‘In Practice, You Can’t Enforce the First Amendment Half-Way’
Four decades ago, when it first considered a National Right to Work Legal Defense Foundation-backed challenge to the constitutionality of government-sector forced unionism, the U.S. Supreme Court tried to “split the baby” with regard to civil servants’ First Amendment rights.
Writing for the court in Abood v. Detroit Board of Education (1977), Justice Potter Stewart declared that forcing public employees to bankroll, as a condition of employment, union advocacy on workplace matters with which they disagree is constitutional.
But forcing such workers to bankroll union political advocacy regarding non-workplace matters isn’t constitutional, added the justice.
The faux distinction the Abood court attempted to draw between constitutionally protected and unprotected speech was and remains illogical.
And four decades of experience demonstrate it is also unenforceable.
Big Labor Political/Lobbying Expenditures Top $1.7 Billion Per Federal Campaign Cycle
Drawing on a variety of published sources, the National Institute for Labor Relations Research has estimated that Big Labor spent more than $1.7 billion on politics and lobbying in 2015 and 2016.
The Institute’s analysis relies almost entirely on reporting forms filed by union officials themselves with federal and state government agencies.
The LM-2 forms that private-sector and some government-sector unions with annual revenues exceeding $250,000 are required to file with the U.S. Labor Department, along with other publicly available resources, show that union officials control by far the most massive political machine in America.
Current labor laws, as interpreted by federal courts, authorize the firing of private and public employees for refusal to pay for unwanted monopoly bargaining, unless the employees are protected by a Right to Work statute or state constitutional amendment.
But according to Abood and other precedents that National Right to Work Legal Defense Foundation
Attorneys helped establish, the U.S. Constitution prohibits terminating employees for refusal to pay for Big Labor’s non-bargaining activities — regardless of where the employees live.
And since a 2003 LM-2 revision survived a union-boss court challenge and took effect more than a decade ago, many union officials have been required to report each year how much they spend on two major non-bargaining activities — electioneering and lobbying.
‘A Shadow Army Much Larger’ Than Barack Obama’s 2012 ‘Re-Election Staff’
The Institute review of all LM-2 forms filed for 2015 and 2016 shows that unions filing such forms spent a total of nearly $1.3 billion on “political activities and lobbying” over those two years alone.And there is plenty of Big Labor political spending LM-2’s don’t cover.
Government unions that have no private-sector members, including many affiliates of the National Education Association teacher union and other deeply political state and local unions, don’t have to file LM-2’s.
The Institute analysis added up political spending by such government unions appearing in state campaign finance reports and came up with 2015-16 expenditures totaling roughly $228 million. Union PAC and “527 group” expenditures not reported elsewhere added another $193 million to the 2015-2016 war chest.
Union bosses wield treasury funds consisting primarily of forced dues and fees to “mount intense campaigns — with workplace fliers, phone calls and door-knocking — to get their members to vote for the [organized] labor-backed candidate,” as veteran labor reporter Steven Greenhouse wrote in 2016.
And, as a July 2012 front-page Wall Street Journal story documented, the scale of Big Labor bosses’ compulsory dues-fueled electioneering campaigns is breathtaking:
“[T]he hours spent by union employees working on political matters were equivalent in 2010 to a shadow army much larger than President Barack Obama’s  re-election staff.”
Union Bosses Sidestep Theoretical Ban on Forced-Fee Electioneering
In theory, thanks to Foundation-won precedents such as Abood, neither government nor private-sector union bosses are supposed to bankroll their electioneering machine with money forcibly extracted from union nonmembers who have explicitly objected to paying for Big Labor political activism.
In practice however, union officials in non-Right to Work states have for decades routinely gotten away with using objecting nonmembers’ forced fees to subsidize union political and ideological advocacy that has no substantive connection to workers’ terms and conditions of employment.
And at the end of last year, the Washington, D.C.-based Competitive Enterprise Institute (CEI) filed a brief with the Supreme Court that documents in unprecedented detail Big Labor’s “use of [forced] agency fees to fund overtly political and ideological activities . . . .”
Assumption That ‘Economic And Political Concerns Are Separable’ Is ‘Rather Naïve’
The CEI submitted this brief in support of a pending Foundation Supreme Court case, Janus v. AFSCME, Council 31, that challenges the constitutionality of all forced union dues and fees as a condition of public employment, regardless of how union bosses spend the loot. (To find out more about Janus, see page one of this Newsletter.)
As the CEI and its attorneys persuasively argue, the facts regarding Organized Labor advocacy have vindicated Justice Felix Frankfurter’s 1961 observation, in his dissenting opinion in Machinists v. Street, that the judicial assumption that “economic and political concerns are separable” is “rather naïve.”
Among the remarkable examples of forced fee-funded union politicking cited by the CEI brief are the proceedings of the American Federation of State, County and Municipal Employees 42nd International Convention, which took place in July 2016.
Forced Fee-Funded Union Convention Mobilized Support For Hillary Clinton Campaign
As an Illinois civil servant, Mark Janus, the plaintiff in the Janus case, is forced to pay fees to the AFSCME union and its Chicago-based Council 31 subsidiary, or be fired.
And union operatives specifically informed him that, as a nonmember, he would be forced to pay for the 2016 AFSCME convention.
One core purpose of this event was to mobilize support for Hillary Clinton’s presidential candidacy and opposition to the candidacy of Donald Trump.
In fact, the convention’s “general session featured a lengthy ‘AFSCME FOR HILLARY’ program, culminating with a speech by the candidate herself.”
And union President Lee Saunders told the crowd that the union rank-and-file would “stand with her in every corner of the nation” and “were proud to stand with her today.”
Besides Electioneering, Forced Fees Pay For Controversial Union Advocacy
Mr. Saunders and other AFSCME bosses spend nonmembers’ forced fees not just on electioneering in presidential, U.S. Senate, gubernatorial and other political campaigns, but also directly to advance their preferred positions on controversial issues like gun control, marijuana legalization, and immigration.
And, as the CEI brief pointed out, “AFSCME is not alone among public-sector unions in using non-members’ [forced] agency fees to fund political and ideological advocacy.”
The brief went on to cite multiple examples of political/ideological forced-fee expenditures by top bosses of the National Education Association and American Federation of Teachers teacher unions and the Service Employees International Union.
National Right to Work Committee President Mark Mix commented: “As the Supreme Court acknowledged six years ago, when Big Labor negotiates with the government, it takes ‘many positions’ that ‘have powerful political and civic consequences.’
“In practice, you can’t enforce the First Amendment half-way. The only way to stop government union bosses from systematically trampling civil servants’ free speech rights is to prohibit all forced union dues and fees in public employment.”