Today, the Supreme Court will hear arguments in a case that could do more to damage public employee unions than anything the Republican party has done in decades.
The case is Friedrichs vs. California Teachers Association, and the entire US labor movement has been eyeing its approach with dread for many months. The technical legal issue up for debate in the case is this: Should members of public employee unions be required to pay fees to cover the cost of collective bargaining on their behalf, even if they do not agree with what the union does politically? Or is this a violation of their First Amendment rights? The actual issue at hand in this case, though, is this: Can conservative opponents of organized labor use the courts to break public unions in a way that they have not been able to in the political arena?
If you are a government employee in a unionized workplace—a teacher, for example, belonging to a teachers union—you and all of your colleagues pay a set fee to the union, to cover the costs of the union’s work to negotiate a contract that you work under. This is simply the principle of everyone paying their fair share for work that benefits everyone. If you are a teacher and you happen to dislike teachers unions for some political reason, you are not required to be a member of the union; if you do not want to be a member of the union, you cannot be required to pay fees to cover strictly political activities that the union undertakes, like lobbying or political donations to favored candidates. But since the union negotiates the contract that covers everyone, you are still required to pay your fair share fee, called an “agency fee,” to cover bargaining costs.
The Friedrichs case aims to do away with the requirement that those who enjoy the benefits of public union contracts pay an agency fee to cover the cost of getting those contracts in the first place. Why? The legal argument in the case is that all union activity is inherently political, even contract negotiations, and therefore requiring non-members to pay fees to cover bargaining costs still amounts to compelling them to pay for political speech that they disagree with. Because public sector union bargaining involves government spending priorities and whatnot, the plaintiffs say, it is political, and the decision to support it with fees should be purely a choice, rather than a requirement—even if someone is reaping the benefits of the contract the union negotiated for them.
Unions point out the very obvious problem with this idea, which is that it allows “free riders” to get all the benefits of union membership without paying any of the costs. In this sense it would be akin to a local government telling its citizens they only have to pay local taxes to collect garbage and repair roads and clean the streets if they agree with the government politically. It would allow plenty of people to opt out of paying, but still enjoy all of the benefits that the taxes pay for. And if enough people chose to be free-riding leeches rather than voluntarily good taxpaying citizens, it would only be a matter of time before such a government weakened or collapsed.
And that is the point of this case. Friedrichs is the culmination of a decades-long right-wing effort to undermine public unions. Those who oppose public unions on ideological (or business) grounds know that opening the door for people to opt out of paying agency fees will inevitably weaken unions financially and politically. If the plaintiffs win—and the odds are fairly good that they will—people will be free to enjoy union contracts without paying the costs. The biggest damage from this case would not come from the small group of ideologues who hate their own unions; it would come from the much larger group of apathetic people who will take advantage of any opportunity to save a few bucks in the short term, even if that means undermining their union in the long term.
The labor movement is making much of the fact that this case has been artificially created and shepherded through the courts by The Center for Individual Rights, a conservative legal group funded by wealthy and powerful Republicans. This is true, and it is also beside the point. Yes, the Friedrichs case is a cutthroat political battle under the cover of a Supreme Court case. But that sort of thing is nothing new in American politics. The case should be defeated not because of its backers, but on its merits. It is quite simply not fair to allow free riders to take advantage of union contracts without paying for them. And to imagine that as a “free speech” issue stretches the idea of political speech past its breaking point. This is about money and power. Public unions have worked very hard for many decades to accumulate money and power on the side of workers. This would gut that effort. It would be the triumph of apathy over solidarity.
Some on the left have suggested that if the plaintiffs win this case, unions should proactively kick out anyone who refuses to pay agency fees, and lead their remaining workers out on strikes. Sounds good to me. But everyone on both sides should know that what we have now is far preferable to setting off a new era of workplace labor wars. If the plaintiffs do win this case, the way that public unions will stay strong is through the political consciousness of public union members. A lot of people worked hard to build these unions. Don’t let them be broken this easily.