On Monday, the Supreme Court heard oral arguments challenging the practice of public sector unions requiring nonmember fair share fees. Union organizers around the country have been watching this case nervously for several years as it worked its way up the court system -- and for good reason. Despite its wholesome third-grade teacher plaintiff, Friedrichs is a political power play, one funded by the conservative Center for Individual Rights and backed by big money donors.
The purpose of Friedrichs is to do to public sector unions nationally what right-to-work legislation does on a state-by-state basis. It will almost certainly succeed.
What’s at issue here is the First Amendment concerns raised by fair share, or “agency” fees. In 23 states including California, public sector employees who chose not to join a union are nevertheless required to pay a percentage of union fees dedicated to collective bargaining. The idea is to prevent free riders. Because the union negotiates on behalf of all employees, if nonmembers don’t contribute they’ll end up with all the benefits of a negotiated contract without having to pay the bills.
The alternative, as counsel for the teacher’s union David Frederick argued on Monday, would be a classic collective action problem. In any system that benefits everyone equally, the incentive for individuals is to sit back and collect your goodies for free.
The fair share system is a compromise to solve that collective action problem, one that’s long drawn criticism. Nonunion workers have argued for years that these fees associate them with unions and bargaining positions they don’t necessarily agree with, and they have a reasonable point. Particularly in the case of teachers, contracts often involve hot button issues such as tenure and merit pay, drawing the criticism of many educators who say that the union’s position does not represent them.
If that seems like a potent political issue, you’re right. Which is why the Supreme Court has already addressed it… 39 years ago. In Abood v. Detroit Board of Education, the Court heard this same First Amendment argument. After balancing the state’s interest in having one representative for all employees, as well as the union’s argument that it can legitimately bargain for fair share fees as a condition of employment, the Court created the compromise we have today.
Since 1977 the Court’s opinion on money has changed, though, from a balancing test to creating an absolute equivalency between dollars spent and speech. Where once it was possible to draw the line between chipping in for labor representation and pounding a “Hillary 2016” sign into the lawn, this Court’s jurisprudence (most notably the infamous Citizens United decision) has established that any expenditure constitutes a political action.
As Roberts argued at one point to the Edward Dumont, representing the state of California, “It's all money… [It’s] how much money is going to have to be paid to the teachers. If you give more mileage expenses, that costs more money. And the amount of money that's going to be allocated to public education as opposed to public housing, welfare benefits, that's always a public policy issue.”
In the eyes of the Court, there’s no severability between employment negotiations and the politics surrounding those public salaries.
And for anyone who thought that Justice Anthony Kennedy’s vote might be in doubt, he made his feelings clear when responding to the defendant’s argument: “I suppose, if that's so convincing, the union can convince teachers to join the union.”
The problem is, like much of Kennedy’s jurisprudence (again, Citizens United), the real world just doesn’t work that way.
The union system has always been plagued by its central collective action problem. For workers, it’s always a better individual decision to blow off the expense (and occasional risk) of membership in favor of soaking up the benefits bargained for by others. That’s why unions bargain for fair share fees as a part of their workplace contracts, a more complicated issue for the public sector where that deal crosses the line from employment quirk to potential government coercion.
Because it turns out people really do pursue short-term gain, and we have the numbers to prove it. In 2011 Governor Scott Walker turned Wisconsin into a laboratory for the effects of right-to-work on public sector unions when he abolished fair share fees for teachers unions while keeping them in place for police and fire departments (by some strange coincidence, groups that tend to vote Republican). What happened was what Wisconsin’s Capital Times described as the “third-highest drop in union membership” among states without right to work laws, declining 18 percent between 2010 and 2014.
As the New York Times reported in 2014, “police and firefighters, who were exempted from Act 10’s restrictions on collective bargaining, make up most of the remaining union members. [The Oshkosh mayor] said his city’s police and firefighters have averaged annual raises of 2.5 percent, while other workers had no across-the-board raises from 2010 to 2012, and received a 1 percent increase in 2013.”
The Wisconsin Troopers Association, which publicly supported Walker during his campaign for governor, was not only exempt but received a 17% average raise.
Leverage matters. Workers who are left to fend for themselves do consistently worse than those who can band together. States with right-to-work legislation have consistently lower pay and fewer benefits, an average of 9.8% below states without according to the Department of Labor. In trade, they states see a one-point higher boost to employment, driven by businesses leaving unionized states to pursue cheap labor.
It’s why employers fight back so hard against collective bargaining, and one reason the decline in union membership has consistently tracked with growing inequality.
Teachers don’t get off any easier. According to data from the NEA, the 2012-13 average salary for a teacher was $36,141 nationwide, compared to an average of $34,537 in the five states that banned the union. In the meantime, they worked a 53 hour week.
Leverage really matters, but there won’t be any groundswell of public support to save the teachers.
In a very real sense Friedrichs is the teachers’ union’s chickens coming home to roost. With its absolutist stances on issues like tenure and merit pay, not to mention strikes and “sick outs” in districts like Detroit and Chicago’s South Side, the group has steadily alienated its friends to the point where even many Democrats roll their eyes at the union’s antics. Now, when they’ll need public support the most, the reserves of good will are empty.
It’s no coincidence that conservative action groups chose this as their test case. Even many liberals will be happy to see this group’s power broken.
Interestingly enough, though, the coming plaintiff’s verdict in Friedrich will effect far more than just public unions. Abood is also the basis for Supreme Court rulings allowing practices like mandatory student association fees at universities and professional licensing fees like bar and medical cards.
Expect it to be about 15 minutes before the first Young American for Freedom shows up challenging university policies that force him to subsidize the campus LGBT club. Carvin flippantly dismissed this issue, saying that “if they required me to join the ABA, I would have an absolute First Amendment right not to do that, because virtually every word out of their mouth I disagree with,” but that’s not the point.
Carvin no more has to join the ABA than teachers have to join the union. He does however have to pay an annual fee for each jurisdiction in which he holds a license, money which pays for holding the bar exam, enforcing ethics rules and a whole host of other activities necessary to make a meaningful professional licensing scheme work. That doesn’t go out the window just because a handful of lawyers consider the ethics rules a political issue.
That doesn’t make a lot of difference to the political activists who brought this case. Anti-unionization efforts have been a centerpiece of Republican strategies for many years now given the overwhelming support that organized labor tends to show for Democrats. While the governors of many states have passed right-to-work legislation at both the public and private level, this ruling will make that the law of the land regardless of red or blue state.
That this bears little more than a conversational relationship with the law doesn’t matter much to the activists who brought the case, or their allies on the bench. Monday’s arguments should have been about one question: can a union bargain for fair share fees with public employers? We’ve had a good working answer to that question for years, not a perfect one but one which balanced the free rider problem and a union’s right to negotiate against the objections of many workers to organized labor’s overt politics. Now the Supreme Court is getting ready to throw it, and the thousands of contracts written in reliance on fair share fees, out the window because some workers want a heckler’s veto.
This only makes any kind of sideways sense in our new world where money is always speech. In that world even something like mileage reimbursement rates becomes a Constitutional question. Leave it to the often-underquoted Stephen Breyer to point out the ridiculousness of this approach: “You will go out this door, and you will buy hundreds of things, if not thousands, where money will go from your pocket into the hands of people, including many government people, who will spend it on things you disagree with. I don't see anything too basic in the lines you're drawing there.”
If money is always politics, even down to the level of salary negotiations, then every purchase, every parking ticket, every inflated bill from Comcast is a political act. In this Court’s view, that makes sense. It means we all get to speak with our own wallets, no matter if that leaves some speakers loud enough to drown out everyone else.
Abood has worked perfectly well as a compromise for 40 years, but we live in the age where compromise is a dirty word. Instead we get Friedrichs, the Citizens United of the workplace. Now, every public employee will get their own voice, small and lonely, to see how well they can bargain for wages and benefits on their own.
The state of the American workplace should give us a pretty good idea how well that’s going to go.