The Eminent Libertarians Who Might Save Public Sector Unions

Feb 2011
15,811
5,448
Boise, ID
#1
The Eminent Libertarians Who Might Save Public Sector Unions
The Intercept
Rachel Cohen
Feb. 2, 2018


The Supreme Court will hear arguments this month in a case challenging the constitutionality of so-called agency fees, payments that workers represented by a union must pay if they do not wish to be dues-paying members. Conservatives have been crusading against these fees for years on First Amendment grounds, and with Justice Neil Gorsuch on the bench, the labor movement’s odds seem grim.

But last month, unions got a surprising lifeline from an unlikely friend: Two prominent conservative legal scholars filed an amicus brief in Janus v. AFSCME, Council 31 — the case before the court — urging the justices to uphold a 1977 decision that ruled the agency fees constitutional.

(snip)

“Compelled subsidies of others’ speech happen all the time, and are not generally viewed as burdening any First Amendment interest,” they write. “Just as non-union members may find many reasons to disagree with a public union’s speech, there are countless grounds to object to other speech supported by government funds. Many people undoubtedly disagree with a great deal of public and private speech funded by taxes or other compulsory payments. There is, however, no First Amendment interest in avoiding those subsidies.”

In other words, the government regularly compels taxes and uses that money to pay for things that taxpayers may politically disagree with, and these union fees should be treated no differently. Volokh and Baude cite public school curriculum and crisis pregnancy centers as two common examples. They argue it’s well within the government’s authority to compel their employees to pay fees for a governmental interest – in this case, maintaining labor peace – even if that money may subsidize things that some personally object to.
While I personally would like to see public unions, as they currently function, disappear from the face of the Earth, I am concerned that this argument concerning free speech doesn't land. I don't agree with the attempt to liken union dues withheld from employees' net pay to taxes, because it takes a huge leap to say that governments agreeing to fire whichever of their employees unions say they must fire is therefore part of government's taxing power. However, employers, including government and other public employers, can require participation in certain job-related benefits. You can't always opt out of the benefit package government offers or go a la carte style with them and pick and choose what you want and what you don't. Government and other public employers have set compensation several aspects of which are take-it-or-leave-it, with individual employees having no say other than their right to refuse the job over it.

In fact if Janus prevails, I have a hard time understanding how that decision is not precedent-setting or doesn't spill over to things like public pension contributions. Participation in those programs is mandated (if it weren't, both the young as well as employers would want to opt out to avoid the unfunded liabilities created by their predecessors). If you want to accept a benefited government job, it's often the case that some percentage of your gross pay will be withheld and sent to a retirement system that includes a pension fund. If you don't like it, the choice is yours to accept the job and participate in the retirement program, or not accept the job. But you don't get to individually choose to take the job but opt out of that program. The employer made the decision to participate in that retirement system, which goes hand in hand with compulsory contributions. It doesn't matter if you want to be in it or not, or whether you agree with how it's managed or not. The employer holds the power to agree to it and subject the employees to the terms of participation, accepting both the costs and benefits, whether they like it not. Is that a free speech issue too?

Similarly, the employer has to make the decision and agree to be the union's financial enforcer. That's what a security clause is, and the only thing Right To Work laws do is make those clauses illegal. As such, part of some positions' pay is withheld and sent to a union. The employee that accepts that job has no choice in the matter, other than to quit or not accept the job. The employer and a third party (whether a union or a state pension fund) negotiate their terms and conditions and the employee gets whatever the other two decide in a closed door meeting. Now, maybe employees should be able to opt out and withhold contributions the moment they disagree with what the union is doing. That seems fair. But then why shouldn't employees be able to similarly opt out of contributing to pensions that have unfunded liabilities because they disagree with how that money is managed?

The uncomfortable reality (for both unions as well as public employers) is that unions have no power to unilaterally impose their security clause onto public employers. They require the employers to fully agree and be willing to do the union's financial bidding. Public employers are voluntarily agreeing to subject their employees to union security clauses. The AFSCME side of the Janus v. AFSCME case basically makes the union security clause (which unions desperately want and employers typically don't) nonetheless the employer's prerogative to have or not have in the contract. Janus therefore might as well be bringing his case against his own employer, not the AFSCME. By unions' own arguments, they are portraying themselves as practically bystanders in all this. Do they ask for and demand the security clause? Yeah. But it's ultimately the employer that has the power to agree to it or not.

This entire argument against Janus attempts to turn the spotlight of criticism off of unions and instead back around onto public employers, which ultimately means the people themselves, and basically asks them to look in the mirror and ask themselves why they keep agreeing to do the union's financial enforcement on its behalf. They don't have to, but they do. In every non-RTW state in the country, they willingly agree to keep doing this. Why?

I could definitely imagine Janus failing, in light of all this, with Kennedy or Roberts pulling the surprise.
 
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Sep 2014
2,376
535
Barsoom
#2
I believe the SEIU will lose as they would have lost with Friedrichs v. California Teachers Association (2016) and Abood v. Detroit Board of Education (1977) would have been overturned if Scalia had not died. With Gorsuch on the court this seems to be the likely outcome.
 
Feb 2011
15,811
5,448
Boise, ID
#3
I believe the SEIU will lose as they would have lost with Friedrichs v. California Teachers Association (2016) and Abood v. Detroit Board of Education (1977) would have been overturned if Scalia had not died. With Gorsuch on the court this seems to be the likely outcome.
This is AFSCME, not SEIU, but what difference does it make? Everyone seems to agree with you on the likely outcome, even the AFSCME President.

But there is a case to be made that if this is a fundamental free speech issue, how is it that other mandatory benefit programs that are part of government jobs (e.g. retirement/pension programs) not a free speech issue?
 
Sep 2014
2,376
535
Barsoom
#4
This is AFSCME, not SEIU, but what difference does it make? Everyone seems to agree with you on the likely outcome, even the AFSCME President.

But there is a case to be made that if this is a fundamental free speech issue, how is it that other mandatory benefit programs that are part of government jobs (e.g. retirement/pension programs) not a free speech issue?
From a purely constitutional perspective, this is government compulsory speech and government forcing individuals to subsidize an entity's speech.
 
Feb 2011
15,811
5,448
Boise, ID
#5
From a purely constitutional perspective, this is government compulsory speech and government forcing individuals to subsidize an entity's speech.
Unions are resting their entire case on the idea that it is actually governments and other public sector employers that are compelling the payment to unions, not the unions themselves. Employers compel payment to unions by voluntarily agreeing to security clause language unions plug into their contracts.

If it is ultimately governments and related public-sector employers compelling the payment, then it is not that crazy to consider taxes another type of compulsory payment. Of course taxes are compulsory payments, and the way tax revenues are spent is going to be on things that are political in nature, and with which many people probably disagree. If that is a free speech violation, then there can be no taxes.

But even if you don’t take it that far, government employers participate in mandatory retirement benefit programs whereby benefited positions are compelled to participate in those programs. They don’t get to opt out and say “no thanks just pay me cash.” If forced union dues, which are ultimately enforced by the employer, not the union, are an are infringement on free speech, I have a hard time seeing how state pension systems are not a similar infringement.

I admittedly want compulsory union dues to be illegal, and I am no constitutional lawyer, but if the Supreme Court could justify compelling payment to a private health insurance company under Obamacare, citing government taxing power, I could certainly see continuing to allow public employers to compel payment to unions. I don’t think it’s right, but there are numerous other ways in which compulsory payments are in force and have been upheld, including by the Supreme Court.

If Janus fails, which I am honestly starting to suspect it could, then it will be up to the people themselves and their elected legislatures to stop putting up with this shit. They have had the full ability to stop tolerating security clauses at the state level and all the way down to the individual bargaining table level, all along. But public sector negotiators continue bowing to unions’ demand for security clauses. Every single employer in the nation can be Right To Work. All it requires is for the public agency’s negotiator to say no to that clause.
 
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Sep 2014
2,376
535
Barsoom
#6
Unions are resting their entire case on the idea that it is actually governments and other public sector employers that are compelling the payment to unions, not the unions themselves. Employers compel payment to unions by voluntarily agreeing to security clause language unions plug into their contracts.

If it is ultimately governments and related public-sector employers compelling the payment, then it is not that crazy to consider taxes another type of compulsory payment. Of course taxes are compulsory payments, and the way tax revenues are spent is going to be on things that are political in nature, and with which many people probably disagree. If that is a free speech violation, then there can be no taxes.

But even if you don’t take it that far, government employers participate in mandatory retirement benefit programs whereby benefited positions are compelled to participate in those programs. They don’t get to opt out and say “no thanks just pay me cash.” If forced union dues, which are ultimately enforced by the employer, not the union, are an are infringement on free speech, I have a hard time seeing how state pension systems are not a similar infringement.

I admittedly want compulsory union dues to be illegal, and I am no constitutional lawyer, but if the Supreme Court could justify compelling payment to a private health insurance company under Obamacare, citing government taxing power, I could certainly see continuing to allow public employers to compel payment to unions. I don’t think it’s right, but there are numerous other ways in which compulsory payments are in force and have been upheld, including by the Supreme Court.

If Janus fails, which I am honestly starting to suspect it could, then it will be up to the people themselves and their elected legislatures to stop putting up with this shit. They have had the full ability to stop tolerating security clauses at the state level and all the way down to the individual bargaining table level, all along. But public sector negotiators continue bowing to unions’ demand for security clauses. Every single employer in the nation can be Right To Work. All it requires is for the public agency’s negotiator to say no to that clause.
Oral arguments are soon. Maybe a little light will be shed.
 
Feb 2011
15,811
5,448
Boise, ID
#7
Good commentary here: Government unions are in deep trouble. And they have themselves to blame.

A few zingers:

The plaintiff’s contention, however, is that the court misunderstood the issue in the first place: There’s no line between a public-sector union’s political activity and collective bargaining, since bargaining with the government affects taxes, spending and other public policies — which are inherently political.

Over the past four decades, unionism has made life better for many public employees. It has also made state and local government bigger, costlier and more complex — and more beholden, politically, to its own workforce.

Fittingly, Janus pits a union critic against AFSCME’s Illinois chapter — that is, a famously aggressive, and powerful, union in a blue state where public-sector labor costs, especially for pensions, have created a seemingly permanent financial crisis.

They should look in the mirror, too. Automatic dues are a mixed blessing for any union, since they relieve leaders from the responsibility to persuade rank-and-file members of the union’s value.

A recent survey by AFSCME of its 1.6 million members found that only 35 percent of them would definitely pay dues if not required to do so. Paid union membership plunged in Wisconsin after Walker’s reforms.