This is the second of two posts on the political dimensions of the Friedrichs case. The first post can be read here.
Before Justice Scalia’s sudden death, it appeared that, through the Friedrichs case, the Supreme Court’s conservative majority would succeed in imposing “right to work” status on public sector working people across the nation. As discussed in a previous post, there were signs that this conservative bloc was looking to deliver its decision in time to sideline the four largest public employee unions – the American Federation of State, County and Municipal Employees (AFSCME), the American Federation of Teachers (AFT), the National Education Association (NEA) and the Service Employees International Union (SEIU) – from the 2016 elections. Not coincidentally, these are also the unions that have the strongest political operations in the American labor. If Scalia had not died and these intentions were realized, what would have been the impact on the 2016 election and beyond?
To grasp the full impact of a negative Friedrichs decision, had the conservative justices been successful in their plans, it is necessary to gauge the effect that public employee unions have on the political activism of their members. Ironically, insight into this question can be gleaned from an essay that exhibits a critical attitude toward public sector unions and collective bargaining, Patrick Flavin’s and Michael Hartney’s “When Government Subsidizes Its Own: Collective Bargaining Laws as Agents of Political Mobilization.”1 (Hereafter, F&H.) While not without analytical flaws, a number of which will be discussed below, F&H contributes to the literature with a new way of measuring the effect of teacher unions on teacher political activism and engagement, above and beyond voting. (Teachers have always voted at consistently high rates, with over 90 percent turnout in presidential elections and over 80 percent in mid-term elections.) Consequently, F&H places in relief the union contribution to member political activism that was targeted by the SCOTUS conservatives.
Analyzing five measures of political participation in election year surveys that have been undertaken by the American National Election Studies (ANES) since 1948, F&H find that before the development of strong teacher unions and collective bargaining in American education, the rate of political activism by teachers was only “slightly higher” than that of non-teachers.2 But with the emergence of teacher unions and the advent of collective bargaining in education in the late 1960s and early 1970s, teachers begin to participate in the political process at a “significantly higher” rate than non-teachers – nearly double the rate, according to F&H’s analysis of the ANES surveys.3 Using multivariate modeling across different states and different time periods to isolate the effect of teacher unions and collective bargaining legislation on teacher political participation, F&H conclude that it is “quite large.”
Students of American labor history have always known that unions functioned as “schools of democracy” for their members, but F&H’s approach allows us to measure for the first time the extent to which teacher unions engender political engagement and participation among their members.4
The logic of F&H’s argument supports efforts to undo public sector collective bargaining, such as the “right to work” laws undertaken by Tea Party dominated governments in Michigan and Wisconsin in the wake of the 2012 elections. In their view, state laws which authorized collective bargaining “conferred an assortment of benefits (often formal and contractual) to teachers unions at the organizational level, benefits that in turn made it easier and less costly for the unions to focus on recruiting rank-and-file teachers to participate in politics.”5 While there is no question that labor legislation shapes the organizing environment in which unions exist, making it more or less hospitable to collective action by working people, F&H suggest that laws authorizing public sector collective bargaining are illegitimate “subsidy-like benefits” and “patron like support” from the state. To this end, they make an untenable distinction between the effect of teacher unions and the effects of collective bargaining laws on teacher political activism, arguing that it is the law, separate and apart from the union, which is the primary impetus for teachers’ high rates of political participation. But without the union, there would be no vehicle for involving teachers in the political process. Indeed, F&H trip over their own argument in this regard, as they view as central to their thesis the fact that “teachers (but not other citizens) were significantly more likely to report being asked to participate in politics by an outside (nonparty-based) group after the adoption of a mandatory bargaining law.”6 That group, they acknowledge, is the union. The “ask” comes from a fellow teacher who is already politically active through the union.
Given the importance of an active citizenry in a democratic polity and the long-term secular decline in voting and political participation rates in the American public, one might think that the significantly higher rates of political participation among teachers would be seen as a civic success story, worthy of emulation. But not in our age of political polarization; instead, the promotion of civic virtue runs up against the political reality that, as F&H put it, “today the eight million members of public employee unions are a cornerstone of the Democratic electoral coalition.” A Republican Party based on a declining share of the American people has seemingly decided that its path to victory is not to broaden its appeal, but to shrink the electorate and drown elections in unaccountable “dark money.” To the extent that the impressively high rates of political activism and participation of teachers and other Democratic Party-leaning public sector workers could be diminished, the vote for Democratic candidates could potentially be suppressed, thus improving the electoral prospects of the Republican Party. Through Citizens United and in Shelby County, the conservative majority of the Supreme Court seemed prepared to use the power of the Court to support this strategy, and all evidence indicated a willingness to go further down this road in Friedrichs.
Bad Faith Arguments against Public Sector Unions
There is one central problem for a strategy of shrinking the electorate and political participation: the civic faith of American democracy holds sacred the right to vote and the voice of the citizen. One attacks them openly and explicitly at one’s political peril. As a consequence, we have seen the development of what can only be described as bad faith arguments for restricting the right to vote and political participation. Voter suppression laws are posited as necessary checks on voter fraud, even though documented cases of fraud are extraordinarily rare in the United States. And union suppression laws, such as “right to work” legislation and court decisions designed to diminish political participation among union members, are postulated as necessary checks on illegitimate union power, as if working people should not be able to organize themselves for collective action.
F&H’s article provides a revealing illustration of the second argument, centered on the claim that the high rates of teacher political participation are the product of illegitimate union access to public resources. In a telling absence, the F&H analysis of teacher unions and collective bargaining laws as “agents of political mobilization” manages to avoid all mention of the most basic of facts on the subject – that under Abood, non-member “fair share fees” do not include the cost of union activities that are political, including lobbying for legislation that benefits all teachers and public education, and that union expenditures on election campaigns are funded by voluntary donations (generally known as COPE7 contributions) that individual union members choose to make for that purpose, rather than from member dues.
Even more revealing is the case F&H mount on behalf of their contention that public resources fuel the high rates of teacher political participation. It is difficult to decide which is more problematic in this regard, their view of labor relations or their understanding of political campaigns. On the first count, they manage to find fault with the most elementary parts of U.S. labor law, such as the requirement that employers provide unions with the names and contact information of all the employees that are working in the bargaining unit. If the union is to communicate with and properly represent all employees, it must have access to this information, and that is why this provision is a universal feature of labor relations law, private as well as public, not only in the United States, but in every country that has free and independent unions.
On the second count, F&H find political advantage in practices which, even if accurately described, would be of very little value in electoral campaigns and in political mobilization. For example, F&H highlight a contractual provision guaranteeing what they describe as “the equivalent of congressional franking privileges… the unlimited use of the school district’s internal mail service.” In practical terms, this hyperbolic language refers to the fact that American schools have historically had in one central office a number of cubby holes in which printed notices, memos and mail were distributed to all of the individuals who worked in the school. Union representatives have access to these cubby holes to distribute notices to their membership in the school, such as the time and place of an upcoming union meeting. When individual administrators have attempted to disrupt such communications, unions have negotiated a right of access into their collective bargaining agreements.
Does the union’s ability to distribute notices to its members through this one central office confer the sort of public resource advantage that makes it “easier and less costly for the unions to focus on recruiting rank-and-file teachers to participate in politics,” as F&H contend? First, it should be noted that the “internal mail” systems envisioned in these contracts are increasingly falling into disuse, as districts and schools have found email to be a much more efficient mode of internal communication. Second, there have always been reasonable restrictions that districts have placed on the use of their internal communications, consistent with their public status: as a rule, they cannot be used for commercial purposes or personal profit, or for political or religious recruitment. Third, with the advent of email, teacher unions have increasingly gone to the extra effort of obtaining personal, non-work emails from members, as this allows the union to conduct privileged communications with its members when it needs to do so. Lastly and most importantly, if teacher unions were relying upon materials placed in member’s cubby holes or mass emails to mobilize political participation, they would never have produced anything approaching the high rates of teacher political participation that now exist. Any veteran of political campaigning will tell you that both of these communications media are of very little value in engendering meaningful political involvement. (It will be the exceptional reader of this blog who even reads mass emails making political solicitations, much less finds themselves moved to action by them.) Teacher unions know from experience that their members are most likely to become politically engaged as a result of direct member-to-member conversations – ideally in the workplace, either on a break or at the end of the workday, although canvasing conversations at the front door or over the telephone, and even personal appeals through social media can also work. Not surprisingly, teacher unions do what works. And, contrary to F&H, the member-to-member conversations that work clearly do not rely upon any public resources.
Things have not gone well for the Republican Party this election season. The dog whistle racial politics that has been its trademark for half a century have finally backfired, and it is in danger of being branded for a generation as a party of racial and religious bigotry and “know nothing” anti-immigrant prejudice. Its two leading candidates occupy the extremes of American political life, in a world ruled by what Richard Hofstadter called the “paranoid style of politics.” If either man wins the nomination, many of the party regulars have indicated that they will sit on their hands, perhaps resulting in a crushing electoral defeat. If the party elite hands the nomination to a third candidate through back-room maneuvers and over the heads of the three-quarters of the Republican Party primary electorate who voted for the two frontrunners, he will have little legitimacy and may spark abstention on the part of that electorate. Either way, it is hard to see how the party escapes a painful political fracture. In this context, the inability of the conservative justices on the Supreme Court to sideline, via Friedrichs, the political operations of public employee unions that are mostly aligned with Democratic Party candidates has received little attention. But it will most certainly have an important effect on the November election.
1 American Journal of Political Science. Vol. 54, No. 4. October 2015. Hartney was the author of a Newsweek commentary based on this academic article.
2 Five measures of participation are used:
- Trying to influence the vote of others by talking with them;
- Working for a political campaign;
- Displaying a button or a sign in support of a candidate;
- Donating money to a candidate’s political campaign; and
- Attending a meeting or rally in support of a candidate.
3 F&H leave the impression that this change is entirely a function of increased political participation by teachers. But the reality is more complex: political participation of teachers was increasing fourteen percentage points at the same time that political participation of non-teachers and the general public was declining by ten percentage points, so the magnitude of difference, which grew from twenty-three percentage points to forty-seven percentage points, is a function of both trends working in tandem. Without diminishing the accomplishment of American teacher unions in the civic sphere – it was a counter-cultural achievement to increase political activism – it is not correct to leave the impression, as F&H do, that the difference in political participation is entirely an effect of teacher unions and collective bargaining.
That said, since ANES surveys do not distinguish between public school teachers and private school teachers, the effect of collective bargaining and teacher unions on teacher political participation is understated: the union effect on public school teachers is diluted by the inclusion of non-union private school teachers in the universe.
4 See, for example, Clayton Sinyai, Schools of Democracy: A Political History of the American Labor Movement. Ithaca, NY: ILR Press, 2000.
5 F&H follow the established practice among anti- union academics in describing such laws as “mandatory collective bargaining.” In fact, what the laws require is that school districts respect the democratic decision of teachers, whether it is to form a union and bargain collectively, to remain unorganized or to decertify a union that was previously their representative. The use of this language is important, because “mandatory” leaves the impression that the law overrides the democratic choice of teachers, when the law actually respects it.
6 The political need to deny agency to teachers and their unions leaves F&H with a one-dimensional view of American teacher unionism that is unable to explain basic developments. In a footnote, they reject the possibility that teacher activism played a role in the development of collective bargaining laws, leaving nothing but a series of contingent factors to offer as an explanation for why, starting in the 1960s, state after state would enact legislation enabling teachers and other public employees to bargain collectively. But history tells a different story: the historic 1963 collective bargaining agreement in New York City, which was the inspiration for teacher unionists across the nation, was won only after two strikes. The collective bargaining laws of the late 1960s and early 1970s were both a response to political organizing and turmoil among teachers, including a wave of strikes, seeking to channel the fledging teacher union movement into less disruptive modes of expression, as well as a means for teachers to further their organization and political and economic power. As far as teacher political activism is concerned, these laws were both cause and effect.
7 An acronym for “Committees on Political Education.”