A case that could ultimately change the rules on forced unionization in America had its day in court this week, and is perhaps bound for the U.S. Supreme Court for a defining decision on free speech and unions.
The U.S. Court of Appeals for the 7th Circuit on Wednesday heard oral arguments in the case of two Illinois state government employees challenging the constitutionality of forced union dues.
A district court earlier dismissed the case, Janus v. AFSCME, which specifically deals with the First Amendment rights of public employees who wish to opt out of their unions, and the fairness of a union’s “monopoly” right to speak for individuals.
“One of the most powerful political forces in Wisconsin and certainly in Illinois are government unions … They generally have the loudest voice,” said Mark Mix, president of the National Right to Work Foundation. “Not only do they have the loudest voice but they’ve been granted tremendous privilege to be the sole spokesman, the monopoly bargaining agent for all government employees. And that means they can compel you to accept them as your ‘voice.’”
The Illinois employee plaintiffs are being represented, free of cost, by the Right to Work Foundation and the Illinois Policy Institute’s Liberty Justice Center, free-market organizations that oppose compulsory union dues and membership.
Under a 1977 Supreme Court decision, unions are not allowed to use membership fees to pay for “explicitly political” activities, but they can demand “fair share” fees connected to collective bargaining.
The lawsuit notes some 6,600 of the state’s 46,000-plus employees are forced to make so-called “fair share” payments to unions rather than pay union dues. Fair Share deductions are to go only to essential union representation activities, not political purposes.
The plaintiffs argue that everything a union does, not just overt political activity, involves government redress.
“They [unions] are in a unique position in between taxpayers and elected officials to help to determine how tax money is spent, how government sets priorities, how school districts are run, lots of things that involve ‘necessary government services,’” Mix told Wisconsin Watchdog Wednesday in an interview on the Vicki McKenna Show.
“So the notion that somehow their speech is elevated, no matter what it is … that speech is political by nature because it’s redressing the government,” he said.
Lee Saunders, president of the American Federation of State, County and Municipal Employees said the court hearing represents a “renewed effort by corporate and special interest groups to upend the longstanding rights of people who work in public service … to come together.”
“It would be shameful to see the Circuit Court of Appeals decide the case in favor of wealthy special interests and put the working families and communities at risk,” Saunders said in a statement earlier this week.
What’s a shame, right-to-work advocates say, is to force people to be in unions against their will, at the peril of their jobs.
Some observers say Janus v. AFSCME is the “new Friedrichs case.”
Friedrichs v. California Teachers Association took on the broader issues of mandatory union dues, political speech and association. Following oral arguments in January 2016, it appeared clear that the U.S. Supreme Court would narrowly side with right-to-work advocates in updating the 1977 Abood v. Detroit Board of Education.
A few weeks later, conservative Justice Antonin Scalia died. Scalia had been a deciding vote against unions in previous similar cases. His passing resulted in a 4-4 tie, with the automatic affirmation of the 9th U.S. Circuit Court of Appeals upholding unions’ right to take fees. The famously liberal court made headlines recently for blocking President Donald Trump’s immigration ban executive order.
Mix believes the 7th Circuit also will stand with Abood, the defining case on union dues thus far, and that will trigger a petition for review before the high court, perhaps as early as October and with a new conservative judge replacing Scalia.
Mix said Wisconsin, which became the 25th right-to-work state in 2015, has led the charge on both sides of the public-sector union battle. The Badger State in 1959 became the first state in the nation to recognize public employee collective bargaining rights. In 2011, with the passage of Republican Gov. Scott Walker’s Act 10, Wisconsin reined in the power public sector unions.
“That started the debate all over again about what the implications and ramifications of [forced unionization in the public sector] had been,” Mix said.
M.D. Kittle is bureau chief for Wisconsin Watchdog and First Amendment reporter for Watchdog.org. Contact him at [email protected]