Public employee unions near-death in Supreme Court

April 2, 2016

OPINION by PETER SCHEER

Public employee unions, the most powerful special interest group in California and most other states, came within a heartbeat of losing that power, as a legal challenge by dissident public school teachers came to a close in the U.S. Supreme Court this week.

I use the word “heartbeat” somewhat literally, because it is all but certain that Justice Antonin Scalia would have cast his vote to create a 5-4 majority in favor of the teachers’ First Amendment argument in Friedrichs v. California Teachers Assn. As it was, the remaining eight justices split 4-4, with the consequence that the court of appeals’ pro-union decision was left standing. (Legally speaking, it’s as though there had never been an appeal to the Supreme Court).

The issue before the Supreme Court was whether the compulsory funding mechanism common to all government unions–those representing teachers, police, firefighters, prosecutors, and more, both at the state and local levels—was unconstitutional.

How so? Because, claimed the teachers, requiring workers to pay dues to their union compels  workers to back the union’s political stands, in violation of the First Amendment’s free speech clause. (Interestingly, this is essentially the same “coerced speech” argument that Apple made to oppose a court order directing that it write code to weaken security of the iPhone).

The dissident teachers urged the Court to overturn a 1977 precedent and rule that, because all activities of government unions—even salary and benefit negotiations—raise controversial political issues, the First Amendment requires that ALL dues payments must be optional. Not just a portion of dues payments (for political contributions, lobbying and such, for which workers have long been able to claim refunds), but ALL dues payments.

Now you can see why the Friedrichs case was a near-death experience for public sector unions. However, union leaders should not mistake their temporary good fortune for vindication. Public opinion has turned strongly against them, as citizens realize that escalating pension and healthcare obligations—negotiated in secrecy by union-backed elected officials—are unsustainable. There are limits to voters’ willingness and ability to pay for employee benefits that they themselves don’t have (and wish they did). Those limits have been reached.

The non-decision in the Friedrichs case is a reprieve for government unions, not a salvation. The First Amendment challenge to compulsory dues will resurface. New suits could be brought under the free speech clauses of state constitutions. And except in the states covered by the 9th Circuit Court of Appeals, the federal courts remain open to renewal of First Amendment claims modeled on the Friedrichs litigation.

There’s no predicting how the Supreme Court, with a full complement of nine justices, would decide free speech arguments against compulsory union dues. Merrick Garland, President Obama’s nominee to the Court, is a moderate democrat, strong on First Amendment rights, who, if appointed, could go either way. Because First Amendment issues often cut across partisan lines, a more conservative nominee cannot be counted on to vote against the unions; likewise, a more liberal nominee could produce an unpleasant surprise for democrats.

Public employee unions are at an inflection point. They can choose business as usual, trying to maintain political dominance through campaign contributions and secrecy. Alternatively, they can embark on a strategy of winning back rank-and-file and public support, and doing so through persuasion in free and open debate. This strategy worked pretty well for these unions in the 1950s and 60s, when their agenda was more in sync with the desires of voters.

Over the long term, it is the unions’ only viable strategy.

Peter Scheer, a lawyer and journalist, is executive director of First Amendment Coalition.