Unions should be afraid after yesterday’s Supreme Court ruling

No one should be surprised that yesterday’s U.S. Supreme Court decision in Harris v. Quinn didn’t immediately end the ability of public-sector unions to collect dues from civil servants who are not union members. But that doesn’t mean it won’t happen.

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Ending automatic dues collection would have meant immediately striking down Abood v. Detroit Board of Education, the 37-year-old high court ruling that gave public sector unions that privilege.

Judges are conservative and hesitant by temperament, especially since they are mindful of preserving their own legal legacies. Even if Justice Samuel Alito and his four other colleagues in the majority on Harris wanted to immediately strike down Abood, they would never do so.

Harris would have been a particularly difficult case for justices to use to strike down Abood, and ultimately end forced dues collections by public-sector unions. Alito noted in the decision that Abood didn’t even apply to Harris.

The prior case didn’t apply because the Illinois home caregivers who were being forced to pay agency fees to the Service Employees International Union were not considered full-time government employees under state law. They didn’t receive the same benefits as full-timers and couldn’t expect SEIU to represent them in the same way it does full time employees.

Since Abood did not apply, it was easy for the high court to rule that Pam Harris and 20,000 other home healthcare workers didn’t have to pay dues to SEIU – and that states could not force similar part-timers to pay into the coffers of other public-sector unions.

For SEIU, the Harris ruling is a clear hit to its membership ranks and balance sheet. The union’s Healthcare Illinois unit could lose up to one-fifth of its 91,000 members in four Midwestern states.

But for SEIU’s sister unions, including the American Federation of State County and Municipal Employees, the American Federation of Teachers, and the National Education Association, the ruling does little immediate damage. Other than being barred from getting politicians in other states to force part-time government employees to organize and pay into their coffers, it’s business as usual.

Yet public-sector unions have good reason to keep worrying. The Harris ruling will help government employees end the unions’ ability to forcibly collect dues regardless of whether the workers want to be members in the first place.

This ruling sowed seeds for future rulings. While Justice Alito determined that Abood didn’t apply to Harris, his ruling still took a hard look at the validity of the Supreme Court’s earlier ruling. From where Alito sits, the underlying analysis justifying the Abood ruling was “questionable” because it wrongly applied rulings from two previous cases, Machinists v. Street and Railway Employes v. Hanson, which only applied to private-sector unionizing.

In the private-sector, union activities are nonpolitical. Unions are merely negotiating contracts with private-sector firms and addressing workplace conditions that affect their rank-and-file. Private-sector workers who pay agency fees to unions are not being forced to subsidize political activities to which they object and, thus, their rights under the First Amendment aren’t being violated.

But as Alito points out in Harris, this isn’t true with public-sector unions. Because unions such as AFSCME and NEA are both bargaining agents with governments, advocate before them as lobbyists, and even finance political campaigns of the politicians with whom they negotiate, every activity in which they engage is political.

For government workers who choose not to be union members, the dues they are still forced to pay essentially subsidize political speech, violating their First Amendment rights. Even worse, Abood, places a “heavy burden” on government workers to prove that public-sector unions are spending their dollars improperly on lobbying and political campaigning.

This concern becomes especially clear once you analyze union balance sheets. Explicit political spending accounted for 38 percent of NEA’s $343 million in spending in 2012-2013.

This includes a $30,000 contribution to the Leadership Center for the Common Good Action Fund, a spin-off of the now-defunct progressive group ACORN, and $300,000 to Marylanders for Marriage Equality. These are organizations that have nothing to do with improving workplace conditions for classroom teachers.

Add in the $68 million NEA spent last year on so-called “representational activities” (which are usually political in nature) and altogether, three out of every five dollars non-members were forced to pay were geared toward political activities.

Some teachers are bound to object to this.

For government workers and right-to-work advocates, Alito’s statement in Harris essentially serves a road map for their efforts to stop public-sector unions from forcibly collecting dues. This is what public-sector unions fear the most.

Over the past three years, unions have already suffered losses in states such as Wisconsin and Tennessee, where governors such as Scott Walker and Bill Haslam have successfully abolished state laws requiring teachers and other public-sector workers who are not union members to pay into their coffers.

After Harris, it is only a matter of time before the Supreme Court stops unions from forcing government employees who aren’t their members to help them make it rain.

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