Home / General / Janus v. AFSCME Council No. 31

Janus v. AFSCME Council No. 31


The destruction of public sector unionism that became inevitable when Republicans won the White House is about to happen.

The Supreme Court is set to deal a sharp blow to the unions that represent millions of teachers and other public employees, announcing Thursday it will consider striking down the mandatory fees that support collective bargaining.

The justices will hear the case of Mark Janus, an Illinois state employee who objects to paying fees to the union, which represents 35,000 state workers.

The decision, due by next June, could prove a costly setback for public sector unions in 22 states, including California, where such fees are authorized by law. Labor experts have predicted a significant percentage of employees would stop supporting their union if given a choice. The other 28 states have “right to work” laws that forbid requiring workers to join or support a union.

The union fees case presents the question of whether to overturn a 40-year-old ruling. In that case, Abood vs. Detroit, the Supreme Court said it was reasonable to require all employees, not just union members, to pay to support the cost of bargaining because all of them benefited. By law, the unions are required to represent all employees, including by handling their grievances.

The Abood ruling took a middle approach on the issue. It said workers, even dissidents, can be required to support the union’s core activities, but not its political donations or lobbying. The result is that public employees can be required to pay an “agency fee,” but not the full union dues, which can include money used for campaign donations.

However, in recent years, the court’s conservatives, led by Justice Samuel A. Alito, have called the Abood ruling “questionable” and said that forcing public employees to fund a private group violates their free-speech rights under the 1st Amendment. It is a “bedrock principle,” Alito wrote in 2014, that “no person in this country may be compelled to subsidize speech by a third party that he or she does not wish to support.”

Disagreeing, the four liberal justices have said the court should leave it to the states to set their laws on unions and public employees.

The case now before the high court began two years ago when Republican Illinois Gov. Bruce Rauner, then newly elected, filed a suit in federal court contending that the union fees paid by state employees were unconstitutional. Illinois Atty. Gen. Lisa Madigan, a Democrat, stepped forward to defend the state law. Mark Janus, a child support specialist, and two other state employees asked to join the suit on Rauner’s side.

First, I’d like to thank the voters of the United States for giving us Donald Trump. Second, I’d like to thank the voters of Illinois for Bruce Rauner.

More substantively, this going to absolutely decimate public sector unions such as AFSCME, AFT, NEA, and SEIU. That these are some of the most progressive unions and some of the largest unions is no coincidence. These organizations are major funders of Democratic candidates and provide massive GOTV operations. They also fund campaigns that cost their own members money but lead to greater social and economic justice. SEIU has funded most of the Fight for $15. That movement happened and got so public thanks to SEIU resources. But after the election, SEIU announced a major cut in their expenditures and it’s campaigns like this that have to get the axe. This is why state governments in places such as Wisconsin, Kentucky, Iowa, and Michigan have fought so hard to not only go right to work but to destroy what the public sector can bargain for in their contracts. They want to destroy this important part of the Democratic Party.

Unfortunately, most Democrats simply don’t recognize unions as the critical players that they are in the Party. That goes all the way up to people such as Bill Clinton and even Barack Obama. The former completely distanced himself from unions, as had Jimmy Carter, and signed legislation such as NAFTA over their objections, going far to undermine the private sector unions. Obama was marginally pro-union but completely embraced unionbusting charter education charlatans such as Michelle Rhee and Arne Duncan and never let that go. His administration did some good work in this second term, thanks in no small part to people such as Tom Perez as Secretary of Labor and David Weil, who headed the Wages and Hours Division. But this was not nearly enough to stem the tide against unions.

Unions thought they got a break when Antonin Scalia died. When he died, the previous challenge to public sector fair share was decided 4-4 and kicked back to the lower court. The went all in for Hillary Clinton, knowing that a Democratic president would keep them alive. Hillary Clinton embraced public sector unionism, particularly the teachers’ unions, in a way her husband or Obama would not. The left, or at least parts of the online left, which is not the same thing, loudly proclaimed that telling them they needed to vote for Hillary in the general election because of the open SCOTUS seat was “blackmail.” This, to say the least, was stupid, although one can legitimately argue that it did not pull many voters away from Clinton. And Janus is the result.

There is no way that unions win this. It was largely believed that if any of the five conservative justices were going to vote for unions in Friedrichs, it would be Scalia. We will never know, but his hostile questioning in the oral arguments made it seem awfully unlikely. Neil Gorsuch is a right-wing extremist speaking at Trump hotel property to a Koch Brothers group today. We know how he is going to vote. We know how Kennedy and Roberts are going to vote too since they already voted to destroy the public sector.

The upshot for these unions on the ground is that even in states where public sector unions can still bargain for whatever they want, their numbers are going to decline by 30 to 40 percent in most cases. That will come from disengaged members, conservative members, members angry at the union for something that happened 15 years ago, members who are cheap and don’t mind freeloading. The answer is for public sector unions to organize, and don’t think they don’t already know that, but there is only so much they can do, especially with rapidly shrinking resources. As for the Democratic Party, expect a major blow in GOTV operations and fundraising too. More reliance on corporate funders to make up for the lost union money will be the result.

This is a very bad day for the United States.

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