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Good Ideas That Will Go Nowhere


International Union of Operating Engineers Local 150 has been pursuing a sophisticated legal strategy that forces conservatives to defend their blatant anti-union legislation and court decisions. When Indiana passed its right to work law, IUOE challenged it in court with a very strong legal case. But of course conservative justices just didn’t care and ruled against them.

With the five conservatives on the Supreme Court about to eviscerate public sector unions in the Janus case that will create national right to work for public workers, IUOE 150 is developing a legal argument that it could be used to help unions.

Unfortunately, for the special interest groups that are pushing this agenda, the ramifications of a win will have the opposite of the desired effect. If not bargaining is protected free speech, then bargaining will conversely be protected free speech, giving union workers new protections that we’ve never enjoyed before. For example:

Governor Scott Walker’s now infamous Act 10, the law that destroyed public sector collective bargaining in Wisconsin, will be declared an unconstitutional, content-based restriction on speech and association.

Every state in America will now be subject to bargaining with their public sector employees, even if they didn’t previously.

Local municipalities will be subject to numerous taxpayer lawsuits based upon forced contributions to lobbying groups.

The municipal lobbying industry, currently an extremely large source of revenue for lobbyists, will be decimated as taxpayers now have a First Amendment right to demand their tax dollars are not used for lobbying or political advocacy.

Public Sector pensions will be adversely affected as participants demand that their forced pension contributions are not used for corporate speech.

Municipal advertising, tax increment financing, and all other types of tax breaks (think Foxxcon in Wisconsin) will be subject to litigation based upon taxpayers’ First Amendment rights to opt-out of this type of speech. The same burdensome calculations that are currently leveled only upon unions would become widespread.

To begin, it is the position of IUOE, Local 150 that if the Janus Court overrules decades of precedent on First Amendment grounds, that same rationale should be applied to taxpayer funded municipal lobbying. For example, countless Illinois municipalities are dues-paying members of the Illinois Municipal League (“IML”), which blatantly engages in widespread lobbying. Janus, through the Liberty Justice Center, essentially argues that “… [T]he government forcing individuals to support a mandatory lobbyist or political advocacy group” would violate the First Amendment of the United States Constitution. Thus, if Janus’ argument in fact carries the day, it follows that municipalities would not be able to freely, and without recourse, fund their lobbying efforts with taxpayer monies without violating that same constitutional principle.

The problem with this is that conservatives judges simply won’t give a shit. They already subject unions to speech restrictions that don’t exist for other people. And that will continue. Conservative judges, including the five on the Supreme Court, will just create legal reasons to deny labor’s positions based on the extraordinarily rock solid constitutional principle of fuck unions. While I think that IUOE knows what is going to happen, it would be the height of naivete to believe that the Supreme Court will accept this reasoning.

None of this is to say that IUOE shouldn’t keep trying. Unions very much do need to articulate a new understanding of law that would force a consistent application of the principles used against unions to be used against everyone else as well. Someday, down the road, if Democrats ever have the chance to retake the Supreme Court, this work might make a difference.

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