In recent years Republican governors in the Midwest have taken on organized labor repeatedly. Scott Walker of Wisconsin weakened public-sector unions in the same state that, in 1959, became the first to pass a collective bargaining law for public workers. Michigan’s Rick Snyder signed a “right-to-work” law prohibiting union shops in the state known as the home of America’s automobile industry.
But Bruce Rauner, Illinois’ new governor, might have the most ambitious plan of all. His gambit for curbing the power of government employee unions in Illinois, if successful, would also reduce their influence nationwide.
The plan involves bringing a case before the U.S. Supreme Court in an attempt to have the court declare that public employees cannot be required to participate in a long-standing feature of collective bargaining. Several conservative justices on the high court seemed eager to do that last year, but ultimately left the question unresolved.
Rauner’s strategy could unravel before it gets to the high court, because of significant legal and political obstacles in the way. But as a Republican governor looking to curtail labor’s influence in a state where Democrats dominate the state legislature -- and where many Republican lawmakers remain friendly with unions -- Rauner’s best hope of a local victory may be a national victory.
The thrust of Rauner’s legal argument is that it violates the First Amendment to require public workers to pay unions a fee for the services they provide (such as collective bargaining and grievance processing), even if they do not belong to the union. Those “fair-share” fees are typically somewhat less than full union dues, because they do not cover the costs of political activity like lobbying or involvement in elections.
The fair-share fees, also called agency fees, are a common target for conservatives pressing “paycheck protection” or “right-to-work” proposals for both the public and private sector. In recent years, conservatives have attacked agency fees for public workers on the grounds that collective bargaining itself is inherently political when the employer is a government body. A union that presses for raises, by that theory, is making a political case for increased spending.
But Paul Secunda, the director of the Labor and Employment Law Program at Marquette University in Milwaukee, said agency fees are key to making labor unions effective.
The collective bargaining law Walker signed in Wisconsin four years ago contained many new limits on union activity. But “the most important act of [the law] was the inability to collect dues for collective bargaining and grievance processing,” Seconda said. “That’s the meat of what unions do from day to day.”
Wisconsin’s teacher unions lost 30 percent of their membership within two years of the law’s passage.
“It’s not surprising that the effect is to decimate unions, and, of course, that is exactly the Republicans’ political objectives. This is clearly a political ploy to take away a major supporter of the Democratic Party,” Secunda said.
Government workers are labor’s stronghold. Nearly 36 percent of public employees belong to unions, compared to less than 7 percent of employees in the private sector.
Public-sector unions can also be major players in elections, spending nearly $73 million in state elections throughout the country last year, according to the National Institute on Money in State Politics. It is a fact Rauner knows well. The billionaire governor’s major opponents last year were labor-backed candidates in both the Republican primary and in the general election.
Earlier this week, Rauner sued dozens of public-employee unions and issued an executive order to place the fair-share fees in an escrow account while the litigation is resolved. But he cannot prevail without the high court’s intervention, because all of the other judges in the country are bound by a 1977 Supreme Court decision called Abood v. Detroit Board of Education that permits public-sector unions to collect agency fees.
Conservative justices on the high court have criticized that decision and, last year, came very close to striking it down in an Illinois case called Harris v. Quinn. A five-member majority called the Abood decision “questionable on several grounds,” but avoided the question of whether it ought to be stricken down.
Both Rauner’s lawsuit and the executive order refer extensively to the majority’s reservations in Harris v. Quinn, often in language that gives the impression that the Supreme Court already declared the agency fees to be illegal.
“A majority of the Supreme Court also recognized in Harris that ‘fair-share’ provisions in public employee collective bargaining agreements impose First Amendment concerns not necessarily presented in the private sector,” Rauner’s lawyers wrote in the lawsuit.
“The collective bargaining process itself is political when taxpayer funds go to pay the negotiated wages and benefits, especially given the great power of unions in electoral politics and the size of public employee payrolls,” they added.
Supporters of Rauner's actions agree that the issue will come before the high court. “There’s no question that this… ultimately is going to be an issue the Supreme Court is going to need to deal with,” said Patrick Semmens, a spokesman for the National Right to Work Legal Defense Foundation. “They’ve kind of been inviting that case.”
A high court decision could come well before Rauner’s case makes it to the court. A group of California teachers who opted out of their union recently asked the justices to consider a similar challenge, and other cases are pending in Texas and Massachusetts, Semmens said.
The justices are expected to vote on whether to hear the California case, called Friedrichs v. California Teachers Association, in the next few weeks. If the court adds the case to its docket, it would likely be decided by June 2016.
Meanwhile, Rauner’s actions face other challenges back in Illinois.
Illinois Attorney General Lisa Madigan, a four-term Democrat, will likely seek to intervene in the case to defend the state labor law that authorizes the agency fees.
“The current state of the law is that fair-share fees are constitutional. As recently as last year, the United States Supreme Court was urged to rule that they were unconstitutional. The court explicitly declined to do that, leaving in place the case law saying these fees are constitutional,” said Ann Spillane, Madigan’s chief of staff.
The executive order that accompanied the lawsuit could also be rescinded by a majority vote in either chamber of the Democratically controlled General Assembly, if lawmakers first determine it contravenes state statutes or reorganizes government.