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The Political Calculus Behind Friedrichs v. California Teachers Association

When the Supreme Court of the United States (SCOTUS) delivered its March 29 ruling in Friedrichs v. California Teachers Association, the announcement of a 4 to 4 deadlock was something of an anticlimax.  Ever since the sudden February 12 death of conservative Justice Antonin Scalia, SCOTUS watchers had anticipated just such an impasse. Based on Scalia’s questions when the case was argued before the Court a month before his passing, the late justice appeared to be the fifth vote for a decision that would have overturned 40 years of precedent – in effect, imposing “right to work” status on all those working in the public sector and eviscerating their unions. Without this vote, the four remaining conservative justices failed to constitute a majority.

In the days following this decision, observers across the political spectrum described the judicial deadlock in Friedrichs as a victory for public sector workers and their unions (at least for the moment). A more definitive resolution of the issue awaits Senate confirmation of Scalia’s successor, whether President Obama’s pick, Judge Merrick Garland, or someone yet to be named by the next president.

But, so far, what has been missing from most media commentaries is a recognition of the immediate political import of the Court’s impasse, and most especially, its impact on the 2016 election campaign. To understand the full political dimensions of Friedrichs – how the Court’s conservative majority seem to have been prepared to use the case to sway the election – a brief review of the case is necessary.

Friedrichs in the Making

On June 30, 2014, the very last day of its 2013-14 term, the Supreme Court delivered what the New York Times described as its “first salvo in the war against unions.” Writing for the majority in a 5 to 4 decision in Harris v. Quinn, Justice Samuel Alito not only struck down the use of “fair share fees” (sometimes called “agency fees”) for unionized home daycare workers, but also invited challenges to the Court’s own 40-year old precedent, Abood v. Detroit Board of Education, the 1977 case which had established the constitutionality of such fees in the public sector.

In Abood, a 6 to 3 Supreme Court majority ruled that individuals covered by a public sector collective bargaining agreement could not be required to be members of the union or financially to support that union’s political advocacy on behalf of its members. Should an individual choose not belong to the union, the Court decided, she would still have to pay a discounted “fair share fee" for the non-political representation that the union is still obligated to provide, as a matter of law, to members and non-members alike, including the benefits of collective bargaining agreements and the enforcement of all workers’ due process protections. The Abood ruling would secure the First Amendment rights of individuals, the Court reasoned, while ensuring that the union’s ability to secure the common good of the employees would not be undermined by “free riding.” In Harris v. Quinn, Alito took what Justice Ruth Bader Ginsburg described as “potshots” at Abood, sending a signal that the conservative majority would welcome a case which challenged this precedent.

The Center for Individual Rights (CIR), a right-wing legal advocacy organization* that has been in the forefront of attempts to dismantle the Voting Rights Act and affirmative action, quickly jumped on Alito’s invitation. As plaintiffs in a legal challenge to Abood, the CIR recruited the Christian Educators International Association, a fundamentalist religious organization that opposes teacher union support for sex education, women’s reproductive rights and LGBT rights, and ten similarly minded individuals, including Rebecca Friedrichs. CIR sought the fastest possible track for the case, asking lower courts to forego the usual evidentiary hearings and issue summary rulings against its own petition in order to speed its passage to the Supreme Court.

SCOTUS Takes Up Friedrichs

On the last day of its 2014-15 term, the Supreme Court granted a writ of certiorari, indicating that it would hear the Friedrichs petition to overturn lower court rulings and its own Abood precedent.

The established rules of jurisprudence dictated that SCOTUS should quickly have ruled against the Friedrichs plaintiffs. Not only were they asking the Court to overturn its own 40-year old precedent, but asking to do so without a court record that documented changes in the conditions which had been in place when Abood was originally decided; such a record is commonly considered to be a prerequisite for the Court overturn one of its own precedents. Moreover, in 1991, while sitting on a lower federal court, Justice Scalia had moved to uphold the Abood precedent in Lehnert v. Ferris Faculty Association. At that time, Scalia wrote that:

(w)here the state imposes upon the union a duty to deliver services, it may permit the union to demand reimbursement for them; or, looked at from the other end, where the state creates in the nonmembers a legal entitlement from the union, it may compel them to pay the cost… What is distinctive, however, about the “free riders” who are nonunion members of the union’s own bargaining unit is that in some respects they are free riders whom the law requires the union to carry – indeed, requires the union to go out of its way to benefit, even at the expense of its other interests.

The tenor of the January 11 oral arguments, however, left little hope that the conservative Supreme Court majority would respect the established rules of jurisprudence or its own precedents, or that Justice Scalia felt bound by his unequivocal 1991 opinion. The questions from four of the five conservative justices, including Justice Scalia, were overtly hostile to “fair share” fees, public sector unions and Abood. As is his usual practice, Justice Thomas asked no questions, but there was no doubt about his vote.  Public sector working people and their unions began to prepare for the worst, expecting that the Court would issue a negative decision on the last day of its 2015-16 term, as it had in its two previous years.

In the weeks between the oral arguments and Scalia’s death, there were troubling signs that the Court majority was prepared to extend its judicial activism beyond even its current wide ranging frontiers. Sources close to the Court passed the word that the five conservative justices were pushing to deliver a decision quickly, and that there was consideration of going beyond a prohibition of “fair share fees” and requiring public sector unions to sign up all of their current members anew. In a case that was already quite controversial, with much potential damage to the Court’s standing and legitimacy, why would the conservative majority not be content with the extraordinary step of overturning Abood and imposing a “right to work” ban on “fair share fees” in the public sector? Why the need to push even further?

The Political Calculus of the Conservative Justices

The four public sector unions that would have been most affected by a negative decision in Friedrichs – 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) – are not just the four strongest unions in an American labor movement that has been weakened by decades of decline in the ranks of private sector unions. They are also the four unions with the most effective political operations, with the greatest capacity to mobilize their members and put “boots on the ground” in electoral campaigns. If they were sidelined in the 2016 campaign, the voice of organized working people would have been greatly diminished, and the Republican Party and economic elites would have gained a considerable electoral advantage.

If the Supreme Court had moved quickly in Friedrichs and required public sector unions to re-recruit all of their members, these unions would have faced an unprecedented existential challenge. When “right to work” legislation was passed in 2012 in Michigan, until then a union stronghold, massive amounts of outside right wing money flowed into a campaign to convince members that they should drop out of their unions. A similar effort would certainly have been mounted nationwide in the wake of a negative Friedrichs decision. The public sector unions would have had no choice but to focus their energies on signing up millions of members anew, rather than on organizing and mobilizing those members for the 2016 election. Before Scalia’s death, therefore, Friedrichs was about to become the fourth major case – following Bush v. Gore, Citizens United v. FEC, and Shelby County v. Attorney General Holder** – in which the conservative majority of the Court would use its power to intervene directly in the electoral process and secure an important advantage for the political right.

How great an impact would such a decision have had on the political process and the 2016 election campaign? I will take up this question tomorrow in a second post on this subject.

*****

* CIR is financed by the Koch brothers and the Scaife, Bradley and Olin foundations, among others – many of the very same figures behind right-wing “dark money” in the election.

** Shelby County v. Attorney General Holder is the 2013 case that overturned the core of the Voting Rights Act and gave full vent to the passage of voter suppression laws.

Issues Areas

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Killing unions. In 2015, Republicans in the 114th Congress introduced bills to establish a federal Right to Work law. If passed, this legislation would be a giant leap forward in dismantling unions in all states. For the present, the proposed House bill (HR 612) and Senate bill (S-391) are stalled in committees. Both are framed around model legislation offered by the National Right to Work Committee and the American Legislative Exchange Council (ALEC). ALEC’s model Right to Work law for state legislators is not different from the proposed federal version, But, there is a new union-busting kid on the block, working from the bottom up. Unlike ALEC’s focus on state policies, ALEC’s new baby, the “American City County Exchange” produces model ordinances for local self-governing jurisdictions such as a county, city, town, village, borough, parish, or district. When an ordinance is passed and included in a larger set of laws, it may be called a “chapter.” Members of the ACCE are pushing their preferred ordinances/chapters into local government, but without seeming to be heavy-handed. Here is part of the ACCE pitch to local elected officials: “As municipal leaders, you make daily decisions that directly impact your neighborhood roads, schools and property taxes. (Note that schools are mentioned). How much more effective could you be if you had access to ground-breaking research and the nation’s top industry experts, or if you could share ideas and experiences with your counterparts from around the country so you can learn what works without repeating others’ mistakes?”… “Members of the American City County Exchange receive academic research and analysis from policy experts who work with issues, processes and problem-solving strategies upon which municipal officials vote. Provided with important policy education, lawmakers become more informed and better equipped to serve the needs of their communities. Join us today.” ACCE has tiers of membership. Elected officials pay a small fee to join and receive propaganda and perks. In 2014, the fee was only $100 for a two-year membership. Membership gives them reduced rates for conferences, free publications from ALEC, and ready-to-use model ordinances/chapters that comport with ALEC’s market-based view of all things wonderful. In contrast, corporations pay $7,000 to $25,000 for ACCE membership. This gives them a seat at the local governance table, where they propagate their talking points, white papers, and ”expert” opinions, and ready-made ordinances to the wined and dined elected officials. Higher fees give corporations a role in making decisions about which model legislation to push. Here is a lightly edited version of the American City County Exchange’s “Local Right to Work Ordinance,” with a few notes I have added in parentheses. Summary: No employee need join or pay dues to a union, or refrain from joining a union, as a condition of employment. The ordinance establishes penalties and remedies for violations of the ordinance’s provisions. Model Policy: Section 1. This ordinance may be cited as the Local Right to Work Ordinance. Section 2. It is hereby declared to be the public policy of the (Insert City or County), in order to maximize individual freedom of choice in the pursuit of employment and to encourage an employment climate conducive to economic growth, that the right to work shall not be subject to undue restraint or coercion. The right to work shall not be infringed or restricted in any way based on membership in, affiliation with, or financial support of a labor organization. Section 3. The term “labor organization” means any organization of any kind, or agency or employee representation committee or union, that exists for the purpose, in whole or in part, of dealing with employers concerning wages, rates of pay, hours of work, other conditions of employment, or other forms of compensation. Section 4. No person shall be required, as a condition of employment or continuation of employment: (A) to become or remain a member of a labor organization; (B) to pay any dues, fees, assessments, or other charges of any kind or amount to a labor organization; (C) to pay to any third party any pro-rata portion of dues or charges regularly required of members of a labor organization; or (D) to be recommended, approved, referred, or cleared by or through a labor organization. Section 5. It shall be unlawful to deduct from the compensation of an employee any union dues, or other charges to be paid over to a labor organization, UNLESS the employee has first presented, and the employer has received, a signed written authorization of such deductions, which authorization may be REVOKED by the employee AT ANY TIME by giving written notice of such revocation to the employer. (Nothing requires the employer, or the worker opting out of dues, to notify the union’s financial officer. This is an easy path to destabilize union financing and financial records). Section 6. Any agreement, written or oral, implied or expressed, between any labor organization and employer that violates the rights of employees as guaranteed by this chapter is hereby declared to be unlawful, null and void. Any strike, picketing, boycott, or other action by a labor organization for the sole purpose of inducing or attempting to induce an employer to enter into any agreement prohibited under this chapter is hereby declared to be for an illegal purpose and is a violation of the provisions of this chapter. (Union members who protest this ordinance are automatically judged “unlawful.” Free speech and freedom of assembly are steamrolled.). Section 7. It shall be unlawful for any person —to compel or attempt to compel an employee or prospective employee to join, affiliate with, or financially support a labor organization or to refrain from doing so. —to cause or attempt to cause an employee to be denied employment or discharged from employment because of support or nonsupport of a labor organization, —to induce or attempt to induce any other person to refuse to work with such employees. —to intimidate or threaten to intimidate an employee’s or prospective employee’s parents, spouse, children, grand-children, or any other persons residing in the employee’s or prospective employee’s home, —to damage or threatened damage to an employee’s or prospective employee’s property. (The ordinance is framed as if hostile acts, threats, and intimidation could only come from workers or prospective workers, never from employers). Section 8. Any person who directly or indirectly violates any provision of this chapter shall be guilty of a misdemeanor, and upon conviction thereof shall be subject to a fine not exceeding (insert amount) or imprisonment for a period of not more than (insert time period), or both such fine and imprisonment. (Unlike most state Right to Work laws, this local version criminalizes violations. The model ordinance does not stipulate the severity of misdemeanor. Typical misdemeanor classifications are: Class 1 or A, fines of up to $5,000, and/or a jail sentence of up to 12 months; Class 2 or B, fines up to $1,000, and/or a jail sentence of 6-9 months; Class 3 or C, fines up to $1,000 and/or a jail sentence of up to 3 months; Class 4 or D, fines up to $500 and/or a jail sentence of up to 30 days. ). Section 9. Any employee harmed as a result of any violation or threatened violation of the provisions of this chapter shall be entitled to injunctive relief against any and all violators or persons threatening violations and may in addition recover any and all damages, including costs and reasonable attorney fees, resulting from such violation or threatened violation. Such remedies shall be independent of and in addition to the penalties and remedies prescribed in other provisions of this chapter. (I think that Section 9, in itself, is an act of intimidation: Comply or else). Section 10. It shall be the duty of the prosecuting attorneys of each county to investigate complaints of violation or threatened violations of this chapter and to prosecute all persons violating any of its provisions, and to take all means at their command to ensure its effective enforcement. Section 11. The provisions of this chapter shall apply to all contracts entered into after the effective date of this chapter and shall apply to any renewal or extension of any existing contract. Section 12. An emergency existing therefore, which emergency is hereby declared to exist, this ordinance shall be in full force and effect on and after its passage and approval. (Section 12 is a real kicker. Typically, an “emergency ordinance” can be passed without formal reading or publication prior to passage and by a simple call for the yeas and nays, recorded in the minutes of the meeting. It is effective immediately upon passage and approval by the county judge. In other words, the ordinance can be on the books before there is any opportunity for questions, objections, or negotiation. The language in the ordinance is carefully crafted for rapid and low visibility action before opposition to it can be organized.) Section 13. {Severability clause.} Section 14. {Repealer clause.} Section 15. {Effective date.} Approved by the ALEC Board of Directors January 9, 2015. https://www.alec.org/model-policy/local-right-work-ordinance/ For activists who want to protest the 3rd ACCE Annual Meeting in Indianapolis, the dates are July 27 – July 29. In the past some major speakers have been Governor Scott Walker, Dr. Ben Carson, and U.S. Senator Ted Cruz. See also http://www.prwatch.org/news/2015/02/12738/acce-city-subsidize-alec-style-corporate-lobbying

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