LAST Wednesday night the Trump administration declared war on America’s public sector unions.
In a brief filed with the Supreme Court, the Department of Justice (DoJ) reversed its position on the constitutionality of mandatory fees for public employees. The DoJ now believes that public sector unions may not charge these ‘fair share’ fees, which support collective bargaining, to non-union members. It urged the court to strike down fair share fees as ‘compelled subsidisation of speech’ in violation of the First Amendment.
Conservative politicians have long dreamed of imposing these ‘right-to-work’ rules on the entire American public sector, and the Supreme Court’s conservative justices have prepared for this moment. In 2018, they’ll almost certainly answer the Trump administration’s prayers and seek to permanently hobble US unions.
The opportunity for the DoJ and the Supreme Court to target unions comes in the form of Janus v. AFSCME, which the justices agreed to hear in September. Bankrolled by the anti-union National Right to Work Foundation, Janus is a direct effort to overturn a 40-year-old landmark decision called Abood v. Detroit Board of Education.
In Abood, the Supreme Court held that public sector unions, which represent government employees like teachers and firefighters, can collect agency fees from non-union workers. The court reasoned that these fees are often necessary to prevent ‘free riding’ non-union employees benefiting from bargaining funded by dues-paying union members.
However, it held that unions could only use fair share fees to fund collective bargaining and could not, under the First Amendment, spend them on ‘political and ideological purposes’. Abood held fast for several decades in the face of a well-funded movement to reverse the decision and enfeeble public sector unions.
But in recent years, the Supreme Court’s right-leaning justices have indicated their eagerness to revisit and overturn the ruling. In 2012, Justice Samuel Alito wrote an opinion for the court criticising Abood as an ‘anomaly’ that ‘represents a remarkable boon for unions.’
Then, in a 2014 majority opinion limiting Abood’s application, Alito lambasted the precedent as a ‘questionable’ and ‘unsupported’ aberration that ‘seriously erred’ in its First Amendment analysis. The justice was obviously laying the groundwork to overturn Abood in the next union case.
The administration argument rests on two premises that are not only conceptually flawed, but also biased against unions themselves. First, the DoJ assumes that the First Amendment flatly prohibits the government from compelling Americans to subsidise speech with which they disagree.
But this happens all the time: Tax revenue, for instance, is frequently used to promote messages that a taxpayer does not endorse, yet nobody seriously believes that taxes are unconstitutional.
If the government imposed a special assessment on teachers and used the funds to promote education policies that some teachers disliked, they would have no First Amendment right to stop paying the tax – even though the state is forcing them to subsidise expression that they oppose.
Why is the constitutional calculation different when the government directs a union to collect fees and negotiate policies? The unspoken assumption seems to be that unions are always partisan and untrustworthy. Second, the DoJ’s description of collective bargaining reflects a profoundly cynical view about the purpose of unions and the rights of workers.
The DoJ insists that negotiations over basic terms of employment – health benefits, overtime pay, pensions – are ‘inherently political’. Really? Most teachers would probably not consider bargaining over the length of their lunch break to be ‘speech on politics’. But that is how the DoJ views every concession granted to public workers.
Under this framework, anti-union employees do not reap the rewards secured by their dues-paying colleagues; rather, they are forced to accept benefits (like better pay) that they reject on political grounds.
As the DoJ now conceives of them, public sector unions are essentially gravy trains that bilk money from the government, and free riders are noble ‘dissenting employees’ who want less generous working conditions. This vision of unions, of course, is fairly common, especially among Republicans. That is why 25 states, most of them right-leaning, have passed ‘right to work’ laws that eliminate fair share fees.
But 22 states and the District of Columbia have retained these fees, and public employees in those jurisdictions tend to have higher wages due to their increased bargaining power.
There is no plausible constitutional argument, and certainly no credible originalist argument, against the constitutionality of fair share fees. And yet, in Janus, the Supreme Court will probably invalidate them, instantly undermining thousands of union contracts for millions of workers across the country.
The Trump administration will deserve much credit for this union-busting coup. It was Trump, after all, who installed the justice who will soon enable this nakedly political ruling. And it is Trump’s DoJ that is helping the court pretend that there is a valid nonpartisan argument against fair share fees. American unions have withstood a relentless assault since their inception.
Trump promised to fight for ‘forgotten’ workers. But he and his man on the bench now stand poised to deliver them a devastating blow. AFL-CIO President Richard Trumka said on Monday: ‘President Donald Trump has once again broken his word by siding with powerful corporations over regular working people.
‘The Trump administration is seeking to abandon decades of settled law in order to take away the basic freedom of millions of working people to have a voice on the job. The US Supreme Court case, Janus v. AFSCME Council 31, could undermine the ability of nurses, teachers and other public workers to negotiate over pay, benefits and workplace safety.
‘America’s labour movement urges Trump to stop backing powerful corporations and start supporting working people. The Janus case is a well-funded and blatantly political plot to use the highest court in the land to further rig the economic rules against everyday working people.
‘The billionaire CEOs and corporate interests behind this case, and the politicians who do their bidding, have teamed up to strike at our freedom to come together in strong unions. The people behind this case simply do not believe we should have the same freedoms they do: to negotiate a fair return on our work.
‘This is terrible for our families and our communities because:
‘• Working people are the solution, not the problem. All across our country, we need to raise our voices for better pay and benefits and quality public services, not find ourselves gagged by billionaires.
‘• Our communities need rising pay, not inequality. Inequality in America is at a record high. Taking away our freedoms to speak and assemble will only make it harder for us to win broadly shared prosperity.
‘Arguing against our freedoms at work is not what working people expect of our government. Actions speak louder than words, Mr. President, and these actions do not support working families as you so often claim.’