Executive Order Challenges ‘Unconstitutional’ Forced Union Fees
(Click here to download the March 2015 National Right To Work Newsletter)
Last summer, thanks to the persistence and clear thinking of National Right to Work Legal Defense Foundation attorneys and eight Illinois home care providers whom they represented free of charge, the U.S. Supreme Court seriously undermined a precedent that had bolstered monopolistic unionism for 37 years.
In 1977’s Abood v. Detroit Board of Education, Justice Potter Stewart, joined by five of his colleagues, had invoked a strained and constricted reading of the First Amendment in order to uphold the imposition on union nonmembers of compulsory financial support for government unions’ bargaining activities.
But in June 2014, Justice Sam Alito’s 5-4 majority opinion in Harris v. Quinn marked a clear break from the pro-forced unionism-in-government stance the High Court had taken in Abood.
At a minimum, Mr. Alito’s opinion made it plain that putative “labor peace” is not an all-purpose excuse for sanctioning the extraction of forced dues and fees from Americans for government union-boss representation they don’t want, and never asked for.
Current Supreme Court Majority Doubts That Forced Dues Are Constitutional
Mark Mix, president of the National Right to Work Committee as well as the Foundation (the Committee’s sister organization), explained the significance of the Harris decision:
“Justices Alito, Kennedy, Roberts, Scalia and Thomas agreed that the state of Illinois was not the home care providers’ common-law employer or their sole employer and so concluded that the Abood excuse for compelling employee financial support for unions did not apply to them.
“Since the plaintiffs were not employed in any government workplace, their exercise of their right not to bankroll an unwanted union could not even theoretically pose a threat to ‘labor peace’ in the workplace, as the Abood opinion had envisioned.
“Because it was found not to be an applicable precedent, Abood was neither upheld nor overturned.
“However, even as it left Abood standing, the Harris opinion concurred with the plaintiff’s counsel of record, William Messenger, and other Right to Work attorneys that there are profound flaws in this precedent’s reasoning.
“For example, Justice Stewart’s opinion supposed it would be relatively easy to distinguish government union bosses’ political activities, which nonmembers could not be constitutionally forced to bankroll, from their bargaining activities, for which forced nonmember fees could be exacted.
“But unlike in the private sector, Mr. Alito noted, where bargaining is directed at the employer and political advocacy is directed at the government, ‘in the public sector, both collective-bargaining and political advocacy and lobbying are directed at the government.’
“The Harris majority concluded that Abood is a ‘questionable’ precedent. Of course, that means that the constitutionality of public-sector forced union dues is also ‘questionable.’”
Last summer, this Newsletter reported that the Harris decision had “cast into grave doubt whether state laws and other policies authorizing the forced extraction of union dues from public servants are permissible under the First Amendment.”
Bruce Rauner Wields His Executive Power to Protect State Employees
However, the August 2014 cover story added, “at least for the near future, the task of actually eliminating these constitutionally dubious statutes and policies has been left to state legislative and executive officials.”
One state elected official who has made it clear to his constituents and concerned citizens across the country that he understands it is his responsibility to defend the Constitution is Illinois GOP Gov. Bruce Rauner, a former businessman who took office just a couple of months ago.
As the chief executive of a state in which Big Labor has a lock grip on both chambers of the Legislature, Mr. Rauner is very unlikely in the foreseeable future to get a chance to sign any statute revoking government union bosses’ forced-dues privileges.
That is not to say his hands are tied.
On February 9, in one of his first major actions as governor, Mr. Rauner exercised his executive power to stop state government union kingpins from raking in forced “agency” fees from thousands of civil servants who have chosen not to join the union that wields monopoly-bargaining power in their workplace.
The governor simultaneously announced that his administration would file a federal lawsuit asking for a determination as to whether public-sector forced union dues and fees are, as he believes, “unconstitutional.”
Until this case is resolved, the executive order provides that forced fees will continue to be deducted from the paychecks of state government employees, but the confiscated money will be put into an escrow account, rather than funneled into union coffers.
If and when the federal judiciary follows the logic of the Harris opinion and finds that government-sector forced union fees violate the First Amendment, the escrow money will be returned to the compulsory fee-payers.
‘That Is a Clear Violation Of [Public Servants’] First Amendment Rights’
Mr. Rauner forthrightly justified his bold action in a press release:
Employees who are “forced to pay unfair share dues” are “being forced to fund political activity with which they disagree. This is a clear violation of First Amendment rights — and something that, as governor, I am duty-bound to correct.
“ . . . Forced union dues are a critical cog in the corrupt bargain that is crushing taxpayers. Government union bargaining and government union political activity are inexorably linked.”
Almost immediately after Mr. Rauner announced that the state of Illinois would cease turning over forced employee fees to Big Labor until their constitutionality was resolved, government union bosses began venting their rage.
Roberta Lynch, director of Springfield-based Local 31 of the American Federation of State, County and Municipal Employees, decried the executive order as a “scheme” and as an “abuse of power.”
Catherine Boardman, president of Gary, Ind.-based Local 73 of the Service Employees International Union, accused the governor of trying to “ruin the lives of working families in Illinois.”
Meanwhile, the Prairie State’s GOP establishment politicians were remarkably reluctant to defend their fellow Republican’s effort to defend civil servants’ constitutional rights to the best of his ability.
In fact, a few days after the executive order was issued, state Comptroller Leslie Munger, an unsuccessful 2014 GOP state House candidate whom Mr. Rauner himself had appointed after the elected comptroller died before taking office, announced she would not enforce it.
Ms. Munger claimed she had no choice but to defer to union-label state Attorney General Lisa Madigan’s (D) ill-supported opinion that, despite the clearly expressed doubts of the Supreme Court in Harris, public-sector forced union fees are constitutional.
‘I Will Support the Constitution of the United States’
Mark Mix commended Mr. Rauner for his executive order, and for going to federal court in an effort to ensure that, despite the opposition of his own appointed comptroller, deductions of forced agency fees from state employees cease and the confiscated money is ultimately returned to the employees.
“In Illinois,” Mr. Mix noted, “the governor, legislators, and other public officials solemnly swear or affirm as they are installed: ‘I will support the Constitution of the United States . . . .’
“Our Founding Fathers never envisioned that the judiciary alone would be able to ward off threats to Americans’ constitutional liberties. It’s long past time for elected officials to confront the danger to the First Amendment posed by forced unionism.”
Mr. Mix vowed that Committee strategists as well as Foundation attorneys would do everything possible to help Mr. Rauner accomplish his stated objective of ending compulsory unionism in public employment.