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Collective Bargaining and Constitutional Avoidance

February 27, 2018

 

As I mentioned, with the apparent coming of an early spring to Brooklyn, my mind has turned to the relationship between labor, capital, and the government. In my thinking about the issue from an economic perspective, collective bargaining is an area on which I still need to sort through my thinking. But before getting back to the economics, I find myself distracted by the Supreme Court, as I frequently am.

 

On Monday, the justices heard arguments in Janus v. AFSCME, a major case that has the potential to upend labor law. The issue in the case is fairly simple, and one that the Court has heard before: an employee doesn't want to pay his union dues. In this case, the employee in question is a governmental employee, and his argument against paying said dues is that it amounts to coercive speech - the union is forcing him to contribute to an organization that promotes political positions with whioyeesch he disagrees. According to Janus, this violates his first amendment rights.

 

Now, I do understand that a person would feel frustrated if forced to pay union dues when they don't want to. However, without "closed shops" such as this, there would be a major problem with freeloaders. Many employees, all of whom benefit from the union's negotiation and many of whom agree with the union's political views would be incentivized to stop paying their dues; after all, how important is their $45 per month to the negotiations? Without being able to compel payment of dues, unions would be severely weakened or disappear completely. Perhaps you think this is a good thing; either way, at least admit that "right to work" laws (or analogous judicial rulings) will not have a neutral effect on the ability of employees to work together in negotiations, necessarily ceding power to employers.

 

The Supreme Court already addressed this issue with regards to public sector unions in the case Abood v. DBE, in 1977. In Abood, the Court said that public sector unions had to segregate their dues between political work and true collective bargaining; only the latter could be compelled. This framework has remained unchanged for 40 years, becoming the basis of many state and local laws, as well as myriad labor agreements.

 

In Janus, the plaintiff is asking the Court to overturn Abood, applying a more "modern framework." In their opinion, all activity of public sector unions is political; when they push for higher wages, it affects state budgets, a political issue. Therefore, the segregation created by Abood harms Janus's First Amendment rights.

 

There are a number of problems with respect to a potential overruling of Abood. First, the principle of stare decisis says that courts are supposed to overturn precedents only when really necessary. This makes sense; people rely on the law to make decisions and making changes willy-nilly will make it impossible for well-intentioned actors to know what to do. Previous cases that have been overruled have tended to rely on new facts. Most famously the terrible conditions in the segregated South caused Plessy v. Ferguson to be expliticly overruled in Brown v. Board of Education. So far as I can tell, the plaintiffs in Janus are not claiming a change in the nature or understanding of public-sector collective bargaining. When cases are overturned, the logic tends to look at the dissents in the original case; were the views of dissenting justices proven correct in hindsight? Abood was a unanimous decision, justices of all viewpoints agreeing that it was a workable framework. Supreme Court scholars, please prove me wrong, but I'm unaware of any previous, unanimous SCOTUS decision being overturned.

 

But, of course, I also have a problem with the facts of the case - claiming forced union dues is an impermissible impingement on First Amendment rights. To start with, while compelling dues is based on state law, the entity compelling dues payment (the respondent in the case) is the union itself - a private entity. The First Amendment applies only to governmental regulation of free speech, nothing says that a private entity needs to offer you a bullhorn to say what you want. More importantly, as described in this articles from which I've been cribbing, Janus's world is one where nearly any interaction with a government employer has First Amendment implications. This is where the doctrine of constitutional avoidance comes into play.

 

Constitutional avoidance is a principle in American jurisprudence that states that, if possible, courts should make ruling that do not rely on the Constitution. While it isn't a matter of law per se, the concept of avoidance has existed since the time of John Marshall and never been seriously challenged. There is a good reason for it to exist; failure to follow the principle is an actual example of the conservative bogeyman of "judicial activism". If a person negotiating for higher wages is a matter of free speech that must be adjudicated in federal court, what wouldn't be (note: this was the position of the respondents in the case). Could a judge refuse to try certain crimes, claiming that doing so conflicts with political views? Could a road work refuse to build a road, because his or her political view is that it should go somewhere else?

 

Again pulling from the link above, eliminating the Abood framework will likely lead to larger problems. Like them or not, public-sector unions operating under Abood have greatly reduced the number of strikes by public employees. With no other options due to weakened unions, we can reasonably expect to revert to a time when these strikes were more common. Of course - striking by public employees is often illegal in many states and cities; if forced union dues impinge on free speech, these laws are all clearly unconstitutional. This will be a huge mess, local governments getting sued across the country for anything you can think of (and, in a non-Abood world, I'd support such suits) I know the Court is supposed to rule based on the law - but they aren't supposed to entirely ignore the effects of their rulings either.

 

Let's go further - if every action of a public employee is covered by the First Amendment, why wouldn't this apply to private employees also? Remember that the state in question in this case (Illinois) isn't a part to the lawsuit - it's a private entity suing a private entity. There are all sorts of actions private employers take that would seem to get pulled in to Constitutional judgement by this new "Janus doctrine".

 

All of this said, we know what is going on here. This suit didn't reach the Supreme Court because Janus didn't want to pay his $45. It is entirely funded and supported by the Koch network's Americans for Prosperity. The legal logic and Constitutional basis for the case don't matter to these groups; they view public sector unions as a political opponent and are trying to eliminate them. This is just a friendly vehicle. And, given that four conservative sitting justices ruled in the Koch's favor on a similar case in 2016, and that Neil Gorsuch appears to be a wholly-owned subsidiary of the Koch-Republican Party, there is little doubt as to how this one is going to go.

 

 

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