Material of Interest to People on the Left 



 Shaun Richman 
 February 8, 2018
Working In These Times

	* [https://portside.org/node/16518/printable/print]

 _ If the Court embraces the weaponization of free speech as a cudgel
to beat up on unions, the possibility of other, unintended
consequences is beginning to excite some union advocates and stir fear
among conservative constitutional scholars. _ 

 Justin Sullivan/Getty Images, Protesters stand outside the Wisconsin
State Capitol on March 9, 2011 in response to the passage of Governor
Scott Walker's Act 10 bill curbing collective bargaining rights. An
anti-union decision in the upcoming Janus v. ASFCME case could
ironically expo 


_Janus v. AFSCME_, which begins oral arguments on February 26, is the
culmination of a years-long right-wing plot to financially devastate
public-sector unions. And a Supreme Court ruling against AFSCME would
indeed have that effect, by banning public-sector unions from
collecting mandatory fees from the workers they are compelled to
represent. But if the Court embraces the weaponization of free speech
as a cudgel to beat up on unions, the possibility of other, unintended
consequences is beginning to excite some union advocates and stir fear
among conservative constitutional scholars.

The ruling could both wildly increase workers’ bargaining power and
clog the lower courts with First Amendment challenges to routine uses
of taxpayer money. At a minimum, it has the potential to turn every
public sector workplace dispute into a constitutional
controversy—and one Midwest local is already laying plans to
maximize the chaos this could cause.


From the earliest court decision dealing with workers’ protest
activity—the 1806 Cordwainers Trial in Philadelphia–courts have
strenuously avoided applying the First Amendment
to unions. Instead, conservative courts treated unions as criminal
conspiracies that interfered with employers’ property and contract

I have been arguing
that unions and their allies should be challenging the most unequal
aspects of labor law as violations of our constitutional rights.
Currently, employers in the private sector have a legal right to force
employees to attend mandatory anti-union presentations
on penalty of firing. Workers can also be fired for making
“disloyal” statements
even in the course of otherwise protected concerted activity.
Meanwhile, the government has restricted the scope of issues
that unions can legally compel employers to bargain over.  

All of these practices are vulnerable to First Amendment challenges as
government restrictions of workers’ speech. They become more
vulnerable if the Supreme Court rules in _Janus_ that every
interaction that a union has with a governmental subdivision is
inherently political.

Even more vulnerable are anti-union laws in the public sector. Take
Scott Walker’s Act 10, which forbids unions from making bargaining
proposals over anything other than wages that don’t exceed the cost
of living. Or the New Jersey case law that forbids teachers unions
from even proposing restrictions on class size. How are those not
explicit restrictions on workers’ speech?

The most common objection to this kind of thinking on the Left is that
a judiciary that could buy such a craven argument as _Janus_ will
refuse to take the precedent to its logical conclusion and shamelessly
waving away workers’ free speech rights. That may be true, but there
is a decent chance that the next couple of federal elections could
bring a “blue wave” that will alter the ideological make-up of the
courts for decades.  _Janus_ could hand new liberal majorities a
roadmap for restoring a legal balance of power between corporations
and workers. It’s enough of a possibility that conservative legal
scholars have begun paying attention to the case, and they see the
potential peril for their cause.


Amicus briefs
in the _Janus_ case have been rolling in since the summer. These
briefs are filed by scholars and organizations who are not parties in
the case, but who nevertheless have strong opinions about its outcome.
They may (or most likely may not) be read by the justices, but they
could influence questions and oral arguments at the hearing.

Most of the amici have been from the usual suspects. Right-wing think
tanks are spouting the same tired clichés and intellectually bankrupt
arguments. Union advocates question the standing of the plaintiff to
even mount a First Amendment claim, argue in favor of respecting
long-settled precedent, or—in a new argument—suggest treating
agency fees as a kind of tax .

But two briefs stand out, both for what they say and for who is saying

One brief, filed by influential right-wing libertarian ideologues
Eugene Volokh of UCLA and William Baude of the University of Chicago
actually argues for strengthening the 40-year-old precedent that
_Janus_ aims to overturn. The 1978 _Abood_ decision was wrong, they
argue, to moot the question of whether workers compelled to pay their
fair share for union representation might have a legitimate First
Amendment objection to how a union might spend any portion of their
fees. That opened the door, Baude and Volokh say, to taxpayers making
line-by-line objections to how the government spends its money.
“Just as non-union members may find many reasons to disagree with a
public union’s speech, there are countless grounds to object to
other speech supported by government funds,” they write.

Pointing to government propaganda urging military enlistment and
purchase of war bonds, the scholars note that there has never been an
option for taxpayers to opt out of funding such practices with which
they may disagree, nor even any kind of “equal time” right of
rebuttal. A ruling for the plaintiff in _Janus_ could tug at the loose
threads of the very notion of a common interest in government.

Another amicus, filed by law professors Charles Fried of Harvard and
Robert C. Post of Yale
warns of undermining the precedent set in the 2006 _Garcetti _v.
_Ceballos._ That decision gave public sector employers “the broad
discretion they need to manage their workplaces” by permitting them
to compel employees to comply with directives they find politically
objectionable. Ruling in favor of _Janus_, they warn, “would
therefore threaten to transform every workplace dispute into
a constitutional controversy.”

Fried [http://hls.harvard.edu/faculty/directory/10288/Fried] served as
Solicitor General under Ronald Reagan, so his brief likely carries
more water with the conservative justices than pro-union arguments for
status quo. Furthermore, swing Justice Anthony Kennedy wrote the
majority decision in _Garcetti_, so he would presumably take interest
in how the _Janus_ case could blow his work up. 


One local union in the Midwest is champing at the bit to turn every
disagreement they have with the bosses into a constitutional
controversy. A January blog post by the Countryside, Ill.-based
Operating Engineers Local 150 [http://www.local150.org], titled,
“Union Busters Set Themselves Up for _Janus_ Backfire
was widely circulated in #1u
[https://twitter.com/search?q=%231u&src=typd] social media circles. In
it, the union eyes overturning the laws that have made public-sector
bargaining illegal in many jurisdictions. It also suggests that
workers should be able to opt out of paying for their pension funds’
lobbying expenses and taxpayers opt out of funding municipal lobbyists
(the American Legislative Exchange Council (ALEC)
[https://www.alecexposed.org/wiki/ALEC_Exposed], for example,
receives indirect support from many taxpayer-funded organizations.)

While the gauntlet thrown down by Local 150 was certainly exciting for
the few minutes it took to read their fantastical plan to make utter
chaos out of a post-_Janus_ world, many readers were left wondering,
_Are these guys for real?_

“We’re going to immediately respond by filing suits to say these
laws are unconstitutional,” confirms Local 150 president Jim
Sweeney. “Maybe we get screwed again, but we’re going to put
corporate powers in a position where they’re forced to explain why
workers should only have free speech when it serves them.” So, file
that answer under: _Hell to the yes_.

Local 150 has a track record of pushing the envelope on legal
arguments in defense of unions. They’re the union that filed
_Sweeney vs. Pence_, a federal court challenge to Indiana’s
“right-to-work” law. Although ultimately unsuccessful, it resulted
in a strong dissenting opinion from Chief Judge Diane Wood that
forcing unions to spend resources on non-members without compensation
is an unconstitutional “taking” under the Fifth Amendment. That
has become the legal argument that could overturn “right-to-work”
laws around the country
with several cases wending their way through federal circuits at this
very moment.

The union has already sent a formal demand letter, chock full of legal
citations, to the Illinois Municipal Retirement Fund. In it, they
complain that their members’ mandatory 4.5 percent retirement
contributions are going towards Bank of America lobbying and demand to
opt out.  

More letters are on the way. Local leaders are hoping to trigger a few
rounds of panicked, “WTF?” phone calls to Illinois Gov. Bruce
Rauner and other _Janus_ cheerleaders.

If enough unions follow Local 150’s lead and make enough hay out of
Janus—or even pose a credible threat to do so—don’t be surprised
if more conservative jurists rethink their strategy.

Shaun Richman is a former organizing director for the American
Federation of Teachers. His Twitter handle is @Ess_Dog.

	* [https://portside.org/node/16518/printable/print]







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