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Alaska Leading the Latest Assault on Unions

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Republicans are moving step by step closer to their long-term goal of declaring unions illegal. They are getting more brazen about it too. Fresh off the Alaska shitshow to destroy its higher education system, it now seeks to effectively eliminate public sector unionism.

The aftershocks of the Supreme Court’s blow to organized labor continue to reverberate. Janus v. AFSCME, the court’s 2018 5–4 decision, granted public sector employees in every state a right to reap the benefits of union representation without paying for them. Backers of the litigation intended to weaken unions’ bargaining power and drive them into financial ruin. Many workers seized upon this opportunity to free-ride: After the ruling, at least 210,000 workers who previously paid fair share fees (also known as agency fees) to cover the cost of collective bargaining stopped paying a penny to their unions. AFSCME, the union at issue in Janus, lost a staggering 98 percent of its fair share fee payers.

But what about public sector employees who want to retain union membership and pay dues? On Tuesday, Alaska Attorney General Kevin Clarkson announced a plan to make it more difficult for the state’s employees to pay for union membership even if they want to. Clarkson’s scheme would place onerous new burdens on union membership in the name of free speech, using the power of the state to effectively dissuade workers from bargaining collectively. It goes so far beyond Janus that it creates First Amendment problems of its own.

To no one’s surprise, Janus led to a mass exodus of fair share fee payers. But membership in the country’s major public sector unions has remained relatively stable or even grown slightly. Because the outcome of the case was entirely predictable, organized labor was immediately prepared to counteract it. The small uptick in membership is not always enough to counteract the effect of Janus on the union’s bottom line, though it has forestalled financial ruin.

Clarkson wanted to change that. In response to a request from Alaska Republican Gov. Michael J. Dunleavy, the attorney general urged an overhaul of the process by which the state’s public workers participate in unions. Clarkson took a sweeping view of Janus’ requirement that workers who wish to “waiv[e] their First Amendment rights” by supporting a union must “clearly and affirmatively consent” to any payment with “clear and compelling evidence.” Right now, under Alaska law, unions collect payroll deductions from union members who provide written authorization. That might seem to meet the Janus standard; there isn’t a much clearer form of consent than a declaration of an individual’s intent.

But to Clarkson, explicit consent is not enough. The attorney general insisted that the current system does not “ensure that [state] employees are being told exactly what their First Amendment rights are before being asked to waive them.” Moreover, “there is no guarantee that the unions’ forms clearly identify … information about the consequences of the employee’s decision to waive his or her First Amendment rights.” Nor is there any “guarantee that the employee will be told what kinds of speech a particular union will engage in.” According to Clarkson, “without that knowledge, a waiver of the employee’s rights against compelled speech can hardly be considered knowing and intelligent.” Finally, because workers provide consent directly to the union, “this process is essentially a black box the State cannot peer inside of.”

To remedy this putative problem, Clarkson recommended that the governor create an online system and new written consent forms that repeatedly ask union supporters if they’re sure they want to pay. Employees must tell the state that they wish to pay union dues or fair share fees every year. If they miss the opt-in window, they don’t pay that year.

Clarkson’s plan allows the state to warn workers about the “consequences” of their decision to “waive [their] First Amendment rights.” They may be told, as Clarkson wrote, that if they help fund the union, they will be “powerless to revoke the waiver of their right against compelled speech.” And if they become “unhappy with the union’s message,” they will still be “forced … to see their wages docked each pay period for the rest of the year to subsidize a message they do not support.”

This is the bigger tell:

This strategy appears to come straight from another conservative playbook. If it’s implemented, unions would be treated like abortion clinics in red states: heavily regulated and compelled to provide a state-mandated script explaining all the reasons why workers should not want to join a union. Employees themselves, meanwhile, would be treated like abortion patients in red states: forced to hear the state explain why they should not make a certain choice before they are allowed to choose.

The anti-abortion parallel is no coincidence. Clarkson is a staunch conservative who previously worked as an anti-abortion and anti-LGBTQ activist. He defended a homeless shelter’s right to turn away trans people and a borough’s ability to bar Jews and Muslims from delivering invocations at assembly meetings. His recommendation to Dunleavy seems to draw on his earlier advocacy as a culture warrior.

Bingo. Republicans want to do to unions what they are doing to abortion clinics. And there’s every reason to think that this might work. I mean, if Alaska creates this crazy policy, it’s possible that it is unworkable in its current form. This is not fully thought out. But do you think the Supreme Court would get in the way? Ha ha ha ha ha, I should take this material on the road. The only way this would not get 5 votes is if Roberts decided it was too loco to do in one fell swoop. But the overall path is right there.

In conclusion, every public sector worker who did not vote for Hillary Clinton is partly responsible for the decline of their unions in this country.

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