Upcoming gov. union case might actually take dissenters seriously

If you want to elicit a visceral reaction from a government employee union official, there’s an easy way to do it. Just bring up Franklin Roosevelt’s famous quote that “All Government employees should realize that the process of collective bargaining, as usually understood, cannot be transplanted into the public service.”

They don’t like that quote because it’s so direct, and because FDR is considered a labor champion. You’ll get some hemming and hawing about “full context” and a convoluted explanation of why what he seemed to say isn’t really what Roosevelt meant.

The whole topic is back in the spotlight, in a big way. The U.S. Supreme Court has accepted a case, Janus v. AFSCME, which could upend forced union representation and alter the labor law landscape.

At issue isn’t Roosevelt’s topic – whether it’s appropriate for government, representing the people, and one of its constituencies to bargain with each other. It’s narrower, but still important – can government employees be forced to pay fees to a union they don’t want to support? Does an employee’s right to free speech mean they cannot be compelled to financially contribute to an organization they disagree with?

Prospects are grim
Officials from government employee unions are nervous, with good cause. The court deadlocked 4-4 on a previous case, Friedrichs v. California Teachers Association, after Justice Antonin Scalia died. The bad news for those who support compelled dues and fees is that Justice Anthony Kennedy, their best chance for persuading one of the conservative justices, sided against the unions in that case. Now that Justice Neil Gorsuch has brought the court back to nine members, the unions’ prospects for victory in Janus look grim.

A loss at the court will not mean the end of government employee unions. For decades, many states have had right-to-work laws, which bar forced membership or fees, yet they still have public employee unions. Six more states have passed right-to-work laws in the last five years, most famously Wisconsin. Freed from compelled fees, many government employees do choose to leave their unions. Plenty stay, but the union budgets are not as robust as before.

Individual rights brushed aside
A ruling against compelled fees would overturn the 1977 Abood decision. In that case, justices ruled that objectors cannot be forced to be union members, but they can be compelled to pay “agency fees” for collective bargaining and administrative costs. In theory, agency fees are supposed to cover those costs without contributing to the unions’ political efforts.

The court focused in 1977, as the unions do today, on the problem of “free riders.” Wouldn’t it be unfair, goes the argument, if an employee could benefit from a union’s bargaining work without paying for the costs of the union’s operations?

But the fact that the free rider question was the main issue tackled in Abood is a reflection of that case’s era. There was a broad post-war, post-New Deal consensus around labor questions on the court and in the legal and political establishment generally. It wasn’t so much a matter of group rights vs. individual rights, but more of a default handling of labor matters as “group” matters. Questions of individual rights were given short shrift, sacrificed to “labor peace” and practicality.

But one man’s free rider is another man’s dissenter. By taking the individual rights questions more seriously today, the court will reevaluate whether the Abood ruling approached these matters with the most fundamental constitutional questions in mind. Can we really say dissenting workers’ 1st Amendment rights are being protected when they are being forced to financially support a private entity whose goals they disagree with?

To argue the free rider question is to engage on the government employee unions’ preferred turf. It still forces an awkward argument from them: That, given the chance, many of their members would stop supporting the union tomorrow if they could. In the unions’ hypotheticals, these members aren’t rejecting them or their goals, they’re just making a selfish financial decision (the “Calvin and Hobbes” strip practically writes itself).

Not only about money
But as Friedrichs, Janus, and other cases make clear, these plaintiffs are not anxious to be free riders. They’re not even primarily motivated by financial considerations. They’re genuinely objecting to forced fees and forced association with groups they disagree with – in some cases, groups that they truly despise. They don’t want to be forcibly associated with the unions’ political activities.

In Abood, the 1977 court didn’t take these genuine objections particularly seriously. Today’s court is. The court now is considering that the rights the 1st Amendment guarantees to all of us might be more important – more fundamental – than the free rider question.

If the government employee unions do lose this case, they should take it as a call to reinvent themselves. Yes, to retain members, they’ll have to work harder to prove their value. They can bargain hard, offer more member services, and cut the management bloat. As the right-to-work states show us, ending compelled fees needn’t mean union destruction. But there will likely be less money to spend on politics.

The court in Abood tried to draw a bright line, with representation costs on one side and unions’ political work on the other. In real life, the line isn’t so bright. Since we’re talking about government employees and taxpayer dollars here, even that collective bargaining work is a matter of how to spend public money and how much of it to spend – inherently political questions.

It’s good to see that, at the very least, today’s court is taking seriously the objections of those who want to work in government without supporting or associating with groups whose political positions may be the opposite of their own.
-Rob McKenna

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Rob McKenna
Rob served two terms as Washington’s Attorney General, from 2005 to 2013. He successfully argued three cases before the U.S. Supreme Court and negotiated three of the largest consumer financial protection settlements in national history, all involving mortgage lending and servicing. He is a recognized leader in the development of consumer protections on the internet, in data protection and privacy regulation.