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‘But Gorsuch’ Is More Than a Slogan

Sacramento

We’ve got a box of red balls at the office imprinted with a simple line drawing of U.S. Supreme Court Justice Neil Gorsuch and the words, “But Gorsuch.” Whenever someone complains about President Donald Trump — and I routinely complain about his crude personality and some of his policies — we can chuck the ball at the wall and remind ourselves of a redeeming feature of his presidency. It was a fun idea, courtesy of the think tank that employs me.

This hasn’t relieved much stress, but reading about the latest high-court deliberations and realizing that Gorsuch is on the court has done wonders for my soul. This week, the court began oral arguments in Janus v. American Federation of State, County and Municipal Employees. The case centers on these questions: Should public-sector workers be forced to pay dues, even though they might vigorously oppose the agenda of their union representatives? Does this violate their First Amendment rights?

Practically speaking, this case could — and probably will — dramatically roll back the power of government unions in non-right-to-work states. My writing focuses on California, where such unions essentially control all levers of government. The results are clear: massive pension and other debts to pay for crazy levels of public-sector compensation, the obliteration of public budgets and services, the protection of bad teachers and other workers.

The status quo dates back to the 1977 high court’s Abood decision. Back then, the courts “split the baby” in its decision surrounding similar questions. It ruled that workers were not required to pay for unions’ direct political activities, but must pay for those related to bargaining for contracts — even if they chose not to carry the union card. The justices were concerned that “free riders” would get the benefits of union membership without having to pay for them.

There have been myriad problems with this creaky court compromise. For starters, unions get to decide how much money goes to collective bargaining, and they reportedly have made it unreasonably difficult for conscientious objectors to opt out of their dues-paying. The bigger issue, however, is that everything unions do is ultimately political. Illinois municipal worker Mark Janus argues that he shouldn’t have to support any of the union’s activities given that everything it does involves a tug on public funds and has an impact on public policy.

If, say, a union secures a higher pension benefit in negotiations, that benefit is paid by public dollars and comes at the expense of other services. If a teachers’ union imposes an additional hurdle to firing a bad teacher, that undermines the education that’s provided in the public schools and harms society in general. Why should workers be forced to subsidize such things if they object to them? A few years ago, in a related case, the court encouraged a challenge on this point.

It looked like the days of mandatory union dues were coming to an end. The Friedrichs v. California Teachers Association case involving the identical issue was argued before the Supreme Court in January 2016, but then conservatives shortly thereafter lost their court majority with the untimely passing of Justice Antonin Scalia. The court subsequently deadlocked 4-4, thus leaving the Ninth Circuit Court of Appeal’s pro-union decision in place.

After Gorsuch filled the vacancy, the court agreed to hear the Janus case. The new justice didn’t say a word during the hearing this week, but Justice Anthony Kennedy noted, “What we’re talking about here is compelled justification and compelled subsidization of a private party, a private party that expresses political views constantly,” according to a report in Reason. Court watchers on the Left and Right expect some rollback of mandatory union dues.

The unions know what’s coming down the pike. The California Teachers’ Association published a presentation during the Friedrichs deliberations titled, “Not if, but when: Living in a world without Fair Share.” (“Fair Share” is the term unions use to refer to such mandatory dues payments.) The teachers’ union document actually was rather thoughtful, in that it called on the union to do a better job marketing its services to potential members.

Some other unions have taken a similarly constructive approach, even as others have done some far-less admirable things. In California, Democrats passed a new law that gives government unions the right to hold recruiting sessions on work time at the workplace. Some unions have sent out contracts to their members with “trap language” that essentially convinces them to give up in advance (at least temporarily) any new rights they might get following a Janus verdict. Many unions and their advocates have depicted the case in overheated ways.

The court could take a variety of approaches, but ultimately any barring of mandatory union dues payments would revamp the current political landscape. Unions would certainly lose large portions of their membership, as we’ve seen in Wisconsin following Gov. Scott Walker’s notable reforms. Their budgets could plummet. They would have to spend more time focusing on providing benefits to members rather than in controlling state Capitols.

There might even be renewed competition. Currently, workers must pay dues to the union that has monopoly control over their bargaining unit. Depending on how the court rules, we could end up with a situation where multiple unions — even some conservative-minded ones — would vie for membership among various groups of workers.

In a separate case that’s coming to the California Supreme Court, the justices there are reviewing a union challenge to what’s known as the “California Rule” — a series of court decisions that bans state and local governments from reducing public-employee pensions even going forward. Even the Jerry Brown administration weighed in on reforming the rule.

I’m too much of a cynic to believe that union power will be totally neutered, but if these two cases are ruled as expected, it will certainly level the playing field. As I mentioned above, the state’s unions are the main impediment to any sort of fiscal reform, or to any substantive improvement in California’s decrepit public services. Nothing can be fixed until this special interest group no longer has a stranglehold on the state government.

The Janus case is the big one, though. And it might really help those of us living in blue states. It’s not the most watched result of the Trump presidency, but it could be one of the most substantive results of it to date. Anyway, waiting for the court’s decision certainly is more satisfying than throwing stress balls — or banging my head — against the wall.

Steven Greenhut is Western region director for the R Street Institute. Write to him at sgreenhut@rstreet.org.

Steven Greenhut
Steven Greenhut
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Steven Greenhut is a senior fellow and Western region director for the R Street Institute. Write to him at sgreenhut@rstreet.org.
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