Breaking the Law—and Blaming the Supreme Court

Illinois Governor Bruce Rauner refuses to collect “fair share” fees from public employees because he expects them to be found unconstitutional.

Executive overreach, now as always, is in the eye of the beholder.

George Will, for example, has railed against “institutional vandalism of Barack Obama’s executive unilateralism.” But in his admiring profile of Illinois Governor Bruce Rauner, George Will says that Rauner has “a powerful voice and a plan to break ‘a totally rigged system.’” How? “By executive order, Rauner has stopped the government from collecting for unions ‘fair share’ fees from state employees who reject joining a union.”

Rauner was inaugurated in January. In February announced that he would no longer obey the state statute requiring the state to collect the “fair share” fees from public employees. Why? In the 2014 case of Harris v. Quinn, his proclamation says, five justices “questioned” the fees.

It is one thing to refuse to defend a law in court because a chief executive believes its unconstitutional; it is another thing to assert a right to break it because the Supreme Court may eventually strike it down. President Obama has never claimed the power to set aside a federal law. He didn’t defend the Defense of Marriage Act, but he enforced it until it was struck down.  Imagine the furor if he had refused to follow it.

Rauner, a former private-equity manager who estimates his net worth at half a billion and owns seven luxury homes around the country, despises labor unions and regards workers as overpaid. He wants to allow Illinois cities and counties to declare themselves “right to work” zones. Under Illinois law, corporations and unions can contribute to campaigns; Rauner wants to ban public-employee unions from doing so.  

After Rauner’s surprise announcement, Illinois Attorney General Lisa Madigan found that under Illinois law, Rauner lacked the authority to give the order and that withholding the payments violated Illinois law. In another opinion, she pointed out that Rauner’s local “right to work” plan probably also violates federal law. (Under Section 14(b) of the Taft-Hartley Act of 1947, states may pass “right to work” statutes—laws  that forbid employers to negotiate exclusive contracts with labor unions; however, the Act does not empower parts of states to do so.)

Rauner filed suit in federal District Court, asserting that the fees are unconstitutional and that he isn’t bound by state law. Madigan intervened on behalf of the State of Illinois: A state official, she argues, can’t ask a federal court to rule on his powers under state law. Late last month, in an attempt to rescue the suit, the governor added three workers as plaintiffs; the court will hear arguments on standing at the end of May. Meanwhile, the unions have filed suit against the governor in state court.   

Let’s understand the issue here: Under Supreme Court precedent, states may—if they wish—authorize contracts with public-employee unions designating the union as the “bargaining agent” for employees of different agencies. But under the First Amendment, public workers can’t be compelled to join a union; that would violate their freedom of association. And they can’t be compelled to contribute money to political activities—such as supporting candidates or ballot initiatives, or filing lawsuits against the state. Under a 1977 case called Abood v. Detroit Board of Education, however, states can allow the unions to collect “fair share” fees from objecting workers. These fees pay only for the “non-political” work the union does: negotiating contracts and benefits and administering grievance and other workplace programs. If unions misapply the fees, members can—and often do—sue for a refund.

Union supporters argue that non-members benefit from union-negotiated contracts, and shouldn’t be allowed to “free ride.” In a non-binding part of Harris, however, Justice Alito wrote that everything a public-employee union does is political: “In the public sector, core issues such as wages, pensions, and benefits are important political issues, but that is generally not so in the private sector.  ...  [A]s state and local expenditures on employee wages and benefits have mushroomed, the importance of the difference between bargaining in the public and private sectors has been driven home.” Thus, he argued, even contract-negotiation fees are “political speech,” for which objectors should not have to pay. His opinion suggests that the Court may soon strike down “fair share” fees (a pending petition for cert. in a California case may give it the opportunity); but it hasn’t done so yet.

I have been employed by state governments for a quarter-century; I draw a pension from the state of Oregon; and I am a former member of the Newspaper Guild. I think unions offer important protections for workers public and private.

I will, however, gladly concede that the size of state-pension obligations is problematic. That’s especially true in Illinois, which has the largest pension-funding shortfall—$111 billion—in the country.  A bill addressing these issues, passed under former governor Pat Quinn, was recently struck down as a violation of the Illinois constitution.  The state is in a mess, and something needs to be done.

Getting it done is a matter of politics. In Wisconsin, Scott Walker’s rollback of collective-bargaining rights made him a presidential contender. This year, Wisconsin passed a “right to work” law. Michigan and Indiana passed similar laws in 2012. Meanwhile, voters in Ohio rolled back an anti-union statute passed by the legislature. “Right to work” bills have been introduced in many of the 25 states that do not already have them.  

In other words, the political process is working; The unions win some, and lose some. Lately it hasn’t been going labor’s way.

Nonetheless, critics say the Court nonetheless must act now, because “fair share” fees violate the First Amendment. But do they?

In Citizens United v. Federal Election Commission, the Court held that for-profit corporations have the same free-speech rights as individuals. The government had argued, among other things, that corporate electioneering “distorted” public debate because of corporations’ vast wealth. It further suggested that using corporate funds for political causes violated the rights of shareholders. Corporate cash, legally, is “shareholders’ equity,” not a slush fund for managers. Shouldn’t the real owners be asked if they want their money used to sway federal elections?

The Court brushed off both concerns. As for distortion, “political speech cannot be limited based on a speaker’s wealth.” And shareholders—well, they could try to change the corporations’s behavior “through the procedures of corporate democracy.”

Citizens United allowed unions to make “electioneering expenditures” also. But the conservative majority has begun to hint that union free speech—even contract negotiations and grievance programs—is different and dangerous.  

Is there a real difference between workers who object and shareholders who object? State workers in “fair share” shops can’t avoid paying union fees except by leaving their jobs; but many investors are faced with the same choice. The glib retort is, “investors can just sell,” but many really can’t. If my state pension fund, for example, invests in businesses I dislike, I can only dissociate myself by giving up my pension, or lobbying the fund’s officials. If the “mechanisms of corporate democracy” are good enough for me, why shouldn’t objecting state employees use good old politics to oppose the fees?  

If corporate political speech doesn’t “distort” politics, why should there be a different rule for unions? In last term’s McCutcheon v. Federal Elections Commission, Chief Justice John Roberts, writing for the five-justice majority, struck down federal limits on individual contributors: “[G]overnment regulation may not target the general gratitude a candidate may feel toward those who support him or his allies, or the political access such support may afford.” Are unions somehow barred from achieving gratitude and access?

Speech, says the conservative majority, is speech, and politics is politics, and government can’t limit either.

Will it now say: “Unions, not so fast”?