January 22, 2014

"The Supreme Court Case That Could Clobber Public-Sector Unions."

Garrett Epps looks at yesterday's oral argument.
[The National Right to Work Committee argues] that permitting the [public-sector] unions to collect fees for representing non-members—the so-called “agency fee”—violates the First Amendment....

Since public employees work for government, everything they bargain about is political. Higher wages, better benefits, new work rules—all affect the state budget. Assessing fees from non-members thus requires them to pay for political speech.

All the expenses, in other words, are non-chargeable.

Scalia appeared skeptical of that argument, but it went over with three of the other four conservatives.
So liberal hopes hang on Scalia of all people. Epps extracts some quotes.
From Alito:  "Governor Blagojevich got a huge campaign contribution from the union and virtually as soon as he got into office he took out his pen and signed an executive order that had the effect of putting, what was it, $3.6 million into the union coffers?" Kennedy: "Suppose the young person thinks that the State is squandering his heritage on unnecessary and excessive payments or benefits and wages. Is that not a political belief of the highest order?"

ADDED: From the SCOTUSblog summary of the argument:
The precedent whose philosophical foundation was up for discussion — and that [U.S. Solicitor General Donald B. Verrilli, Jr] urgently sought to be reaffirmed — is Abood v. Detroit Board of Education.  That 1977 decision was the Court’s first major ruling to embrace public employee unionism and the idea that a single union should represent a public unit of workers and all employees — union members or not — would have to support its core bargaining activities by paying dues.

The hearing Tuesday had only gone for  couple of minutes when a lawyer for the National Right to Work Legal Foundation, William L. Messenger, was urging the Court to overrule Abood, and thus drawing heavy questioning from more liberal Justices, like Ruth Bader Ginsburg and Sonia Sotomayor, and, soon, Justice Elena Kagan...

The trend of the argument... appeared to have alarmed Justice Kagan, who said that what was being discussed was “a radical restructuring of the way workplaces are run” throughout the country.  She noted the “passion and heat” now spreading across the country — as, for example — in Wisconsin, over the role of public employee unions.  She wondered if it was “fair” to suggest that Messenger was actually arguing that a “right-to-work law [that is, no compulsory union support) is constitutionally compelled.”
Think about why this may or may not be something that ought to be determined in the legislative process, as Kagan clearly would prefer (not that she likes where the Wisconsin legislature has gone). Revisit the Alito quote above, which highlights the circular path of the money from the union to the politicians who return the money after the election. And yet it's possible for the political process to break the circulation of money, and the circulation of money is itself a vibrant political issue that might motivate the people to elect a legislature like Wisconsin's. I guess that motivation is what Kagan calls "passion and heat."

This made me want to look up that passage from Governor Scott Walker's book ("Unintimidated") that describes the circular process (calling it a "racket" and a "scam"):
1.     The government automatically collects compulsory union dues from the paychecks of public workers.

2.     The government then gives the money to the union bosses.

3.     The union bosses then give that money to pro-union politicians in the form of campaign contributions.

4.     The union-backed politicians use that money to get elected.

5.     Once elected, the union-backed politicians then sit across the table from the union bosses to “negotiate”— purportedly on behalf of the taxpayers.

6.     But instead of representing the taxpayers, they do the bidding of the unions by providing excessive wages, benefits, and pensions.

7.     They line the pockets of union bosses through sweetheart deals, such as contracts requiring school districts to buy insurance from union-affiliated insurers, like the Wisconsin Education Association (WEA) Trust, when they could have gotten much cheaper insurance on the open market.

8.     Taxpayers lose tens of millions every year in higher health insurance costs— money that could have gone into classrooms but instead goes to the union bosses.

9.     The union bosses then line the campaign coffers of the politicians with whom they just negotiated all over again, so they can elect more pro-union politicians who will continue this racket.

10.     The cycle starts all over again.

This is why, as George Will so eloquently put it, public sector unions are nothing more than “government organized as a special interest to lobby itself to expand itself.” 
Collective bargaining gives the union bosses the keys to the statehouse, city hall, and school. It allows them to effectively sit on both sides of the bargaining table when contracts are negotiated, while no one represents the interests of the taxpayers (whose money is at stake) or the children (whose education hangs in the balance). It is cronyism, plain and simple.
Now, it's still a separate question whether the remedy for that problem — assuming you agree that's what happens and it's a problem — is through electing political representatives who are and can keep out of that cycle or whether the solution is to be found in the law of freedom of speech (which is what the Supreme Court case is about).

AND: Here's Ilya Shapiro at Cato. Excerpt:
It was... heartening to see that the continuing vitality of Abood v. Detroit Board of Education (1977) was in play. That case established that, in the interest of “labor peace,” a state could mandate its employees’ association with a union, forcing them to subsidize that union’s speech and submit to it as their exclusive representative for negotiating with the government regarding their employment. (Abood simply assumed, without further analysis, that the Supreme Court had recognized labor peace as a compelling interest.)

Justices Breyer and Kagan were particularly concerned that so many employers and unions had relied on the Abood doctrine over the years, so touching it would implicate significant reliance interests. But overruling or severely limiting Abood would only be one more step in the Court’s trend of protecting individual workers from having to support political activities....
Somin links to George Will's column and to the Wall Street Journal (both of which predate the oral argument and highlight the very Blagojevich material that Alito asked about).

60 comments:

rehajm said...

The contracts allow the unions to receive payment only for bargaining expenses. Other things unions do—backing candidates, lobbying legislatures, conducting high-impact litigation—are “non-chargeable” expenses, precisely because they might raise First Amendment “compelled-speech” concerns.

Weak argument- money is fungible. Does it matter if the unions receive payment in their left hand or their right?

And I've never found the free-rider argument compelling, either. The union isn't harmed when it's actions inadvertently benefit non members. Don't want to help free-riders? Stay home.

Yu-Ain Gonnano said...

I've wondered why unions are challenged on an anti-trust basis. In many places they have an effective monopoly on the sale of labor. When Standard Oil did that, It Was Bad™. Public sector unions even moreso than private sector unions as moving those jobs out of the locality is a practical impossibility.

At least Ford could, in theory, move production away from the UAW.

Hagar said...

I do not know if I can put it into words, but charging me a fee for acting on my behalf when I have not asked for, and in fact vigorously oppose, such "help," seems to rest on an unspoken assumption of social organization that is nowhere to be found in the Constitution.

Illuninati said...

Althouse said:
"So liberal hopes hang on Scalia of all people."

Isn't it interesting that the so called liberals know beforehand that the "liberal" judges will rule to force a person who wishes to work for the government to donate money against his/her will to causes he/she disagrees with. One can only assume that the "liberal judges" must be such doctrinaire leftists that their opinions can be reliably predicted with certainty.

RecChief said...

hmm, is this when, for a brief moment, leftists embrace the strict constructionist and the Constitution?

RecChief said...

@illuminati
Nice point, but that is old news.

Thorley Winston said...

I've wondered why unions are challenged on an anti-trust basis.

I assume you meant “aren’t” but the reason why they aren’t challenged on anti-trust grounds is because the Sherman Antitrust Act of 1890 was changed by the Clayton Antitrust Act of 1914 which created safe harbors for union activities. Yes, a labor union is basically a type of cartel but it’s not an illegal cartel because Congress decided to treat the labor of human beings different from commodities and articles of commerce.

Bob Ellison said...

Public-sector unions are like class actions by shareholders: negotiate against yourself or sue yourself.

We grow comfortable with stupid concepts like labor unions because they've been around for a while. That's how we got comfy with rap music and speed limits on highways.

Public-sector unions have no obvious benefit except for the union organizers.

PB Reader said...

Public sector unions are very different from private sector unions in that public sector unions can essentially elect their bosses and after making generous campaign contributions expect and get very nice payback.

Recall that during the stimulus, certain activities that directly benefited union employees were calculated by democrats to result in very reliable increases in campaign contributions.

garage mahal said...

I'd much rather have the Walton family and the DeVos family buying legislatures than allowing a worker to bargain for their wages or workplace safety. I know Amway and the Kochs are on MY side.

Fen said...

...said the Soros-sponsored troll

Hammond X Gritzkofe said...

There should be no collective bargaining in any employment paid directly or indirectly from public funds. Yes, that includes schools, research or construction projects and grants, and any sub-contractors of these.

MattL said...

It's rare that FDR and I agree on matters economic. I don't know if they should be unconstitutional (probably not), but public sector unions definitely shouldn't exist and should probably be illegal.

Mitch H. said...

Fen, have we ever actually gotten evidence of garage's income sources? AFAIK Soros is free-riding on GM & ARM & the other trolls' "negotiating" on Soros' behalf. Perhaps the various Soros foundations ought to be compelled to put them on retainer?

To be honest, I'm not sure that this First Amendment argument holds water. It would if the text of the amendment actually explicitly protected the freedom of association (IE, if it asserted " the right of the people peaceably to assemble, or not assemble when ordered by their beters") that some theorists say it *implies*. A "right of disassociation", as it were.

I would definitely be open to a "Misanthrope's Amendment" if and when they dredge up that convention Levin's been pushing to make happen.

Illuninati said...

garage mahal said...
"I'd much rather have the Walton family and the DeVos family buying legislatures than allowing a worker to bargain for their wages or workplace safety."

True. It is hard to disagree with this statement. That is why we must have free and fair elections in which the people decide on their legislatures. Of course a worker should be able to bargain for his/her workplace safety. What I don't get is how that relates to the topic of forcing people to pay into the SEIU against their wills.

David said...

It's quite touching to see the liberal justices' concern that the legislative process should be the proper repository for important and controversial decisions. Too bad the concern is most likely an expedient for this case rather than a principle to be consistently applied.

garage mahal said...

Billionaires must endlessly cackle among themselves at how easily they can get the rubes to do their bidding for them. For free! It's a pretty neat trick I will admit.

Illuninati said...

garage mahal said...
"Billionaires must endlessly cackle among themselves at how easily they can get the rubes to do their bidding for them."

How often do George Soros, Mark Zukerberg, and Harvey Weinstein get together? Hearing them cackle over leftie rubes must be a horrible sound.

Bob Ellison said...

garage mahal, do public-sector unions "bargain" for workers? These unions exercise monopoly power. That's not bargaining; that's extortion.

And the beneficiaries aren't even the workers! They're the union functionaries. These folks can kill whole companies and industries and laugh all their way to the bank!

CWJ said...

The people being forced into the SEIU by being redefined as government employees are home care workers. This includes for example parents caring for their children.

In what conceivable way does the SEIU bargain on behalf of that particular class of "employee" such that the union incurs expenses and the parent receives benefits?

SGT Ted said...

“Labor peace,” is extortion under threat of violence from union thugs.

"We better do what the Unions want or they will riot" isn't very sound jurisprudence.

CWJ said...

SGT Ted,

I learned yesterday that you may want to think twice before using the word "thug."

SGT Ted said...

Ultimately, the check on unions is usually the National Guard, breaking their strikes. The unions respect gunfire.

SGT Ted said...

"Thug" is accurate. That's how they "negotiate".

Threats of violence and property destruction are routine from Unions. That's why they should be outlawed and charged under RICO statutes. They are a criminal conspiracy.

Seeing Red said...

Moms & Dads will have to pay dues, but there won't be state pensions or anything.

Seeing Red said...

They would get a check from the state, tho. That was the selling point, their pay will be increased.

Of course, would it cover the dues? Who knows?

Hagar said...

I think there is a "right to be left alone" emanating like a penumbra from the Constitution, if not by the States, surely by the Federal Government - and the "Old Republicans" - Jefferson, Madison, and Monroe - certainly thought so.

Seeing Red said...

Typical vile progs, we all belong to/work for the state. No free will, no individualism.

Hagar said...

"An area in which something exists to a lesser or an uncertain degree: “The First Amendment has a penumbra where privacy is protected from governmental intrusion” (Joseph A. Califano, Jr.)."

So a penumbra can hardly emanate, but emanations of whatever can exist and be seen in a penumbra.

I think the "Old Republicans" would be a lot more definite than that about the right to be left alone by the Federal Government. In fact, they more than once threatened revolt or secession if the proponents of Federal power did not back off.

Naut Right said...

For the life of me, I just don't see how this doesn't bring in Citizens United with the state worker or potential state worker standing in for the stockholder?
It's not the voluntary nature of the initial contact at issue. Rather, it's the subsequent use of resources used for purposes unrelated to the voluntary, or not, initial contact.
If Citizens United is correct the unions should win.

CWJ said...

SGT Ted,

I was referring (tongue in cheek) to yesterday's Richard Sherman post where Althouse posited the use of thug as a racial code.

Andy Freeman said...

If she's a public employee, a bunch of other things are required.

She owes income tax on her salary. She has to be paid minimum wage. She has to pay disability and be eligible for the state's pension plan.

And if she works more than 30 hours/week, the state is on the hook for her Obamacare.

Mingus Jerry said...

I think the bigger issue is how Illinois defined public worker being that they were paid by Medicare even if the individual employer decided to hire/fire the person.

If we accept that payment by Medicare makes someone a public employee than are all doctors who accept Medicare now gov't employees? Are all social service organization employees now government employees because they are funded by the State?

Heck, why not just say people on welfare are now government employees because they are paid by the Government.

Hagar said...

Then, why is not all welfare recipients state employees and subject to unionization?

jr565 said...

Here's Roosevelt talking about the evils of public unions:
“The process of collective bargaining, as usually understood, cannot be transplanted into the public service. Yes, public workers may demand fair treatment. But, “I want to emphasize my conviction that militant tactics have no place. A strike of public employees manifests nothing less than an intent on their part to prevent or obstruct the operations of Government.”

And we thought the tea party was bad.

Hagar said...

Though "payment in lieu of dues" are better; that way that can't upset the applecart by voting the wrong way in union elections - kind of like owning stock in The New York Times.

Anonymous said...

"Public sector unions are very different from private sector unions in that public sector unions can essentially elect their bosses and after making generous campaign contributions expect and get very nice payback."

Exactly. Which is why anyone who gets a paycheck from the government shouldn't be allowed to vote.

I can't elect my own boss, so why should teachers, trash collectors, soldiers, and sailors be allowed to?

Larry J said...

Illuninati said...

One can only assume that the "liberal judges" must be such doctrinaire leftists that their opinions can be reliably predicted with certainty.


While assumption is always risky, it's a pretty safe bet on how liberal judges will rule on any issue.

Hagar said...

The Democrat controlled state legislature votes to pay me $1,000/month to care for my Alzheimer parent, which is cheaper than $2-3,000/month in a state hospital.
The Democrat controlled state legislature votes to consider me a state employee and withholds $25/month "payment in lieu of union dues" for the local AFSCME chapter.
The Democrat controlled state legislature votes to raise my "wage" to $1025/month.

Michael said...

Garage: Need those public sector unions to protect the "workers" from the dastardly government.

Seeing Red said...

This is bigger than unions, this is another Kelo. When is your home your castle? The State will be able to come in when they want to.

Anonymous said...

The "free rider" "problem" is BS. The unions insist on the power to force all employees in a unit to be under the union contract. If the union is willing to give that up, and let people who aren't in the union negotiate for themselves, then they can complain about "free riders".

Ignorance is Bliss said...

Naut Right said...

If Citizens United is correct the unions should win.

In Citizens United, the government was trying to prohibit speech by corporations, and the Supreme Court ruled that unconstitutional.

In this case, the government is trying to compel speech, by requiring individuals to pay unions when the unions will use that money to engage in negotiations ( speech ) that the individual does not agree with.

I don't see how Citizen's United works in favor of the unions.

Ignorance is Bliss said...

Note, I'm not sure I agree with the argument that 'union negotiations' == 'political speech'. But that is the argument being made, and one you have to accept in order for Citizen's United to apply at all.

rehajm said...

garage mahal said...
I'd much rather have the Walton family and the DeVos family buying legislatures than allowing a worker to bargain for their wages or workplace safety


You conflated 'worker' and 'union' here. Tricky.

damikesc said...

I still don't get how this isn't a violation of the 1st Amendment's Freedom of Assembly. One should be equally free to NOT assemble if they opt not to.

Ignorance is Bliss said...

Assembly is not the same as association. If the First Amendment said freedom of association then I would agree. However, requiring people to associate is different from requiring them to assemble.

Laura said...

Who's gonna go after the SAG for marketing, glamorizing and making bundles off the methamphetamine industry?

Bueller. . . Bueller?

Laura said...

Call me Zoe Doe. I distinctly remember a meth lab explosion. Perhaps I ingested some fumes...

MadisonMan said...

A so-called "Free Rider" might be an individual whose own personal views are directly opposite those of the Union he/she is forced to join/pay money to. If the job/Union is linked to the Govt, how is that not suppression of speech/thought by the Government?

This is an interesting case, and I'll enjoy reading the justification for the decisions on both sides. That's not something I say about many Supreme Court cases.

Anonymous said...

Is not a big part of this case the fact that the “workers” are predominantly caregivers whose “patients” are their child or other relative? The payments are through Medicaid and Medicare programs for the disabled administered by the state under the theory that homecare is cheaper than institutionalization.

The pittance the caregivers receive under these programs means that any money diverted to union dues hurts. And what can the unions due? Medicaid and Medicare cap what's paid out, so unions can't bargain for more money. Working conditions? The people are working in their own homes, caring for disabled relatives. But the union executives don't care, it’s free money to them. And the governors who enable such arrangements are scum.

Anonymous said...

"Assembly is not the same as association. If the First Amendment said freedom of association then I would agree. However, requiring people to associate is different from requiring them to assemble. "

But don't we also have a right to the freedom of association under the 1st amendment? According to Wikipedia:

"The Free Press Clause protects publication of information and opinions, and applies to a wide variety of media. In Near v. Minnesota (1931)[72] and New York Times v. United States (1971),[73] the Supreme Court ruled that the First Amendment protected against prior restraint—pre-publication censorship—in almost all cases. The Petition Clause protects the right to petition all branches and agencies of government for action. In addition to the right of assembly guaranteed by this clause, the Court has also ruled that the amendment implicitly protects freedom of association.[70]"

Ignorance is Bliss said...

... the Court has also ruled that the amendment implicitly protects freedom of association.

According to Supreme Court precedent you are correct. I'm not big on things the court determines the constitution implicitly protects when they rule in a way that I disagree with, so I'm not going to base my case on such implicit protections just because I agree with the outcome.

Guess that's why I would suck at being a liberal.

Anonymous said...

Ignorance is Bliss,

I can respect your position. I, for one, am tired of playing by two separate sets of rules.

It's like the filibuster. The Republicans will probably bring it back once they have a majority.

Why do we handicap ourselves?

Yu-Ain Gonnano said...

Thanks, Thorley.

It's sad that it boils down to nothing more than "But it's OK when I do it".

CWJ said...

SC Mike,

Lest you feel alone. I made a comment substantially similar to yours upthead, and asked in what way a union could bargain on behalf of individual caregivers in their own homes caring for their own families.

Other than lobbying for larger medicaid payouts, which any group or citizen could do, what does the union bring to the table in any sort of unique and binding sort of wqy?

Since this power grab went into effect, what exactly has the union done on behalf their caregiving members? Indeed, what does membership mean? If the family member dies or becomes rehabilitated, or otherwise is no longer eligible for medicaid are the family caregivers still members of the union? If so, why? If not, then it calls into question that caregiver is somehow the person's profession independent of circumstance. Even a laidoff autoworker or carpenter is still a member of their union.

Anonymous said...

CWJ -

One other important distinction: The payments are made on behalf of the disabled individual to defray expenses for care, they are not wages paid to the caregiver. Moreover they are not taxable, not considered income. How anyone could imagine that a state could withhold a portion for dues is beyond me, but is reality.

Minnesota is trying the same thing: “Child care workers who receive state subsidies asked a St.Paul, Minnesota judge Thursday to halt efforts to implement a new state law that makes them eligible for unionization drives…. The law essentially says that childcare workers and those who provide care to the elderly and the disabled are effectively state employees if they receive subsidies. Therefore they can also belong to public sector unions.”

From: http://washingtonexaminer.com/minnesota-child-care-workers-ask-judge-to-halt-unionization-law/article/2533301

Anthony said...

Related to gregq's point:

Is it legal, under Federal labor law, for a private employer to pay its non-union employees (performing the same jobs) using a different pay scale than its union employees?

Is it legal, under Federal labor law, for a government employer to pay its non-union employees (performing the same jobs) using a different pay scale than its union employees?

Diogenes of Sinope said...

It should be illegal for public sector workers to have unions.

damikesc said...

Is it legal, under Federal labor law, for a private employer to pay its non-union employees (performing the same jobs) using a different pay scale than its union employees?

Yes because my company --- a large one --- does so.

Namely, we get things like profit sharing and the like and the union guys do not.