The dust has cleared, so it’s time to analyze Janus based on reality rather than rhetoric

By Steven Greenhut
July 17, 2018

Sacramento

The dust still is clearing from the U.S. Supreme Court’s Janus decision, which declared that government employees are no longer required to pay union dues even for collective-bargaining purposes. Virtually everyone – from conservative reformers to union activists – agrees that the decision was momentous. But recent predictions about its real-world import vary widely, with union supporters wavering between apocalyptic pronouncements and assurances that it not that big of a deal, after all. As usual, the reality will fall somewhere between the extremes.

One of the more overheated retorts came from Erwin Chemerinsky, dean of the UC Berkeley School of Law. In the Sacramento Bee, Chemerinksy argued that the court “increased the vulnerability of government employees, many of whom will see a decrease in wages and working conditions as a result of this decision in the years ahead.” He called the decision “pure judicial activism” that “struck a blow against unions, a traditional key supporter of Democratic politicians.” Unions will lose revenue and membership and won’t be as able to “protect workers,” he added.

Chemerinksy is a constitutional expert, which is what makes his argumentation so hard to stomach. Judicial activism refers to judges who legislate from the bench – unearthing penumbras and judging based on preferred outcomes rather than on the clear words of the law. He claims the decision was “activism” because, among other things, it overturned precedent and overrules “the choices of the elected branches of government.” But mainly he seems concerned about the decision’s effect on unions and the Democratic Party. In this case, Chemerinsky is the one playing the role of an activist.

Since 1977, the high court’s Abood decision was the final word on dues collections from government unions. That court found that it is an impermissible form of compelled speech to force employees to pay for the direct political activities of unions, but that it’s okay for them to be forced to fund activities related to contract negotiations. The Janus plaintiffs argued – correctly, according to the court – that every type of forced dues payment is compelled speech. After all, a union’s collective-bargaining activities always are a type of political action, given that higher salaries, or greater employee protections from firing, involve public dollars and public policy.

“Compelling individuals to mouth support for views they find objectionable violates that cardinal constitutional command, and in most contexts, any such effort would be universally condemned,” according to Justice Samuel Alito, writing for the majority. “Suppose, for example, that the State of Illinois required all residents to sign a document expressing support for a particular set of positions on controversial public issues – say, the platform of one of the major political parties. No one, we trust, would seriously argue that the First Amendment permits this.” Agree or not, but that’s not judicial activism, but its polar opposite. Alito is examining current law against the nation’s pre-eminent governing document.

On the practical front, is Chemerinsky correct? Will the Janus ruling undermine the ability of public-sector unions to “protect” their members? That seems doubtful. If large numbers of public employees choose not to be members of a union, it’s hard to argue that they no longer want to be protected. Union members presumably are in the best position to know whether paying dues protects their interests, or harms their long-term interests as workers, taxpayers and citizens. And I would argue that most of our state’s biggest problems – from poor performing public schools to growing pension debt to the inability of the state to build sufficient infrastructure – are the result of public employees having far too many protections and far too much power.

The statement from John Vigna, a spokesman for the California Democratic Party, encapsulated the yin-and-yang nature of the post-Janus statements from the Left: “I think the Supreme Court is really playing with fire here, in the sense that they’re putting labor rights under attack in a way that hasn’t been done in almost a century now. One of the things that has been historically true of the labor movement is that they tend to be at their best when their backs are against the wall.”

In that same article, the spokesperson for the California Federation of Teachers noted, “We just need to continue hustling. It’s the right thing to do, whether we won or lost the Janus decision. We’re going to continue to engage the members, organize and fight for our profession and schools.” Translation: The decision is bad for public-sector unions, but they will regroup and flourish.

The state’s public-sector unions have long taken a two-pronged approach as they prepared for the decision following the appointment of Justice Neil Gorsuch to replace Antonin Scalia. Prior to Gorsuch’s appointment, the similar Friedrichs case was expected to yield the same result, but ended up deadlocked (4-4) following the 2016 death of Justice Antonin Scalia. Public-sector unions indeed have been preparing for this day and were not surprised by the verdict.

The first prong involves doing a better job organizing and wooing members. It’s an approach that even the harshest critics of public-sector unions should applaud. As I wrote for the California Policy Center in 2014, the California Teachers Association published a presentation, “Not if, but when: Living in a world without Fair Share.” (“Fair share” is what the unions call mandatory agency fee payments.) In the booklet, the CTA outlined a laudable and positive strategy. For instance, the union would “build (an) organizing culture that (has) locals and staff doing more face-to-face engagement with members” and organize “to effectively engage members and build local capacity.”

The second prong is more nefarious. The unions have used their muscle in the state Capitol (and other state capitols) to gain special organizing privileges in the event that Janus was ruled as expected. Here, the California Policy Center’s Ed Ring details the many laws and bills that would hobble public employees trying to end their forced payments to unions. Furthermore, unions have been sending their members contracts with so-called “trap language” that locked them into union membership for a year despite whatever the justices ruled.

For their part, conservatives are nearly unanimous in their support for the decision, but some focus on the decision’s meaning for the First Amendment rights of workers to make their own choices, while others are focused more on how the decision will defund the public-sector unions that are the root cause of so many political ills.

The reality is simple, but more nuanced than anyone likes to admit: Janus was a great victory for those who believe in free speech, regardless of efforts by Chemerinksy and others to portray it in political terms. But the unions will ramp up their organizing efforts and use their state power to prod government employees to pay dues. It is no panacea, however. Their influence – especially in California and the other blue states most affected by the decision – is not going away anytime soon. But at least individual public employees now get a say in how the battle plays out.

Steven Greenhut is a contributing editor for the California Policy Center. He is Western region director for the R Street Institute. Write to him at sgreenhut@rstreet.org.

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