case. That is, decisions should be rendered from settled law and the Constitution, not from projected outcomes. And, I should note, some of those outcomes are desirable. Does Justice Kennedy really believe that a tenured teacher, experienced in both subject and educational pedagogy, is inferior to some fresh out of school teacher?
Really? This would be a condemnation of our children to sub-standard education.
The issues cited by the Associate Justice, when they are problems, can be resolved without knifing the baby.
All that said, the unions had better begin planning on how to survive in this new world, assuming none of the conservative break ranks (I always hold my breath for the Chief Justice). I think their best (and perhaps most obvious) approach comes from this Steve Benen observation:
And what happens if/when AFSCME loses this case in another 5-4 ruling? Millions of public-sector workers will be able to opt-out of their agency fees, which in turn would further weaken unions, which in turn would undermine workers’ ability to negotiate for better benefits.
The union appeal should be if you don’t join the union and help fund our efforts at collective bargaining, your wages will not rise, they may even fall. Everytime you think you’re saving money by not joining us, you’re endangering your future instead.
And unions might benefit from offering a second membership status, one with reduced dues that are guaranteed to only be used for collective bargaining and, perhaps, paying for the officers of the union.
But I think bitter whining about Janus will serve only to alienate potential members of unions, because those folks who resented paying dues, even reduced dues, had a point. In the Land Of The Free, they were forced to remit dues to an organization which may have engaged in activities they found repulsive.
And the unions had a point – piggybacking is a problem.
Sometimes freedom for imperfect humans is tough.
1For for the record, privatization has proven to not be the panacea envisioned by the libertarians, as they do not understand the importance of process optimization and how it one sector’s optimization is another sector’s disaster (see for-profit prisons for a stark example); merit promotion need not be negatively impacted by unions; tenure exists to retain talented people when it’s properly implemented; teacher tenure I addressed above; higher wages are hardly a negative, when earned, in that they help the economy keep moving along (see the recent research on raising the minimum wage and how that has affected the economy); and the rest is financial without examining the context of “skilled labor” (and it can be very skilled) is very important – I don’t want enthusiastic but unskilled laborers desperately trying to solve problems in government.
And while we’re sitting here, Associate Justice, shall we begin to discuss the various indignities (including the Pinkertons, of course) laborers have suffered when unprotected by the unions? If you’re going to sling shit, you’d better be willing to accept it as well.
