In it, but not of it. TPM DC

Who Is Behind The Supreme Court Case That Could Cripple Public Unions?

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AP Photo / Stephan Savoia

The case -- the oral arguments for which the Supreme Court is hearing Monday -- involves what are known as “agency fees” -- or dues that fund the portion of unions' efforts to collectively bargain for policies that benefit all workers, not just union members. A ruling against public employee unions would threaten threaten their ability to address the "free rider problem" -- meaning workers who can refuse to pay dues but still benefit from unions' collective bargaining.

Friedrichs v. California Teacher’s Association was pulled together by the Center for Individual Rights, a conservative public law firm that also been involved in some major challenges to affirmative action policies and to the Voting Rights Act. Its donors rolls have been connected to the web of dark money associated with the Koch Brothers.

CIR worked with Michael Carvin, the lead attorney on the suit, who is a partner with the DC office of the law firm Jones Day. Carvin led the two Supreme Court challenges to Obamacare as well as George W. Bush’s case in front of the Florida Supreme Court during the 2000 recount fight.

"We wanted to be clear that we were fighting for the right of a minority teachers to not have to pay for the union because they fundamentally disagree with it, so this is a free speech case -- it's not an anti-union case," CIR President Terry Pell told TPM.

Nine other teachers are named with Friedrichs in the case. “We had more clients than we knew what to do with,” Pell boasted of the efforts to find plaintiffs.

Also joining in the case is Christian Educators Association International, which promotes itself as an alternative to public teachers unions for Christian teachers with conservative views. Its mission is “To Encourage, Equip, and Empower Educators according to Biblical Principles.” Its director, Finn Laursen, has called for a “Biblical Injection” in public schools and has denounced efforts to make schools more inclusive for transgender students.

“There’s no particular religious angle” with CAEI’s involvement, according to Pell. Rather, the organization become involved after CIR reach out to it looking for possible clients, as CAEI offers liability insurance to teachers who refuse to pay full union membership and thus cannot get insurance through the union.

(CEAI as well as the lawyers at Jones Day directed TPM's interview requests to Pell.)

Friedrichs is challenging California’s agency fee policy on First Amendment grounds. Her argument is that all collective bargaining is inherently political, since the policies won in public union negotiations with the government -- higher salaries, benefits plans, etc. -- affect public policies, and specifically taxpayers.

In an interview with Reason, she said, “Their supposed benefits are not worth the moral costs.”

Friedrichs has also cited school voucher programs -- an issue the Koch-donor network has waded into -- as a point of contention between her and unions, which generally oppose them. (It's worth noting however, that agency fees from non-members cannot fund any of unions' political lobbying but only the costs germane to negotiating worker benefits with employers.)

Those supporting the unions in the case see the case as a much broader attempt to weaken public employee unions, whose members make up about half of total union membership as a whole as private unions continue to decline.

“When you look at sort of corporate interests and big business in the Roberts Court, one of the areas in which they’ve been successful is using the First Amendment to protect corporate interests that in some ways make it harder for the little guy to make his voice heard,” said Elizabeth Wydra -- the chief counsel for the Constitutional Accountability Center, a liberal legal advocacy group --who filed a brief supporting the union in the case. She pointed specifically to Citizens United v. Federal Election Commission, which demolished campaign finance regulations on First Amendment grounds.

Pell said his group was aware of the "the general free speech issue" before a 2012 Supreme Court decision in which Justice Samuel Alito's used the term "anomaly" to describe the 40-year-old precedent for public union agency fees established in the Supreme Court decision Abood v. Detroit Board of Education -- the precedent challengers are now asking for the court to overturn. But he knowledge that the opinion "made it easier and more timely to bring that challenge now than some in point in the future."

The challengers got further encouragement from Alito in a 2014 decision dealing with agency fees for health care workers, where he said Abood was "questionable on several grounds."

With Alito's language, the challengers were able to fast-track the case through lower courts.

"I can't really blame them for taking cues from certain justices to get a cause they want to the court," Wydra said. "But I would note that they didn’t have enough votes to strike down Abood last time, so I don't think they should be counting their chickens before they hatch."

Just in case, the challengers have also presented another route for the court, offering the justices the alternative of striking down the practice of requiring non-members to opt out of paying full membership every year and instead allowing them to decline paying the full dues only once.

Asked about accusations that the case would severely cripple unions’ operating abilities, Pell dismissed the idea that it would dismantle the California union, pointing to the fact that the union is popular among teachers there, and according to him, only 10 percent of teachers have opted out of the full membership. However, he acknowledged that a ruling in their favor could pose a major problems for unions elsewhere.

“There are other unions in other parts of the country that are not serving their members particularly well and those unions may have a difficult time competing for members and dues,” he said.

Part of the irony of the case, supporters of the unions note, is that by way of political process states can already eliminate agency fees on their own -- passing "right to work" laws. Ballot initiatives to make California “right to work” have failed.

“The remarkable thing about this case is that a state doesn’t have to permit fair share fees, and what the plaintiffs are saying is even if the state is opting into that system we want to stop it," Andrew Pincus -- a lawyer who has argued in front of the Supreme Court before and who filed an amicus brief supportive of the unions in this case -- told TPM.

About The Author

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Tierney Sneed is a reporter for Talking Points Memo. She previously worked for U.S. News and World Report. She grew up in Florida and attended Georgetown University.