A First Amendment clash over public sector unions left the justices deadlocked last year after the death of Justice Antonin Scalia. But union opponents have quickly steered a new case through federal courts in Illinois and they plan to appeal it to the high court on Tuesday.
The groups say unions representing government employees violate the free speech rights of workers by collecting money from people who don’t want to join.
If the high court agrees, it could threaten the financial viability of unions and reduce the clout of labor, one of the biggest contributors to Democratic political campaigns.
The Supreme Court seemed all but certain to rule against the unions in a similar case — Friedrichs v. California Teachers Association — argued before Scalia died. That case, involving a California teachers’ union, was the first of several to split 4-4 while the court was short-handed. The deadlock left in place a four-decade-old practice that lets public-sector unions collect fees from non-members to cover the costs of collective bargaining.
“Our hope is that a year from now, the Supreme Court will end this injustice and free every public school teacher, safety officer and other government worker to decide for themselves whether or not to financially support a union with their hard-earned money,” said a joint statement from the two organizations backing the case – the National Right to Work Legal Defense Foundation and Liberty Justice Center.
The Supreme Court won’t consider taking up the case until September at the earliest.
The latest appeal comes as union membership in the U.S. hit new lows last year, sinking to just 10.7 percent of the workforce. As private union membership has steadily declined, about half of all union members now work for federal, state and local government. Most of them are in states like Illinois, New York, and California that are largely Democratic and seen as friendly toward unions.
The Illinois case involves Mark Janus, a state employee who says Illinois law violates his free speech rights by requiring him to pay fees subsidizing a union he doesn’t support, the American Federation of State, County and Municipal Employees. About half the states have similar laws covering so-called “fair share” fees that cover bargaining costs for nonmembers.
Janus is seeking to overturn a 1977 Supreme Court case that said public workers who refuse to join a union can still be required to pay for bargaining costs, as long as the fees don’t go toward political purposes. The arrangement was supposed to prevent nonmembers from “free riding,” since the union has a legal duty to represent all workers.
A federal appeals court in Chicago rejected Janus’ claim in March, ruling that the fees were constitutional under the 1977 case, Abood v. Detroit Board of Education.
AFSCME President Lee Saunders called the case an effort to chip away at the power of unions “to negotiate a fair return on our work, provide for our families, and lift up the concerns of all working families.”
Last year, the issue split the court’s liberal and conservative members during oral arguments in the California case. Several conservative justices, including Scalia, seemed ready to scrap Abood. They said bargaining issues like teacher salaries, merit promotions and class sizes are all intertwined with political issues involving the size of state budgets and how taxpayer dollars should be spent.
While unions avoided a loss after Scalia’s death, Gorsuch is seen as equally conservative, though he has not expressed views on the issue of fair share union fees.
For unions, the loss of millions in fees would reduce their power to bargain for higher wages and benefits for government employees.
“This is an aggressive litigation campaign aimed at undermining unions’ ability to operate by forcing them to represent people for free,” said Benjamin Sachs, a professor at Harvard Law School specializing in labor law.
It’s no secret that America’s star is fading on the world stage these days, under a president whose authoritarian tactics have outraged allies and enemies alike. But a recent audit by an international human-rights monitor reveals that, even before Trump’s buffoonery took over the White House, Washington was failing dramatically to live up to its reputation as a beacon of democracy. UN Special Rapporteur on Freedom of Assembly Maina Kiai’s dissection of the nation’s systematic betrayal of basic human rights centers on America’s shrinking public square.
Based on a year-long observation of the country’s governance and civic life that stretches from mid-2016 through the start of the Trump administration, Kiai, whose post recently ended with the publication of the report, sees a massive erosion of the right to freedom of assembly. The concept encompasses the right to organize and protest and other essential forms of civic and public activism. Though it is formally inscribed in the Bill of Rights, the precept has come under assault under the Trump administration, Kiai says, stoked by the president’s “hateful and xenophobic rhetoric during the presidential campaign” and blatant flouting of civil liberties in his policies and governing style.
Kiai concludes that over the past year a growing swath of communities of color, workers and immigrants, and other marginalized groups have felt deterred from engaging in social movements, staging protests and other forms of citizen action, or campaigning to defend community and workplace rights.
One overarching obstacle is the ingrained culture of racism, which has persisted since slavery through Jim Crow and the ongoing struggles with institutionalized discrimination. Citing police-community conflict as a primary illustration of structural oppression, Kiai argues, “Racism and the exclusion, persecution and marginalization that come with it affect the environment for exercising association and assembly rights.” His report directly denounces government agencies’ “hostility towards the Black Lives Matter movement,” contending that “The government has an obligation under international law to protect and promote” the group’s peaceful exercise of the right of free assembly. Similarly, the report describes structural corruption driving the use of perverse incentives in the policing of black communities, with “police departments raising revenue through fines and rewarding or sanctioning police officers based on the number of arrests.” These patterns of aggressive policing, Kiai says, disempower neighborhoods by deterring dissent.
The evaluation, focused on field research conducted in 2016 and analyzing issues that have intensified under Trump, documents increasingly anti-democratic enforcement tactics against immigrant communities at risk of civil-rights abuses. Kiai cites reports of immigration agents “conducting surveillance at assemblies focused on migrant issues,” which he argues “chills the exercise of assembly rights.” As noncitizens who cannot vote and lack other legal rights, he adds, protesting is “one of the only tools they have to voice their concerns. The government should encourage the exercise of this right by everyone, especially marginalized groups.”
Kiai tackles direct restrictions on the right to protest as well, noting an “increasingly hostile legal environment for peaceful protesters in some states,” particularly trumped-up penalties against spontaneous or “unpermitted” peaceful public demonstrations. South Dakota and Tennessee recently passed laws against blocking streets during protests. Nationwide, about 29 such anti-protest bills have been proposed or passed since November, coinciding with an unprecedented wave of street demonstrations against Trump.
Some jurisdictions deter activists by charging organizations hefty fees simply for the right to stage a public demonstration. Burdening the citizenry with onerous fees and red tape, Kiai says, clashes with international guidelines against requiring pre-approval of planned protests. The report recommends instead allowing groups to simply notify officials of, rather than seek prior approval for, planned protests, arguing that giving government extensive control over dissent “risks turning the right into a privilege.”
Deterioration of free-assembly rights is glaringly apparent in the workplace. Despite the United States’ historical role as an architect of the International Labour Organization standards on workers’ rights, the report argues that its foundational labor law, the National Labor Rights Act, “legalises practices that severely infringe workers’ rights to associate” and “provides few incentives for employers to respect workers’ rights.”
Labor regulation is eviscerated by weak enforcement and underfunding, particularly “compared to the massive resources dedicated to other law enforcement functions in the United States.” Given the prevalence of endemic violations like wage theft in low-wage industries, Kiai observes an imbalance in government priorities: protecting corporations’ profits while unraveling basic regulatory protections for workers as well as their right to organize, at a time when traditional unions are shrinking as a political force.
The environment for workers is extremely hostile in the US, and frankly it shocked me…. Where’s the outrage? The US had the War on Drugs, so why not a War on Abusive Employers? It’s clearly an epidemic that has the potential to deeply damage the economic and social fabric of the country.
Kiai’s analysis also extends beyond issues surrounding the right to protest and warns of the corrosive impacts of capitalism on democracy. Citing the mass protests against the Dakota Access Pipeline as an illustration of the corporate assault on grassroots activists, he argues that Trump’s crackdown on protesters reflects an agenda of “market fundamentalism,” exploiting natural resources for short-term profits while neglecting the human rights of impacted communities, which “undermines indigenous people’s land, territorial and resource rights.”
Kiai stresses the irony of America failing to “walk the talk” as a liberal democratic superpower. The United States has repeatedly supported, and often helped develop, international standards on, for example, the right to free speech under the United Nations framework, yet systematically fails to institute the same principles in domestic law. Nonetheless, he concludes that despite what appears to be a regression in free assembly rights under the new president, civil society remains a vibrant, if embattled, force of resistance:
Trump’s rhetoric is often violent and divisive, with a heavy authoritarian streak. He doesn’t even pay lip service to fundamental rights…. It’s not an easy environment in which to exercise your expressive rights, and that environment seems to have become markedly worse since my visit. Yet despite this, we’ve seen the emergence of a massive and sustained protest movement–that’s something that is truly encouraging and moving.
Despite, or because of Trump’s authoritarianism, a counter-populist movement is building, renewing the meaning of free assembly as a coming together of the dispossessed.
State of North Carolina Bertie County The examination of Sundry Negro Slaves touching a conspiracy supposed to exist among the slave to rebel taken at Windsor before Justice assigned to keep them from the County of Bertie above named taken at Windsor this ninth day of June one hour and eighteen hundred and two. That […]
Marginalized into nothingness. I’ll say ‘people are being enslaved and no one seems to care or even see them. More concerned with climate change than your enslaved neighbor’s freedom.’ They’ll say can’t we do both in concordance? Both are equally important. Then on another day, I’ll say ‘children are being subject to a school […]