Janus case threatens unions and much more

Opening arguments were presented on Monday before the Supreme Court of the United States in a case that that has essentially never been easily settled: should those public employees, represented by a union, be forced to pay dues to an organization whose views that they do not agree with; even if those dues get a different name, just for them, or are even partially reimbursed to give equality to their viewpoints, or at least their disagreements with the views espoused by the union?

The case Janus v. AFSCME has hit the media like fireworks on Independence Day, and everyone has shouted, from all sides that this is about First Amendment rights guaranteed in the U.S Constitution, that says that all citizens have the right to free speech, that cannot be infringed upon.

At first blush, this does indeed seem to be the case, but then like a multilayered fruit, peeling back the cut pieces shows less than the sum of many parts. Part one of course is union busting an effort from the state of Mark Janus, Illinois,whose Republican governor, Bruce Rauner has tried just that, even holding it over the heads of his Democratic controlled state assembly as a condition of passing a state constitution mandated budget; and which finally had to be passed, by a veto, after a two year stalemate, as the state bonds were threatening to be get junk bond status by the rating agencies.

Now comes Janus with a case that can threaten the financial and political influences, and even livelihood of public sector unions, (there are 35,000 of them across the nation) especially in Democratic states. That seems obvious to many. Yet, that is only part of commonly held beliefs - in fact Republican states and GOP elected officials have just as much to gain as the Dems, in fact more so, since they support and in return receive support from some of the largest, albeit conservative, group: firefighters and police. Lose them and they lose a significant chunk of dollars that can be used in many ways, such as the gubernatorial races, in states, such as Illinois which is expected to cost as much as $300 million.

“The plaintiff, Mark Janus, is a child-support specialist who works for the Illinois Department of Healthcare and Family Services. Under current law, no one can be forced to join a union, and Janus chose not to become a member of AFSCME, the union that negotiates collective bargaining agreements with the state on the behalf of him and more than 35,000 other public employees in Illinois,” identified Progressive.org.

Adding to the failed efforts of Rauner, to bust the unions, after his budgetary defeat, it is worth noting that Janus is represented by the National Right to Work Legal Defense Foundation Inc., a business-backed anti-union group.

“Right-to-work laws are currently in place in twenty-eight states. The Janus litigation, if successful, would extend them to public-employee unions in the remaining twenty-two, including California and New York, the states with the greatest number of unionized public employees.”

Turning yet another page in the unfolding drama -- a decision is not to be expected to be made until June -- is that, in Illinois, 26 percent of the budget is spent on retiree healthcare, a sizeable amount, and as in other states, there have not been provisions for advanced budgeting, but instead the funds are often made through collective bargaining, or backroom committees, where the final terms are footnoted, some say buried, in thick legislative binders.

As The Washington Post noted, these terms were not even required to be made public until a law in 2008 that forced them into the light of scrutiny, and then the costs were seen to feed underfunded pension programs that promised much, and held little, forcing increases in property taxes. As of 2016, nationwide, there is $1.1 trillion underfunded pensions.

In Illinois there is an unfunded liability of public employee pensions of $129 billion, that is also accompanied by nearly $16 billion in unpaid bills from the budget impasse.

Rooted in an earlier decision, Abood v. Detroit Board of Education, there was a chance to maybe get it right, with Friedrichs v. California Teachers Association yet that was put on hold, after the death of Justice Antonin Scalia.

With Abood in a 4:4 deadlock, there were some provisions made - one was to have the worker that objected to the dues, get a portion back - in cash -- after political activities were stripped out; but as imagined this was a less Solomon like decision in an attempt to separate wheat from chaff, in an effort whose lines were easily blurred.

Over 20 states currently have laws that let unions charge non-members fees for work done on their behalf.

The general counter argument was that the objecting worker was still enjoying the benefits of the union, despite their disagreement with the political arm of the union. And, that is where the First Amendment comes in, since Janus argues that the very process of negotiation, seeps into political speech, or actions, some, or all of which may be objectionable to some members.

As some have believed, the benefits largely fund Democrats, there is truth, in that, and the Post “found that states with stronger unions have higher liabilities. Moreover, they tend to be states run by Democrats. Unionization rates — the percentage of public employees who are union members — are twice the national median in New Jersey and Connecticut, states where 60 and 61 percent of public employees belong to unions. In each of these states, liabilities are also twice the national median, totaling $7,770 and $6,785, respectively, when divided across those states’ total residents.”

But there is a rub: “Second, and more surprising, public unions also secure generous benefits in Republican-controlled states. Contrary to Republicans’ reputation for austerity, GOP lawmakers are frequently aligned with unions, especially those representing police, fire and corrections officers. Such alliances result in promises of future benefits — and the accompanying liabilities. Moreover, workers in these fields are more likely to retire earlier and draw on their public benefits longer than other public-sector employees. Hence, red and purple states like Michigan, Ohio and New Hampshire also have significant liabilities,” said the Post researchers.

In fact Republicans can get twice as much -- $91,000 in union contributions to be exact --  in a state with strong unions, versus the opposite. So, the opposition form the mostly GOP leaders is only when union contributions don’t help their party; otherwise it’s anathema, a fact not always generally known.

Politics aside, this is on one significant level, about the state balance sheet, not just in Illinois, but across the country. That fact, is getting buried in the avalanche of partisan politics, but despite the gnawing chasm, help is needed. And, one way to treat the financial liabilities are to create retiree medical trusts, or go to that old GOP bete-noire, the health care exchanges generated by the Affordable Care Act, known as Obamacare.

Since that is mostly being shoved aside the concentration is on the partisan divide in the Court where it was clearly seen that there was not going to be much change since Abood.

“Illinois Solicitor General David Franklin, who was at the lectern defending the state's compulsory fee scheme, told the Court that "the state has a much freer hand when it manages its personnel as an employer than when it regulates its citizens as a sovereign, and...that freer hand includes broad authority to put conditions on employees' speech.

Unfortunately for Franklin, that argument apparently did not sit well with Justice Kennedy, who often casts the decisive vote in closely divided cases. "What we're talking about here is compelled justification and compelled subsidization of a private party, a private party that expresses political views constantly," Kennedy retorted. A little bit later, Kennedy told Franklin, "it seems to me your argument doesn't have much weight,” reported Reason.com.

Returning to the core of the case, says the Los Angeles Times, “Janus' argument is that, because wages and benefits for public employees have an effect on budgets and taxes, they are inherently "political" issues. Therefore a non-union employee whose fees support negotiations that result in a contract that raises his and other employees' pay is being forced to "speak" on a matter of public concern.”

Accepting that conclusions, the Court would undermine “the view it has expressed in other cases that public employees' 1st Amendment rights aren't identical to those of private citizens — as the lawyer for the state of Illinois suggested at Monday's argument,” they note.

Justice Stephen G. Breyer suggested that the fees, seen earlier, should only go towards those that affect “wages, hours [and] working conditions”, and not to any “political” activities; and to make it explicit that  these"fair share" fees do only that, which are subject to collective bargaining under state law, is one direction the Court might take in June.

In the larger world the consequences of a complete overturn, as Justice Elena Kagan noted, if the Court were to rule for Janus, labor laws in 24 states, the District of Columbia and Puerto Rico “would be declared unconstitutional and thousands of municipal contracts covering millions of workers would be invalidated,” creating havoc and chaos for an important block of U.S. employees.

"What would be the justification for doing something like that?" she asked Janus' lawyer.

Indeed, and the question has become a national one; “Today’s economy is rigged against working people in favor of the wealthy and the powerful,” AFL-CIO Massachusetts President Steven Tolman said. “It’s not by accident. Corporate CEOs and the politicians who do their bidding have written the rules in favor of their own special interest, and now those same corporate billionaires have taken the case Janus v. AFSCME to the Supreme Court, and it’s not done to help us.”

American Federation of Teachers president, Randi Weingarten wrote in an email to members, on Tuesday, that “This case isn’t about petitioner Mark Janus, it’s about defunding unions. It’s about who will have power in our country—working people or big corporate interests. That’s why it’s being funded by the Koch brothers, the DeVos family, and other wealthy and corporate interests. First, they pledged $80 million to “defund and defang” unions. Then, the Kochs, after getting the Trump tax cut, upped the ante with $400 million to undermine public education and “break” the teachers unions. And now, with the Janus case, they are pushing to prevent workers from having a union at all. Why? Because unions are our vehicle to fight for and win a better life for people, and corporate interests see that as a threat to their power.”

Justice Ruth Bader Ginsburg said that without the fees in place, unions would be deprived of the monies they need to advocate for the people they represent. Presciently, she said “not only would people opposed to the union stop paying fees, but also people who want the union’s representation without the cost,” said the Daily Northwestern the student paper at Northwestern University in Evanston, Illinois.

“You’ll have a union with diminished resources, not able to investigate what it should demand at the bargaining table, not equal to the employer that it faces,” Ginsburg said

In a Tweet posted after oral arguments, Rauner, who attended the proceedings, said he was confident that the Supreme Court would side with “free speech” for workers in state government, and that “The gravity of the Court’s decision will be felt not just in Illinois, but across America.”

Totally silent, on Monday, was Neil Gorsuch the newest justice on the court and for awhile the only victory claimed by President Donald Trump, who as an established younger conservative, and has previously been downright loquacious; at his first case he practically bubbled over, peppering attorney's with questions.

Considering his pro-business record, his vote in support of Janus would create the resulting chaos that Kagan predicted.

This blog profiled him a year ago and noted, “What has been examined by concerned liberals is his support for the Hobby Lobby decision decision which says that business owners do not have to violate their religious beliefs to fulfill the law - in this case the contraceptive mandate of the Affordable Care Act. Seen as a landmark victory by those that support religious freedom the decision also affected another case with The Little Sisters of the Poor, a Roman Catholic women's religious order.

For the former he wrote: “The ACA’s mandate requires them to violate their religious faith by forcing them to lend an impermissible degree of assistance to conduct their religion teaches to be gravely wrong.”  And, for the latter he wrote, ““When a law demands that a person do something the person considers sinful, and the penalty for refusal is a large financial penalty, then the law imposes a substantial burden on that person’s free exercise of religion.”

If Gorsuch sees Janus’ first amendment rights violated, and possibly views them in the light of legislative sin, then risking the wellbeing of public sector worker rights, might just be worth it.