Jim Dey | Supreme Court's Janus ruling puts onus on unions to recruit

Jim Dey | Supreme Court's Janus ruling puts onus on unions to recruit

The U.S. Supreme Court's Janus v. AFSCME decision was hot off the presses Wednesday when a passel of press releases from union officials and Democratic officeholders started pouring in.

The tsunami represented an "outrage" Olympics of sorts, each commenter grasping for words that came closest to a primal scream.

Democratic gubernatorial candidate J.B. Pritzker said he was "appalled" by the ruling that allows public employees to decide for themselves whether they wish to join a union. State Sen. Andy Manar said the court's ruling will "stifle the voices of teachers, first responders and other frontline workers across the country."

State Treasurer Mike Frerichs said the 5-4 ruling reflects "an extremist, anti-union ideology." They were joined by, among others, Chicago Mayor Rahm Emanuel ("an insult to the middle class"), U.S. Sen. Dick Durbin (ruling rigs "the economy against hardworking Americans across the country") and Attorney General Lisa Madigan ("this decision destroys the role government unions play").

The apocalypse cometh? Maybe.

But that need not be the case.

Public-employee unions lost the irresistible force of coercion in the Janus ruling. But they retain the formidable power of persuasion.

Unions have a strong case to make for the benefits of collective bargaining. Just because union leaders would rather not to have to make that case doesn't mean they can't.

Under the old rules, public employee union leaders in Illinois relied on state law to inform employees that they could either join the union and pay dues or not join the union and pay almost as much in agency fees.

It really wasn't much of a choice, one deeply resented by state workers like Springfield's Mark Janus.

The pro-choice ruling issued by the U.S. Supreme Court rescinds that practice.

Now workers are free both not to join and not to pay for the privilege of not joining. In not paying the equivalent of dues, these non-joiners will no longer have to subsidize the political causes and candidates the union spends dues money to advance.

"In simple terms, the First Amendment does not permit the government to compel a person to pay for another party's speech just because the government thinks that the speech furthers the interests of the person who does not want to pay," Justice Samuel Alito wrote is his majority opinion.

That's where politics come into play. Since most union money goes to Democratic candidates, Democratic candidates fear they won't be getting as much in the future as they have in the past.

Wednesday's ruling was a long time coming. The federal courts have been chipping away at public employee unions' legal authority to coerce payments from nonmembers for years. Their rulings left in place an uneasy compromise, one that barred unions from forcing membership on those unwilling to join but allowing them to extract "fair-share" payments from them.

Those fair-share payments were considered a means of requiring nonmembers to pay for the union benefits they received, including collective bargaining and grievance representation. It supposedly barred unions from taking fair-share payments from nonmembers and using the money to advance political causes and candidates nonmembers did not support. Since money is fungible, that prohibition was, effectively, meaningless.

The fair-share argument, however, is powerful in the sense of a general balancing of interests. But it was a loser in constitutional terms.

"As we have noted, 'free-rider' arguments ... are generally insufficient to overcome First Amendment objections," Alito wrote.

At the same time, Janus rejected the argument that he is a "free-rider."

"He argues that he is not a free rider on a bus headed for a destination that he wishes to reach but is more like a person shanghaied for an unwanted voyage," Alito noted.

The Janus ruling of Wednesday almost was the Friedrichs ruling of 2016. A California teacher, Rebecca Friedrichs challenged "fair share," taking her case to the U.S. Supreme Court.

The untimely death of Justice Antonin Scalia, who was expected to rule in Friedrichs' favor, resulted in a 4-4 tie. Since the 9th Circuit of Appeals ruled against Friedrichs, that pro fair-share ruling stood.

It was left to Illinois Gov. Bruce Rauner to file another legal challenge against fair share. The federal court ruled that he didn't have standing. But Janus replaced Rauner as the petitioner, leading to Wednesday's ruling.

So, once again, the astounding 2016 presidential election loss by Democrat Hillary Clinton to Republican Donald Trump has come home to haunt her party and its public employee union supporters.

If Clinton had won, the Republican-controlled U.S. Senate, acting out of fear that a Clinton nominee would be far worse, would have felt compelled to confirm former President Barack Obama's nomination of federal appeals court Justice Merrick Garland to fill Scalia's position.

After she lost in an almost incomprehensible upset few predicted, emboldened Republicans ignored the Garland nomination and waited for a nominee from President Trump.

That nominee — Justice Neil Gorsuch — cast the fifth and deciding vote in Janus.

Jim Dey, a member of The News-Gazette staff, can be reached by email at jdey@news-gazette.com or by phone at 217-351-5369.