Time to overrule Abood

OCTOBER 2017 TERM

Public employee unions are the only associations in the country permitted to take money — garnished wages — from non-members who do not support their goals. In Davenport v. Washington Education Assn., the U.S. Supreme Court described laws that empower unions to coerce funds from non-union members as an “extraordinary state entitlement to acquire and spend other people’s money.” Nonetheless, the Supreme Court’s decision in Abood v. Detroit Board of Education (1977) has allowed that wage garnishment on the theory that without such entitlements, unions’ collective bargaining efforts might be undermined by “free riders.” A series of cases upholding workers’ First Amendment rights to speak and associate as they choose has steadily undermined the faulty foundations of Abood, and revealed that decision’s unrealistic view of public-employee unionism. With the certiorari grant in Janus v. AFSCME, the time is ripe for the Supreme Court to overrule Abood once and for all.

Abood went wrong when it failed to recognize the inherently political character of all public employee union actions — even those connected to collective bargaining. The difference between public and private sector unions is that public sector bargaining is a political process, directly involving the whole public, concerning the allocation of scarce taxpayer government resources. That is why all of the Supreme Court’s attempts to distinguish public employee union collective bargaining from other types of political and ideological activities have proven illusory. No such logical distinction ever did, or can, exist. In states such as Illinois, where Mark Janus works, and in California, public employee unions enjoy a uniquely powerful position to influence the adoption of public policies.

Examples of California public employee unions politicking on matters that overlap work conditions and general public policy are legion. For example, the California Teachers Association’s successful advocacy for Proposition 98, which compels the state Legislature to devote 40 percent of all state revenues to public schools, affects wages and working conditions and has long-term effects on the state’s (in)ability to produce a balanced budget. Teachers as employees benefited because the funding formula increased the budgets of local school districts, most of which went to teacher salaries and benefits. But in their capacity as citizens and taxpayers, those same teachers may have different opinions about the wisdom of a constitutional provision that ties the Legislature’s hands in allocating limited revenues among the many different services the state provides. It is simply not possible to classify such issues solely as employment-related, and the First Amendment does not empower public-sector unions to take a position on these issues with money taken from workers without their permission.

Collective bargaining negotiations are only one avenue for unions to pursue their goals. The negotiations, far from occurring in a vacuum, are intimately tied to the close relationship that unions develop with the elected officials ostensibly on the other side of the table. School board members stand for election and depend on the campaign support of their bargaining “adversaries.” In a 2013 study of local school board elections, incumbents who did not have a union endorsement lost more often than not, but incumbents with union support won 92 percent of their races. Board members thus suffer a conflict of interest between their role as employers and managers, and their role as public officials who are supposed to exercise objective judgment on behalf of taxpayers and parents.

While the public teachers’ union is the largest in California, other public employee unions also wield considerable power within the state — funded in part by non-consenting workers whose wages are garnished without their consent. The California Correctional Peace Officers Association, representing prison guards, uses its political influence to advance a highly successful pro-incarceration agenda, to criminalize a greater range of behavior, favor imprisonment over rehabilitation options, and advocate for longer sentences and less parole — anything that ultimately results in the building of more prisons and the hiring of more guards. Just as the CTA works to benefit union-member teachers, not students or the general public; so, too, does the CCPOA work to benefit its union-member prison guards, not prisoners or general public safety.

The unions’ hysterical reaction to the Janus certiorari grant shows only their dependence on coercion to support their goals. They would be far better served to consider other methods of increasing membership if they are no longer able to steal from non-members. It’s far past time for public employee unions to think about how to attract members who support their goals. Of course, this means the union leadership would have to be more responsive to the priorities and interests of its members, with their diverse political leanings. If it did so, the union would not face potentially dramatic declines in membership when the unions can no longer garnish workers’ wages.

Government employees work for the public and are paid by the public, and at the same time are also taxpaying members of the public. For the state to force them to subsidize one side of these debates — a side with which many of them for good reason disagree — is unfair, disrespectful, dangerous, and unconstitutional. America has a proud tradition of associations that pursue every possible interest and frequently lobby the government for legislation favoring their interests. Other than public employee unions, these associations are voluntary, supported and subsidized by members who share common goals. And, of course, they are protected by the First Amendment. Janus gives independent workers reason to hope that the Supreme Court will soon end the public employee unions’ ability to garnish their paychecks for the inherently political act of collective bargaining for taxpayer-funded wages and benefits.