No, it's not hyperbole. If, as expected, Judge Alito (arguably the most anti-labor of the five ideologues that currently comprise what pundits blithely characterize as the Supreme Court's "conservative majority") issues the opinion in the case of Harris v Quinn on Monday, public sector unions such as the SEIU and AFSCME may very well be wiped out and with them, one of the Democratic Party's primary sources of financial support and GOTV efforts.
This is just the type of complicated case that will make a Beltway Reporter's eyes glaze over and that the public at large will not understand, which is one of the reasons why Labor is fearful that the Court's messenger will be Alito and that the ruling will be bad--very bad. If you think the Hobby Lobby decision will be the big news to watch Monday, well, if you're a Democrat, this is the decision to watch.
The case, Harris v. Quinn, is about the constitutionality of "agency fees" charged by public sector unions to all workers in a unionized setting, even non-union members. These fees are essential to their operation.A Democratic Party bereft of substantial union support, with no one to turn to but Wall Street. If you think the Party is too cozy with Wall Street now, imagine what that would be like. Or if you want to enter the realm of the truly absurd, imagine a GOTV effort dependent upon the good graces of Hedge fund managers.
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Agency fees in principle are important to public employee unions because they're required by law to bargain for all workers in a unionized setting. If agency fees for non-members are ruled to be a violation of free speech, unions fear they would lose funding, become less effective at bargaining for benefits and, in turn, lose members.
A death spiral.
One labor official said such a result would bring about "the possible final destruction of the American labor movement." The official added, "It would cause the death not only of public sector unions and what's left of private sector unions, but also the Democratic Party," suggesting that the demise of unions would make Democrats more reliant on Wall Street money.
The plaintiffs in Harris are a group of non-unionized home health care workers in Illinois. They are being represented by something called the National Right To Work Committee (NRTWC) Legal Defense Foundation, a pithy moniker disguising a coalition of pro-business, anti-union interests who have already achieved marked success in convincing twenty-four state legislatures that "agency fees" for public sector collective bargaining, because they could be interpreted as intrinsically infringing on "political speech," are thereby unconstitutional.
Unions call such fees "fair share dues," because since they are compelled by law to negotiate on behalf of union and non-union members alike in a unionized workplace, the fact that non-union workers will reap the benefit of such negotiation suggests they ought to pay their "fair share" in making it happen.
The "pro-business" argument is that all public sector collective bargaining is "political speech" since it affects state budgets. Prior Supreme Court precedent has limited such fee arrangements to collective bargaining efforts only--other union activities such as elections, lobbying and public education are deemed "nonchargeable."
Now, the NRTWC has argued for years against union security and for the sanctity of what we’ll call the “right to free-ride” (RTFR), although it prefers the term “right to work.” Such arguments have already persuaded the legislatures of twenty-four states, most recently Michigan, to enshrine this “right” in their private sector labor laws. In Harris it aims, in one fell swoop, to misuse the First Amendment to nationalize this success for the whole public sector. It’s going for the “kill shot.”The consequences of the Court broadly embracing the NRTWC's argument:
[W]ould be a disaster for labor, particularly for the public sector unions that traditionally rely more heavily on agency shop agreements. It is certainly possible to form a union, even a public sector one, in most RTFR states. But you can search long and hard before finding more than one or two with any real power. Blame human nature, or capitalism’s corrosion of the soul, but the truth is that most workers will eventually take the opportunity to free-ride on a union’s work if it is offered, especially if the union is already weakened because some of their fellow workers have chosen this route. Governor Mitch Daniels demonstrated this truth years ago in his overnight conversion of Indiana’s public sector into an RTFR zone. Within a couple of years, the revenue from represented workers in public sector unions was down some 80 percent. We see it today in Wisconsin, as the effects of Governor Scott Walker’s RTFR act sink in. AFSCME’s revenues are already down 60 percent.Alito's role in all this stems from the 2012 decision in Knox v SEIU, in which Alito wrote the majority opinion. Knox effectively replaced an opt-out method for non-union employees to decline payment of such "nonchargeable" fees with an "opt-in" method requiring individual consent, person by person, a process in practice that made it far more difficult for unions to collect such fees. In his opinion in Knox Alito went out of his way to deride what he called union efforts to infringe on the "speech" of non-unions employees, discarding prior precedent where inconvenient to his agenda (as is the "conservative majority's" MO).
In essence, he invited NRTWC to file this suit, taking what they had already done to unions in several states to a national level.
The Knox decision contradicted much of what the Court has recently said about the First Amendment rights of government employees (or, in Citizens United, shareholders). But it advanced a project now embraced by much of this Court: the curbing or dismemberment of public sector unions. At oral argument in Harris, at least four justices (Alito, Kennedy, Roberts and the ever-silent but reliably reactionary Thomas) appeared quite prepared to take the next step in that project, as suggested by the NRTWC...[.]Labor's hopes had rested on the thin assumption that Scalia, who has actually affirmed such "Fair Share" arrangements in the past, would remain true to his prior statements. But the prior role of Alito in Knox as well as the fact that the Court's typical division of opinions during the past week has already seen efforts issued by Justice Breyer (recess appointments) and Roberts (abortion clinic buffer zones) makes it all the more likely that Alito will be given the right to decide the fate of our public unions in Harris. There is no doubt that the ultimate decision could cut one of several different ways. But, as Rick Hasen, a University of California professor puts it, "Anti-union" is [Alito's] signature issue."
And if that doesn't scare the hell out of you, it should.
UPDATED: If you're interested, the SCOTUS LiveBlog is here.
UPDATED: The Opinion is Here. From what I gather from the liveblog, the Court has recognized a new category of "partial public employees" who cannot be required to pay the agency fee. However the Abood case, which affirmed the basis for such a requirement in the past, is not overruled, but strongly questioned, and held not to be controlling with regard to this category of workers. The sharp criticism of Abood suggests that it could be overruled down the line, and particularly if another "conservative" Justice is appointed to this Court. So this would appear to be a temporary reprieve for unions only, if the right has its way.
It therefore appears that while the Court has created an obstacle for unions to expand, it has not gutted their very existence.
It is a 5-4 decision, and Justice Alito authored the majority opinion. Justice Kagan authored a 25 page dissent. You already know who lined up with who.
From the syllabus:
Because of Abood’s questionable foundations, and because Illinois’
PAs are quite different from full-fledged public employees, this
Court refuses to extend Abood to the situation here. Pp. 20–29.
(1) PAs are much different from public employees. Unlike fullfledged
public employees, PAs are almost entirely answerable to the
customers and not to the State, do not enjoy most of the rights and
benefits that inure to state employees, and are not indemnified by the
State for claims against them arising from actions taken during the
course of their employment. Even the scope of collective bargaining
on their behalf is sharply limited. Pp. 20–25.
Abood’s rationale is based on the assumption that the union possesses the full scope of powers and duties generally available under American labor law. Even the best argument for Abood’s anomalous approach is a poor fit here. What justifies the agency fee in the Abood context is the fact that the State compels the union to promoteand protect the interests of nonmembers in “negotiating and administering a collective-bargaining agreement and representing the interests of employees in settling disputes and processing grievances.” Lehnert, supra, at 556. That rationale has little application here, where Illinois law requires that all PAs receive the same rate of pay and the union has no authority with respect to a PA’s grievancesagainst a customer. Pp. 25–27.
Extending Abood’s boundaries to encompass partial publicemployees would invite problems. State regulations and benefits affecting such employees exist along a continuum, and it is unclear at what point, short of full-fledged public employment, Abood should apply. Under respondents’ view, a host of workers who currently receive payments from a government entity for some sort of servicewould become candidates for inclusion within Abood’s reach, and it would be hard to see where to draw the line. Pp. 27–29.
Because Abood does not control here, generally applicable First Amendment standards apply. Thus, the agency-fee provision heremust serve a “ ‘compelling state interes[t] . . . that cannot be achievedthrough means significantly less restrictive of associational freedoms.’ ” Knox, supra, at _. None of the interests that respondents contend are furthered by the agency-fee provision is sufficient.Pp. 29–34.