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December 16th, 2018

Insight

Is Supreme Court about to deal a severe blow to a key Dem constituency?

Charles Lane

By Charles Lane The Washington Post

Published Feb. 16, 2018

Is Supreme Court about to deal a severe blow to a key Dem constituency?

No obscure Supreme Court ruling deserves its obscurity less than Abood v. Detroit Board of Education, the transformational 1977 case in which the justices upheld mandatory dues for public-employee unions.

At the time, collective bargaining in the public sector was new, an outgrowth of broader social upheavals, which included 1,400 public-employee work stoppages nationwide between 1965 and 1970.

Abood assured these struggling organizations a steady flow of cash, derived ultimately from the same place government gets all its money: taxes. As a result, public-sector unions' membership is 7.2 million today; they are bulwarks of the Democratic Party, thanks largely to their dues-filled campaign war chests.

On Feb. 26, however, the Supreme Court will hear a public worker's request to overrule Abood. This new case, Janus v. American Federation of State, County and Municipal Employees, is as much a product of its times as Abood was 41 years ago.

Abood held that a government's interest in stabilizing labor unions, by preventing workers covered by union contracts from "free-riding," could outweigh workers' right not to subsidize an organization with which they might disagree politically - provided that employees could opt out of the portion of dues that supported overt politics. (The mandatory remainder is known as an "agency fee.")

Unions embrace that logic in Janus, but their main argument is "stare decisis" - legalese for "stand by what was decided." Overruling Abood would unsettle the law in 22 states that have mandatory dues, unjustified by any new law or facts since 1977, the unions argue.

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.


Certainly, today's justices revisit that constitutional question knowing more about public-sector unionism's actual costs and benefits than the Abood court did.

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.

Democratic state and local politicians admit privately - and even publicly, sometimes - that dealing with the unions makes it much harder to govern. I have heard one such official express envy for Gov. Scott Walker, the Wisconsin Republican who ended mandatory public-sector dues and sharply restricted bargaining in his state.

How any of that bears on the constitutional issue before the court is another question, to which the answer may not be quite as simple as the plaintiffs suggest.

The states have a right to allow public-sector collective bargaining, counterproductive as it is; and, that implies, the latitude to minimize disruptions in the overall process. Workers' free-speech concerns could, conceivably, be dealt with by making it easier for individual members to withhold more of their dues, not necessarily all of them.

Yet the results of recent cases on similar issues suggest that the justices will not go for such a halfway solution. There are probably five votes on the court to overrule Abood, with President Donald Trump's appointee, Neil Gorsuch, in the majority. That could cost unions - and, by extension, the Democratic Party - untold millions.

If they lose, unions will, not without reason, blame a well-funded anti-union campaign from the Republican right, previous milestones of which included Walker's reforms in Wisconsin.

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.

Public unions have lost touch not only with their own members but also with many in the larger body politic, who wonder about paying taxes so public workers can get better pensions and health care than they do, or why it's near-impossible to fire bad teachers. Each time voters in historically blue Wisconsin had a choice between Walker and the unions, they picked Walker.

Public unions' one-way political bet on the Democratic Party may have been understandable but looks strategically mistaken in hindsight; they're left with precious little leverage in the current GOP-dominated political milieu.

Stare decisis is the straw they now clutch at before the Supreme Court, whose members are mostly appointees of Republican presidents - and whose doctrine includes a 1991 case called Payne v. Tennessee. "Stare decisis is not an inexorable command," it says.


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