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Commentary: What Gorsuch could mean to big labor

Last March – a little over a month after the death of Justice Antonin Scalia – the Supreme Court gave public-sector labor unions a big break.

The case before them was a lawsuit initiated by Rebecca Friedrichs, a third-grade teacher, who said she was forced to pay $650 a year in dues to the California Teachers Association, one of the state’s most powerful unions. She didn’t want to pay those dues, as they would be “used to promote the union’s political agenda.”

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With Scalia gone, the court deadlocked on the case, meaning Friedrichs would have to keep paying her dues. That’s because California is one of 22 states, plus the District of Columbia, that force public employees who don’t want to join to still pay “agency fees” to the union. Had Scalia not died and the Court ruled in favor of Friedrichs, those laws would have been shot down, likely resulting in millions disappearing from union coffers almost overnight.

The court’s 4-to-4 decision, however, meant the door remained open to future challenges to the “agency fees” rule. More are coming, and if Neil Gorsuch is confirmed, it means the Court’s new conservative majority will have another shot at leveling a major blow to public-sector unions and their political clout.

The Democratic party’s infrastructure has relied heavily on public union support for decades. Some of these unions, like the California Teachers Association have spent heavily on ballot initiatives, lobbying, and electioneering -- from 2000-2009, the California Teachers Association spent $211 million on political activity. And while the unions can’t technically compel workers to pay directly for political activity, it’s not difficult to see that it’s the membership dues that are funding union politicking.

Conservatives have long seen public-sector unions as a major problem. In part that’s because they’ve been quite effective in securing protections and benefits for their members. Compare that success to the fortunes of their private-sector brethren, who have seen their unions shrink and become diminished politically.

Some public-sector union activity has no doubt been pernicious; the California Correctional Peace Officers Association spent the 1980s and 1990s lobbying not only for more prisons with more guards, but for tougher laws against non-violent offenses in order to keep the new prisons filled. They have also pushed for pension deals that have the potential to devour some states’ public budgets in the near future, and all but guarantee lifetime employment to workers regardless of their competency.

Public-sector unions are therefore a pretty convenient enemy for conservatives to have, even as labor unions themselves remain rather popular with the public. Chris Christie and Scott Walker both launched their national careers by going to war with the public-sector unions in their states, and Walker’s GOP allies point to the governor’s successes in reigning in their influence to Donald Trump’s surprise Wisconsin victory last November.

At the national level, the war between conservative groups and public-sector unions have been increasingly fought in the courts. Conservatives call it “litigation-as-reform,” and it’s how Friedrichs was able to secure top-notch legal counsel in her fight against agency fees. With the help of these groups, other cases similar to Friedrichs are currently brewing, and could soon find their way to the Supreme Court.

Should Gorsuch rule with his fellow conservatives in such a case and strike down agency fees nationwide, the political ramifications would likely be enormous.

When Michigan instituted similar reforms in 2012, for example, union membership dropped seven percent, according to the Economic Policy Institute, and many workers stopped paying their dues. Unions thus took a major blow to their budgets, and while it would be very difficult to prove that that allowed Trump to win the state, it almost certainly helped.

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Union political spending skews overwhelmingly Democratic, and in the case of public sector unions the money often goes to issues that may not be partisan on the surface but are in the abstract. Unions representing government workers almost automatically favor more government spending and the resulting higher taxes and fees, which are generally not conducive to productivity and growth. 

These are good reasons for Republicans to oppose public sector unions at every turn. But proponents of agency fees argue that there’s more at stake to them than just political contributions.

We’re not so far away from an era of near-constant strikes by public workers. New York state in the 1970s, for instance, was averaging 20 teachers strikes a year. The Supreme Court decision allowing unions to collect agency fees came in 1977, and afterwards such strikes became far less common.

The thinking is that if unions can’t force their members to pay their dues, they have to prove their worth by becoming more intransigent in negotiations. Forcing workers to follow the union line, somewhat counterintuitively, makes them more moderate.

Conservatives tend to laugh off this argument, but there might be something to it. Regardless, assuming Gorsuch gets confirmed, there’s a very good chance public-sector unions will soon be hit with a massive blow, and we’ll all be witnesses to the results. 

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