High Court Produces a Politics of, By and For
by John Nichols on June 21, 2012 - 3:36 PM ET
The most politically partisan-- and politically
activist-- Supreme Court in modern American history has
already assumed that, when it comes to electioneering,
corporations have pretty much the same rights as human
beings. Indeed, the High Court's Citizens United ruling
has given corporations unprecedented flexibility to act
on their own behalf to influence election campaigns and
Yet, the same Court has now said that groups of actual
human beings-- trade unions that have organized public
sector workers-- must sacrifice their flexibility in
order to meet standards never before demanded of labor
Do we detect a pattern here?
That pattern was on stark display in Thursday's Supreme
Court decision to require that public employee unions
get specific permission from employees in workplaces
they represent for special assessments that are used to
advance political agendas. This high court swipe at the
ability of working people to make their voices heard in
the political life of communities, states and the
nation wont get the attention that will be accorded
the Supreme Courts equally politicized ruling on the
Affordable Care Act.
But there's a good argument to be made that, by further
skewing the Democratic process that was so badly warped
by the 2010 Citizens United ruling, the court has done
even greater damage to the long-term prospects for
renewing the republic.
The damage is contained in a structural shift that will
make unions-- and potentially other membership-based
organizations-- less flexible and functional in the
political fights of the future.
Traditionally, unions in the public sector have
maintained opt-out systems, which allow any worker in
an organized shop to indicate that they do not want to
support union political action. Those dissenting
workers are allowed to avoid contributing to
campaigning, even when it is on behalf of their
Now, because of the Court's ruling, public-sector
unions are required to develop new and more burdensome
systems in which represented employees must opt-in
before they can support political initiatives by
The Court-ordered shift creates an incredible
bureaucratic nightmare for organizations that represent
hundreds of thousands of workers. (And it was entirely
unnecessary, as key unions have indicated that they
would be willing not just to maintain their opt-out
clauses but to refund special assessment money to any
member or represented nonmember who might object to a
To get a sense of how onerous the Court's move could
turn out to be—especially at this late stage in an
election cycle—just imagine if the Court had on
Thursday ordered corporations, corporate groupings and
corporate political action committees to get pre-
approval from all shareholders before spending money on
political or lobbying initiatives.
Of course, that is unimaginable.
But that is the barrier to public-sector union activism
erected on Thursday by the Court majority (in a
decision written by Justice Samuel Alito and agreed to
by Chief Justice John Roberts Jr. and Justices Antonin
Scalia, Anthony Kennedy and Clarence Thomas).
The clearest objections to the ruling came from
Justices Stephen Breyer and Elena Kagan, who objected
to the requirement that unions get advance approval
from workers to opt-in for political activity.
Breyer, in his dissent, fretted (appropriately) that
Alito's sweeping yet at times vaguely worded opinion
could be read as a requirement that public-sector
unions seek affirmative approval from all members
before they can respond to an immediate political test.
"The debate about public unions' collective bargaining
rights is currently intense," wrote Breyer in his
dissent. "The question of how a nonmember indicates a
desire not to pay constitutes an important part of this
debate... There is no good reason for this court
suddenly to enter the debate, much less now to decide
that the Constitution resolves it."
Breyer's right. And there will be much wrangling over
But no one should miss the intent of the Court
majority, which was to tip the balance a little more
toward corporate power, and toward the candidates and
parties that benefit most from campaign-finance rules
that are designed to allow corporations and CEOs to
speak most loudly.
To be sure, corporations are not universally Republican
in their political engagements. But they do play
politics with an eye toward advancing their own
interests, and their own bottom lines, rather than
extending or improving the public sphere. Increasingly,
this has inclined them toward conservative Republicans
and, in some cases, conservative (or corporatist)
Unions, particularly public-sector unions, are not
universally Democratic in their political engagements.
But they do play politics with an eye toward assuring
that public institutions are strong and functional-- and
this usually inclines them toward more progressive
Strengthening the hand of unions maintains the commons.
And it maintains democratic control over decisions made
in our name as citizens.
Strengthening the hand of corporations fences in the
commons—and ultimately increases the prospect that they
will be sold off to the highest bidder.
This Court's majority is, by every measure, on the side
of the highest bidder.
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