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Symposium: Overrule Abood to protect individual rights (at long last)

Deborah J. La Fetra is a senior attorney at the Pacific Legal Foundation.

Public-employee unions are the only associations in the country legally permitted to take money — garnished wages — from nonmembers who do not support their goals. In Davenport v. Washington Education Association, the Supreme Court described these laws as an “extraordinary state entitlement to acquire and spend other people’s money.” Nonetheless, for 40 years, since Abood v. Detroit Board of Education, the court has allowed that wage garnishment on the theory that without such entitlements, unions’ collective bargaining efforts might be undermined by “free riders.” A series of cases upholding workers’ First Amendment rights to speak and associate as they choose has steadily chipped away at Abood, culminating in this term’s grant in Janus v. American Federation of State, County, and Municipal Employees, Council 31. The court should overrule the flawed Abood decision.

The most important part of freedom of expression is the right not to conform. When unions engage in political activity, they rely heavily on peer pressure, coercion, and inertia to silence opposing views from dissenting members or nonmembers. Workers often feel compelled either to join the union, or to self-censor, lest their disagreement incur retaliation by union leaders or coworkers. And they have little ability to change or alter the union itself; once public-employee unions are certified, they rarely face any real prospect of decertification, meaning that most current public employees never had a chance to vote on union representation at all. Thus, public-employee unions exert more coercion and intimidation against dissenting workers than private-sector unions or employers, because private-sector workers can more easily find comparable jobs, if need be. Dissenters need the Constitution and the courts to shield them from popular laws that force them to hand over wages to support union political activities they oppose.

Reaping the benefits of incumbency, and because of their outsized role in electoral politics, public-employee unions enjoy a uniquely powerful position to influence the adoption of public policies. Government workers who don’t agree with their union’s leadership are excluded from the symbiotic relationship the unions establish with elected officials, leaving the objecting workers less able to obtain redress in the political arena.

Most fundamentally for purposes of Janus, the difference between public- and private-sector unions is that public-sector collective bargaining is an inherently political process, concerning the allocation of scarce taxpayer government resources. While many details of public employment may be negotiated with individual government agencies, no aspect of a collective-bargaining agreement can conflict with the terms and conditions of public employment established by statute. The content of those statutes, therefore, is very important to public-employee unions, which devote considerable time and energy lobbying for passage and modification of statutory benefits that serve the interests of their members. AFSCME’s legislative and political arm, denoted Public Employees Organized to Promote Legislative Equality, PEOPLE, aspires to lobby school boards, city councils, county boards, the state legislature, and Congress, to achieve passage or defeat of legislation affecting public employment (very broadly defined).

Public-employee unions characterize lobbying for or against statutes that have even a tangential effect on public employment or services provided by public employees as nothing more than employment-related matters falling within the union’s role as the workers’ representative. But they are not: Private citizens have — and should have — views on how much tax money should be spent on public employees’ salaries and benefits, as well as the protections government employees have from being terminated for poor performance or malfeasance. Union lobbying advances a particular political view on those matters with which many public employees disagree.

The inextricable intertwining of public-employment terms and conditions and public policy codified in statutes is why all of the Supreme Court’s attempts to distinguish public-employee-union collective bargaining from other types of political and ideological activities have proven illusory. No such logical distinction ever did, or can, exist. The First Amendment does not empower public-sector unions to take a position on these issues with money taken from workers without their permission.

Worse, the coerced subsidization of public-employee unions is anti-democratic. The interests of public-sector unions sit on both sides of the collective-bargaining table. For example, school board members stand for election, yet they depend heavily on the campaign support of the teachers’ unions, their supposed bargaining “adversaries,” to get elected. Teachers’ unions pour lots of money into these elections and their favorites rarely lose. Board members thus suffer a conflict of interest between their role as employers and managers, and their role as public officials who are supposed to exercise objective judgment on behalf of taxpayers and parents. Naturally, public-sector unions prefer their collective bargaining “negotiations” to occur behind closed doors, and many of their elected “adversaries” share this preference. In Illinois, one state representative has repeatedly introduced legislation to give the public 14 days to renew union contracts prior to approval. The unions and their legislative allies defeated the measure every time. Public-sector unions tilt the collective bargaining process in favor of those who receive benefits and against those who pay the bills — and nobody speaks for the taxpayer.

Wages are not even the most critical element of the compensation package. As taxpayers nationwide are well aware, sweetheart pension deals cut with public-employee unions have created a financial crisis of Greek proportions. This crisis looms especially large in Illinois, which currently staggers under a $130 billion pension liability as the state’s financial health teeters on the brink of junk bond status. Collective bargaining on pension issues has a direct impact on the level of public services, priorities within state and municipal budgets, creation of bonded indebtedness, and tax rates. In most of Illinois, the public’s only chance to discover what elected officials have agreed to give unions is when the final agreement is on the public agenda for approval, at the very end of the process. This is nothing more than a rubber stamp, and taxpayers who complain are brushed aside because their concerns are raised “too late.” As a result of the state legislature’s unwillingness to stop rewarding the public-employee unions with ever more generous benefits, Illinois is now, as CNN phrased it, “America’s most messed-up state.”

Are pensions a key collective-bargaining element? Of course, and a private-sector union that sought benefits on that scale would either be forced to modify its demands or bankrupt the employer and put its members out of business. No such considerations discipline public-sector unions facing a pseudo-adversary that never goes out of business and that pays its bills with taxpayer money. The political ramifications of public-sector collective bargaining over pensions extend far beyond the interests of the unions and the employers — they affect the workers who are also citizens and taxpayers. Workers should not be forced to subsidize positions they might have good reason to oppose.

Public-sector unions represent interests that arise not from civil society, but from inside the government — for the purpose of influencing government itself. That’s why President Franklin D. Roosevelt — no right-wing extremist — said that “the process of collective bargaining, as usually understood, cannot be transplanted into the public service.” A union’s core interests are the jobs and benefits of its members, and its duty is to defend their members’ private interests, vis-a-vis the employer. But in the public sector, Roosevelt wrote, “[t]he employer is the whole people, who speak by means of laws enacted by their representatives. … Upon employees in the [government] service rests the obligation to serve the whole people.” A public-employee union thus dangerously straddles the line between the workers’ private interests and their public obligations. Government employees work for the public and are paid by the public, and at the same time are also taxpaying members of the public. For the state to force them to subsidize one side of important political questions about the spending of taxpayer dollars — a side with which many of them for good reason disagree — is unfair, disrespectful, dangerous, and unconstitutional.

As case after case has eroded Abood’s flawed foundation, the Supreme Court may now overrule Abood entirely and repudiate public-employee unions’ ability to garnish workers’ paychecks for the inherently political act of collective bargaining for taxpayer-funded wages and benefits. These garnished wages come from the paychecks of government employees — paid from taxpayer dollars — to subsidize efforts to expand union power and increase government spending still further: an endless cycle of government funding the demand for its own growth, all at the expense of citizens and dissenting workers who are forced to bankroll the enterprise. This violates the First Amendment. In Janus, the court should require public-employee unions to join the great American tradition of voluntary associations, where participants willingly contribute their time and treasure to common goals.

Recommended Citation: Deborah La Fetra, Symposium: Overrule Abood to protect individual rights (at long last), SCOTUSblog (Dec. 19, 2017, 10:20 AM),