A “half-muffled” democracy?
Monday, Feb 1, 2016 - Posted by Rich Miller
* From a Tribune op-ed…
Rauner’s beef with public unions was echoed during a recent Supreme Court session. A number of justices were troubled that a California teachers’ union requires non-members to pay a portion of members dues. Doesn’t that mean that non-members are forced to pay for political causes that the union supports but that they may not? The union answered that it wasn’t an infringement of the teachers’ right of free speech. Nothing prevented them from expressing their political convictions as individuals.
Some justices seemed skeptical — leading court observers to think the union will lose the argument.
Yet five years ago, the Supreme Court bought it. At issue in the famed “Citizens United” case was whether corporate funds could finance political campaigns. The government argued “that corporate independent expenditures can be limited because of its interest in protecting dissenting shareholders from being compelled to fund corporate political speech.”
The court rejected that argument, saying dissenting stockholders could find other ways to express their views. Should it now turn around and say dissenting teachers have no alternatives would mean that good for the goose is not good for the gander. There would be one rule for corporations, another for unions. And that won’t be good for any of us, whatever our politics. We will be on our way to a semi-noisy, half-muffled democracy.
Your thoughts?
- G'Kar - Monday, Feb 1, 16 @ 12:20 pm:
Wow, I actually agree with a Trib editorial!
But I see this case going beyond simple “free speech.” If the court rules against the Unions it means that unions will still legally have to support these free riders who are part of the bargaining unit.
- 360 Degree TurnAround - Monday, Feb 1, 16 @ 12:21 pm:
That is exactly the “structural reform” Bruce Rauner wants. Scales tipped further in favor of the wealthy, then he’ll agree to tax the middle class.
- Cathartt Representative - Monday, Feb 1, 16 @ 12:21 pm:
I will be informing the Chamber of Commerce that I will no longer be paying duess, but still expect full membership rights if this passes.
- burbanite - Monday, Feb 1, 16 @ 12:22 pm:
If they rule against Unions they should also overturn Citizens United.
- Rich Miller - Monday, Feb 1, 16 @ 12:22 pm:
===I actually agree with a Trib editorial!===
This wasn’t an editorial.
- lake county democrat - Monday, Feb 1, 16 @ 12:23 pm:
Well, we have a muffled democracy now because of gerrymandering (combined with the continuing gerrymandering-ish effects of segregation).
The problem is with Citizens United. In isolation, the Court’s “hinted direction” is right: it’s a little crazy to say that a person has an option to spend money on other speech when the point is to overcome the effect of the speech they were just forced to pay for. But the imbalance Rich points out remains.
- Last Bull Moose - Monday, Feb 1, 16 @ 12:24 pm:
It is much easier to sell stocks than to switch jobs. So it is not a fair comparison.
I think public corporations that spend money on elections with little connection to their corporate profits are breaching their fiduciary duty to shareholders. I have not seen those lawsuits.
- Anon - Monday, Feb 1, 16 @ 12:27 pm:
“Fair share” payments are a cornerstone of Illinois labor law. As Milton Friedman observed there is no free lunch. Individuals are free not to join a union, but if they benefit from collective bargaining activities they need to pay for those efforts.
I believe the SCOTUS would have to reverse itself to side with the opponents of fair share payments.
- old pol - Monday, Feb 1, 16 @ 12:27 pm:
Not a Goose and Gander. Shareholders can divest their holdings - union members cannot divest their their dues.
- scott aster - Monday, Feb 1, 16 @ 12:29 pm:
Didn’t Cit united also give the Unions ability to give $$$$ to the extent that corps??
- chi - Monday, Feb 1, 16 @ 12:29 pm:
It’s clear the government can make people spend money on things they disagree with. Try not paying your Medicare taxes cause you don’t believe in socialized medicine.
- Rich Miller - Monday, Feb 1, 16 @ 12:30 pm:
===union members cannot divest their their dues.===
Sure they can. They can quit their horrible union jobs and go get a non-union job. Plenty available.
- ZC - Monday, Feb 1, 16 @ 12:32 pm:
It’s worth noting, again, you have every legal right to contact your union and say you don’t want your dues to go to political advertising.
Yes you may get dirty looks, but members who don’t appreciate their locals’ “free speech,” don’t have to fund it under the present regime.
- Mark Garrity - Monday, Feb 1, 16 @ 12:33 pm:
In the poorly worded Trib piece it means non members are forced to pay a lower fee than full union dues to be part of the bargaining unit which provides them with benefits whether they are in the union or not. The union is specifically prohibited from spending those non union employees’ fees on political activities. I don’t understand what the problem is here.
- sideline watcher - Monday, Feb 1, 16 @ 12:33 pm:
This is how they think. You can apply this logic to almost everything they demand.
I thought the same thing when the question of pensions came up. I know I’m going to say this sloppily because I’m not a lawyer, but I remember when the argument against being able to re-write underwater mortgages was being talked about. The banks and the chambers argued contract law. That you can’t unilaterally re-write those contracts. There were some saying that would totally save the housing crash if people could simply re finance to what the market would bear instead of being stuck with mortgages that were way more than what they could sell their houses for. We could have ended the crisis! But no. The state essentially argued and Rauner and crew are still arguing that because the state is in a crisis, they can’t afford to pay the pensions, so they should just unilaterally re-write them! My point is that this group of people are never ideologically consistent when it comes to taking care of people. They want what they want period. One rule for rich people and moneyed interests and one rule for regular folks.
- The Man on 6 - Monday, Feb 1, 16 @ 12:39 pm:
The First Amendment does prohibit the government from forcing anyone to speak in ways with which they disagree. If the “Citizens United” principle - that money is speech - is allowed to hold, then yes, requiring non-union public sector employees to contribute money-as-speech against their will should be unconstitutional.
That said, it has long seemed clear that “Citizens United” was a twisted interpretation of the Constitution and that the conservative majority on the Supreme Court only ruled the way they did for partisan political reasons. It is not the only recent decision where sound legal reasoning has been sacrificed in the name of political expediency. In short, do not look for jurisprudential consistency with this Court. They are very used to making the law fit the outcome they wish. If there are 5 votes to keep non-union teachers paying their share of dues into union coffers, a way will be made to make it happen and (somehow) to make it at least appear to fit within the “Citizens United” architecture.
- OldIllini - Monday, Feb 1, 16 @ 12:50 pm:
===They can quit their horrible union jobs and go get a non-union job. Plenty available.===
There are a few jobs available in private schools and church-run schools, but I wouldn’t call that “Plenty.”
- river rat - Monday, Feb 1, 16 @ 12:51 pm:
To buy Scalia’s argument that all bargaining with the government is political and therefore free speech would mean any lumit on bargaining would be an unconstitutional abrdgement of free speech….there goes Rauners dream
- chi - Monday, Feb 1, 16 @ 12:53 pm:
river rat-
Exactly. Conservatives should be careful what they wish for here.
- DmK - Monday, Feb 1, 16 @ 12:54 pm:
There appears to be an unrecognized distinction. Purchasing corporate stock is VOLUNTARY. Union “dues” are confiscatory. Apples and oranges.
- RNUG - Monday, Feb 1, 16 @ 12:56 pm:
The Trib op-ed is on point. If the court were to be consistent with past judgements, they should rule for the union. But the court has also hinted recently it might rule otherwise and overturn fair share if the right case was put in front of them. I don’t have a good guess which way it will come down.
- Anon - Monday, Feb 1, 16 @ 12:56 pm:
IMHO, the key difference that hasn’t been mentioned yet is public vs. private. I see a key distinction between a private company and a public employee. Shareholders aren’t compelled to purchase stock in a company. While public employees aren’t compelled to work in a public sector job, in many professions in Illinois, they are. In addition, courts have ruled many times that public employees have a property right in their jobs that deserves greater protection.
Finally, public companies have to work to earn shareholders. They need to perform well and demonstrate that to investors. Unions have no such responsibility to the general public or their employees. Sure, decertification is an option for union employees that are unhappy, but the process is extremely difficult.
- chi - Monday, Feb 1, 16 @ 1:01 pm:
=decertification is an option for union employees that are unhappy, but the process is extremely difficult=
50% plus one. That’s all it takes. The fact it rarely happens speaks to the fact that unions benefit the employees they represent. It doesn’t mean it’s hard to decertify.
=Purchasing corporate stock is VOLUNTARY. Union “dues” are confiscatory.=
Taking a union job, like purchasing corporate stock, is a voluntary endeavor.
- Chicago 20 - Monday, Feb 1, 16 @ 1:02 pm:
Anon - “Sure, decertification is an option for union employees that are unhappy, but the process is extremely difficult.”
Is it more difficult to decertify a union or more difficult for workers to organize for union representation?
- Anon III - Monday, Feb 1, 16 @ 1:02 pm:
“By contrast, some of the Court’s more conservative Justices clearly seemed to buy into a point crucial to Friedrichs’s argument: the idea that, unlike unions in the private sector, the collective bargaining process for public-employee unions is an inherently political one because the salaries and benefits and policies that the union is negotiating affect government budgets. During DuMont’s argument, Scalia told him that “everything that is collectively bargained with the government is within the political sphere, almost by definition,” and Scalia later told U.S. Solicitor General Donald Verrilli, arguing on behalf of the federal government in support of the union, that the government is “not the same as a private employer” – “what is bargained for is all a matter of public interest.” Roberts echoed this sentiment, telling DuMont that “the amount of money that’s going to be allocated to public education, as opposed to public housing, welfare benefits, that’s always a public policy issue.” ”
http://www.scotusblog.com/2016/01/union-fees-in-jeopardy-in-plain-english/
- Rich Miller - Monday, Feb 1, 16 @ 1:03 pm:
===Apples and oranges. ===
Slavery was abolished. Union jobs are not mandatory for anyone. If you don’t wanna invest in some company, dump their stock. If you don’t want to be in a union, get another job.
- Huh? - Monday, Feb 1, 16 @ 1:04 pm:
Years ago, the Teamsters 916 had a procedure for fair share protesters to donate an equivalent amount to a charity. As I recall, the protesters had to cite a religious teaching that prohibited a contribution to the union. I believe that there were some reporting requirements that the protesters had to comply with as well.
- RNUG - Monday, Feb 1, 16 @ 1:12 pm:
Actually, in some cases as a small investor, you don’t really have much of choice on buying / selling stocks if you are investing in mutual funds or target retirement funds instead of individual stocks. And especially in the case of work sponsored retirement funds, your choice of funds can be severely limited. So the private / public or stock buy / sell choice examples are imperfect similies at best.
- ZC - Monday, Feb 1, 16 @ 1:15 pm:
And again, union dues for political advertising is NOT mandatory nor confiscatory. Just Say No.
This has been constitutional law since the _Beck_ decision in 1988.
- Anon2U - Monday, Feb 1, 16 @ 1:21 pm:
=Union jobs are not mandatory for anyone=
They are if you want to tech in the public classroom. A classroom free from race, religious or financial constraints.
- markg8 - Monday, Feb 1, 16 @ 1:24 pm:
Huh? What religion prohibits being in a union? I’ve never heard of a religious objection to them.
- markg8 - Monday, Feb 1, 16 @ 1:26 pm:
This SCOTUS ruling on the teachers in CA is widely considered to be the other shoe in the Harris vs Quinn lawsuit isn’t it? Has the money run out for Harris and the other moms taking care of their disabled kids yet?
- Demoralized - Monday, Feb 1, 16 @ 1:29 pm:
==They are==
No job is mandatory. Again, if you don’t want to associate with a union then don’t take a union job. It’s really that simple. It doesn’t matter how many time some of you try to argue that membership in a union is forced, you’ll still be wrong.
- NixonHead - Monday, Feb 1, 16 @ 1:30 pm:
markg8 - Jehovah’s Witnesses I believe qualify fot the exemption.
Overall, I think it’s a false comparison. Shareholders aren’t being compelled by the government to fund speech, they’re being compelled by the corporation that they invested in to fund speech by that corporation.
- Ahoy! - Monday, Feb 1, 16 @ 1:30 pm:
I actually agree that non-union members should not be forced to pay for political causes and I disagree with Citizens United which was nothing more than an attempt for corporate take over of elections. There should be consistency and Citizens United should be overturned as well.
Stock holders and non-union members can make their own political contributions and have their own speech instead of being forced to pay for another person’s.
- wordslinger - Monday, Feb 1, 16 @ 1:32 pm:
I’m guessing five members of the Supremes won’t have a problem with the cognitive dissonance.
- ZC - Monday, Feb 1, 16 @ 1:43 pm:
If we totally defund the labor unions’ $$, and all the information and education they provide their members, then maybe (the GOP reasons) those last-minute TV scare ads saying “Give up your health care benefits, your raise and your safe workplace, and resign yourself to your boss’s million-dollar bonus, or else CHIIINAAAAA is gonna get your job” might actually start working.
- Jack Stephens - Monday, Feb 1, 16 @ 1:55 pm:
I read this earlier. If unions do not have “1st Amendment Rights” then neither does business. But businesses should not have “Special Rights” that unions do not have. This commentary is calling out Rauner’s game. And Rick from Michigan and Scottie from Wisconsin.
- Jack Stephens - Monday, Feb 1, 16 @ 2:00 pm:
@dmk:
You can quit your union job and be a mustard shooter at the local franchise burger place, tomato slapper at the sub place, nutmeg duster at a coffee stand….that all vehemently fight unions.
- CapnCrunch - Monday, Feb 1, 16 @ 2:02 pm:
“….you don’t want to associate with a union then don’t take a union job. It’s really that simple.”
Union job?
I thought the State was the employer not a union.
- Jack Stephens - Monday, Feb 1, 16 @ 2:06 pm:
@ahoy:
If someone shops, for instance, at a “xtian” owned hobby store, one that says that their “make believe friend who floats among the clouds” says that Women have no Right to Privacy but Men do….the customer is paying for those political views.
Of course one doesnt have to shop there and support the owners Alternative Lifestyle Choice.
- Whatever - Monday, Feb 1, 16 @ 2:06 pm:
Anybody who thinks they can make a serious analysis of how the Court is going to rule based on the justices’ performance during oral arguments is dreaming. That said, I don’t see that there is a broad constitutional issue here. Fair share supposedly shields nonmembers from contributing to the political activity/speech of the union. They only pay for their representation in the workplace. You might argue that the actual computation of fair share in some cases results in nonmembers paying for political activity, but the cure there is to fix the formula, not to throw out the whole concept, unless you it is impossible to compute fair share accurately. Further, if you do throw out fair share, you will eventually have to throw out the law requiring unions to represent nonmembers, or you will be allowing free riders. I’ll bet every one of the plaintiffs in this case would drop out if the results of choosing nonmembership would be that they have to negotiate their own pay and benefits, and the union could negotiate preferences for its members over nonmembers.
- jim - Monday, Feb 1, 16 @ 2:14 pm:
People should understand that Citizens United isn’t talking about corporations in the traditional sense, as in corporations like Caterpillar and unions like AFSCME.
It’s talking about corporatized political funds, like the ones that George Soros, the Koch Bros. and others support.
For profit corporations are in the business of serving customers, not alienating them.
- Team Sleep - Monday, Feb 1, 16 @ 2:17 pm:
The buying company stock vs. forced unionization upon employment as a teacher is a silly comparison. RNUG put it best: unless you are involved in some sort of a deferred comp or TSP (federal) pre-tax retirement investment, you can freely pick and choose what companies you want to invest in and what companies you want to avoid. No one forces you to buy Wal-Mart stock if you hate Wal-Mart.
In a closed shop state, you have two options if you want a teaching gig. That’s it. You can either take a job with a public school or a private school. This argument that people have choices is a bit beyond the pale. This isn’t the Metro East or suburban Detroit in the 1950s and 1960s when someone who wanted to work at a factory had his or her share of options. As a teacher, you have two. And in some areas, you have one. I grew up in an area where the only private school around closed when I was in grade school. The closest private high school was 45 minutes away. So you were stuck or you had to move. Yeah - those are great options. Rock, meet hard place.
There’s no reason why a teacher can’t bargain on his or her behalf. If the administration employees can, so can teachers.
I know that last point is not currently allowed, so I’ll stop the haranguing comments before they start. That’s an issue that also needs to be brought before the courts.
- Team Sleep - Monday, Feb 1, 16 @ 2:19 pm:
Jack - you are a world class jerk. Your comments and responses are choc full of vitriol and disdain for other commenters and people with whom you disagree.
- Jack Stephens - Monday, Feb 1, 16 @ 2:34 pm:
@team:
No one is forcing anyone to work at a Union shop. Dont work as a teacher then.
Its. That. Simple.
- Team Sleep - Monday, Feb 1, 16 @ 2:38 pm:
It’s not that simple, Jack. You’re taking away someone’s ability to earn a living as a public sector employee if they don’t want to join a union. I’ve never understood how that’s fair. I get the argument from the private side, but even then that’s tenuous if a private employer is found to be in violation of state or federal labor laws and/or has discriminated against an applicant.
- Demoralized - Monday, Feb 1, 16 @ 2:42 pm:
== This argument that people have choices is a bit beyond the pale==
How so? Are you or are you not forced to take a job where union membership is required? It’s a yes or no answer. Nobody is forcing you to become a teacher if that’s your example. So, again, is membership in a union forced? Yes or no?
I’ll give you a hint - the answer is no.
The only thing beyond the pale are those of you arguing that union membership is required. It’s not. Period.
==I’ve never understood how that’s fair==
Who cares if it’s fair. Life isn’t fair. Get over it.
- @MisterJayEm - Monday, Feb 1, 16 @ 3:11 pm:
“You’re taking away someone’s ability to earn a living as a public sector employee if they don’t want to join a union.”
And you can’t have your cake and eat it too. Life is full of bothersome choices.
– MrJM
- Ghost - Monday, Feb 1, 16 @ 3:12 pm:
most stock holder have free choice to sell their stock amd get all the way out… unless its stock to employees which has to be held for a year….
you cant sell your union membership and get out. So i am not sure these are direct correlations. But for employee stock owners mayb…
- David Starrett - Monday, Feb 1, 16 @ 3:36 pm:
Thanks river rat, your argument is pretty intriguing. It seems to hang on the First Amendment’s “petitioning” clause, and the SCOTUS has never addressed that post Citizens United.
- NixonHead - Monday, Feb 1, 16 @ 4:36 pm:
The ruling will have no impact on private sector stockholders. It is the government that has to apply the First Amendment to it’s own activity, not the private corporation with stockholders. That’s the whole point of the California teachers case - the GOVERNMENT is forcing employees to fund speech, not a corporation with stock holders.
- Anon2U - Monday, Feb 1, 16 @ 5:00 pm:
=Again, if you don’t want to associate with a union then don’t take a union job. It’s really that simple.=
Ugh.
The only way to teach in Illinois, in public schools, is to join a union. Dislike unions but want to teach children of all race, religion and financial status? Great! Just don’t do it in Illinois. Union bosses know better than you so pay up!
- cdog - Monday, Feb 1, 16 @ 7:24 pm:
Excellent argument to test this!!!
I hope some one with access to SCOTUS points out this potential contradiction!!!