Trump Pick for Supreme Court Could Devastate California Teachers Association

November 20, 2016 By Chris Reed 18 Comments

Rebecca FriedrichsWhile it may not be immediately apparent, Donald Trump’s victory in last week’s presidential election has deep implications for the balance of political power in California. Because of his win, there could soon be a fifth vote on the U. S. Supreme Court – again – to conclude that teachers at California public schools can’t be compelled to pay union dues to the California Teachers Association in support of political activities with which they disagree.

These dues have made the CTA arguably the most powerful force in state politics, able to win passage of bills increasing taxpayer funding for the state teachers’ pension system, protecting teachers’ jobs and making it difficult for their performance to be evaluated. A Fair Political Practices Commission report found that the CTA and affiliated entitiesspent $212 million to influence state politics from 2000-2009. Dues vary but are generally around $1,000 a year for the CTA’s 325,000 members.

At a January hearing in the Friedrichs v. CTA case, five justices – conservatives Antonin Scalia, John Roberts, Clarence Thomas and Samuel Alito and libertarian swing voter Anthony Kennedy – appeared poised to allow teachers to opt out of CTA dues.

But in February, Scalia died. In March, the court deadlocked 4-4 on the case, and in June, it declined to hear the case again in the term that began in October.

Trump has promised to appoint a justice with Scalia-like views as his replacement. That presumably would mean five votes to put limits on what public employee union dues could be used for.

Are dues solely used for collective bargaining or not?

The case was brought in 2013 by the libertarian-leaning Center for Individual Rights on behalf of Rebecca Friedrichs, an Orange County schoolteacher (pictured above), and other teachers who object to the CTA’s agenda and reject the claim that their dues were being used for “collective bargaining” purposes only.

The center is expected to start the ball rolling again for a new federal trial, and eventual Supreme Court review, in coming months. It’s not clear whether Friedrichs will again be the plaintiff, but there’s a broad assumption that the CTA — labelled “the worst union in America” by conservative publication City Journal — will again be the target.

As California Lawyer magazine detailed last year, conservative federal judges — not just those on the Supreme Court — seem eager to expedite the challenge to union members’ objections to political uses of their dues. Both trial court and appellate judges went along with plaintiffs’ request that the Friedrichs case be rejected based on precedent — specifically, Abood v. Detroit Board of Education, a 1977 Supreme Court ruling upholding compulsory union dues. This request was made to get the case before the high court as soon as possible.

There is little doubt that several justices are eager to scrap the precedent.

At the January hearing on the Friedrichs case, Kennedy ridiculed the argument that compelling teachers to pay union dues that were used to advocate political views they didn’t share was no big deal because those teachers could advocate for their views in other ways.

The contention that upholding Friedrichs’ challenge would destroy public employee unions also was subject to sharp challenge by justices who noted that federal employees’ unions didn’t charge “agency fees” but were able to effectively bargain on pay and benefits.

The four justices who voted to reject the Friedrichs case and side with the CTA criticized what they saw as an unseemly eagerness to reject long-held precedent. They noted that the Abood case’s finding had been challenged repeatedly over the last four decades and had only faced high court doubts in recent years.

This piece was originally published by CalWatchdog.com

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Supreme Court Justices Are About To Tip The Scales In California Politics

January 20, 2016 By Susan Shelley 3 Comments
Photo courtesy Envios, flickr

Photo courtesy Envios, flickr

California politics could be shaken up this spring when the U.S. Supreme Court hands down its decisions in two potentially landmark cases.

The framers of the U.S. Constitution thought they were keeping the judiciary out of politics, but it hasn’t worked out that way. Today the Supreme Court exercises so much power over our lives that if one of the justices mentions retirement, half the country experiences chest pains. And the stress is not unwarranted: Policies that were created by judges can be reversed by judges.

Right now the Supreme Court is considering whether to change the rules that control state redistricting, and whether to abolish mandatory union dues for public employees. The impact of the two decisions could make California’s predictable elections a lot less predictable.

In the redistricting case, Evenwel v. Abbott, the issue is whether Texas should be allowed — perhaps even required — to draw its legislative district boundaries based on eligible voters instead of total population.

For example, an Assembly district might have a population of half a million people but far fewer citizens who are eligible to vote. The court’s ruling could result in the district’s boundaries being redrawn to take in new geographical areas with more citizens and fewer immigrants. The decision could scramble the political map in Texas and potentially in other states with a high proportion of non-citizens, including California.

Until the mid-20th century, the federal courts stayed out of state redistricting. That changed when Chief Justice Earl Warren decided to get involved.

As governor of California in the 1940s, Warren had opposed a plan to draw district lines based on population instead of geographical area. At the time, rural Senate districts with fewer voters had the same political power as urban districts jammed with voters. The votes of city residents were, in a sense, unequal to the votes of rural residents. Los Angeles was outvoted on everything.

As chief justice, Warren had second thoughts about the fairness of that arrangement. In two landmark decisions, Baker v. Carr and Reynolds v. Sims, the court imposed a “one person, one vote” standard that required voting districts to have roughly equal populations.

But the Evenwel case could be a new landmark.

The second case that could shake up California politics, Friedrichs v. California Teachers Association, may determine whether public employees have the right to refuse to pay union dues. Ten California teachers are suing the CTA over the automatic deduction from their paychecks of “agency fees,” or what unions call “fair share fees.”

Public employee unions have had the power to collect fees from non-members ever since the Supreme Court ruled in a 1977 case, Abood v. Detroit Board of Education, that mandatory dues were legal as long as no one was forced to pay for a union’s political activities. But the teachers argue that everything the union does is a political activity, because it negotiates with government officials for salaries and benefits paid from tax dollars.

If the court rules against the union, the continuous stream of cash that has flowed from teachers’ paychecks to the California Teachers Association could slow to a trickle. That may limit the CTA’s campaign spending, which for decades has flooded the political landscape to elect union-friendly lawmakers. Other public employee unions could find themselves in the same boat.

The Supreme Court’s decisions could unsettle California politics virtually overnight.

We’ve had some low-turnout elections, but this must be some kind of record. Thirty-eight million people live in California and its future may be decided by nine voters.

 

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The Case That Could End Forced Union Dues

January 11, 2016 By Connor D. Wolf 3 Comments

http://www.dreamstime.com/-image1661658The U.S. Supreme Court will hear from 10 teachers Monday in a case that could upend decades of labor law by granting public-sector workers the right refuse to pay union dues.

Generations of lawmakers and legal experts have struggled with the question of whether unions can require mandatory payments. The Supreme Court ruled in the 1977 case Abood v. Detroit Board of Education that unions can collect dues so long as the mandatory payments are used solely on representation costs and not political activities. Workers are allowed to pay fees instead of full dues if they don’t want to fund the political activities of the union.

Rebecca Friedrichs and the nine other teachers, however, don’t want to make any payments to the California Teachers Association (CTA). They also assert the process to opt-out of paying full dues or partial fees should be an opt-in system instead. The Supreme Court agreed Jun. 30 to hear their case. Here are the nine most important facts about Friedrichs v. California Teachers Association.

1. Free-Riders Or Captive Passengers

The question before the court is whether the teachers have the right to disassociate from their union. To the teachers and their supporters, the case could mean the end of laws that restrict worker freedom. To opponents, though, unions are what give workers a voice and limiting their power will adversely impact their ability to fairly communicate and negotiate with their employers.

The teachers have argued mandatory union payments violate their constitutional right to free-speech. They said the union often engages in activities or takes a position they neither support nor wish to fund. The union disputes the argument by noting they are legally compelled to represent the teachers regardless of whether they pay dues. Therefore its only fair all workers should have to pitch into the cost of representation.

“The court also has implemented various procedural requirements to ensure that unions are properly reimbursed for chargeable costs,” the union stated in its brief to the court. “While protecting objecting non-members from having their funds used for purposes not germane to collective bargaining and contract administration.”

When a union gets voted in as the exclusive representative for a workplace, they are required by law to collectively bargain for all the workers. Unions often warn workers could just free-ride on those benefits were dues an option.

“The free-rider argument is bad for several reasons,” Jacob Huebert, senior attorney at the Liberty Justice Center, told The Daily Caller News Foundation. “These people don’t consider the union to be a benefit.”

The teachers are allowed to leave their union but are still required to pay the representation fees. If they leave, they lose their liability services and the ability to talk at union meetings.

2. Who Exactly Is Rebecca Friedrichs

It all started when Friedrichs, while teaching out of Buena Park, Calif., tried to leave her union. She felt it benefited its members at the expense of the students. Though she could leave and forfeit most union benefits, she was still forced to continue paying dues. She and a group of other teachers were left with no choice but to file a lawsuit in April of 2013.

“Many of the things the union bargained for made it harder for me,” Friedrichs recalled Thursday during a phone interview with reporters. “To the union, salary and seniority came before everything else.”

Her first encounter with the union culture was when she was an assistant teacher at the beginning of her career. At the time, she said she felt as though the teacher who worked in the classroom next to hers was abusive towards her students. The teacher, she said, couldn’t be fired because the union had implemented a seniority structure. Friedrichs eventually took a leadership position in the union but was still unable to change what she saw as a bad culture.

“I wanted to be there to speak common sense,” Friedrichs said. “But the response from union leadership was to ignore everything I tried to do.”

3. The Case Goes Far Beyond Just Teachers

A decision in favor of the teachers is likely to go beyond just schools. All government workers could be granted the right to stop funding union activities since the teachers are technically public-sector employees. Such a decision could be devastating to the labor movement which has already lost a lot of members in the private-sector.

“It’s an extremely important case,” Huebert said. “It certainly might be a landmark case, especially if they side with Friedrichs.”

Huebert adds the case should only impact public-sector workers and not private. The Supreme Court will decide on a wide variety of issues this session, from how sentencing hearings are conducted to whether colleges admission offices should consider race. NYU Law Professor Richard Epstein, though, says the Friedrichs case could very well be the most important.

“This is a case that attracted scrutiny on both sides,” Epstein told TheDCNF. “In some ways this is the most important case this session.”

The case seeks to reverse the decision in Abood, which has allowed public-sector unions to require mandatory payments for nearly three decades. Abood also dealt with teachers, but the decision set a precedent that impacted all public-sector employees.

4. Are Public Sector Unions Done For? Probably Not.

Unions have argued on numerous occasions the case is aimed at destroying the labor movement. Membership is likely to go down, but many workers are still likely to stay unionized. Former Supreme Court Clerk Carrie Severino notes the case will not take down public-sector unions.

“It’s not a victory that will take down the unions,” Severino, now chief counsel for Judicial Crisis Network, told TheDCNF. “It just gives people the right to choose.”

Federal employees already have the right to not fund unions, yet membership is still fairly high. In states that have passed right-to-work legislation, all workers are allowed the same privilege, yet it hasn’t destroyed the unions. The policy, which has passed in 25 states, outlaws mandatory union dues or fees as a condition of employment. Terry Pell, a lawyer representing the teachers, predicts the membership drop will be slight.

“A 10 percent drop in members won’t impact their ability to bargain,” Pell said during a Thursday call with reporters. “The 25 states show that.”

Pell said the biggest difference once right-to-work is passed is that the salaries of union leaders go down.

5. The Beneficial Burden Of Collective Bargaining

Collective bargaining is the burden put on unions when they become the exclusive representative for a workplace. It means they are required by law to benefit all the workers they represent. Collective bargaining already comes with a huge benefit often overlooked during the free-rider debate.

“When you have a union whose already in power to be the monopoly bargainer,” Severino said. “That’s already a huge benefit to unions.”

The Heritage Foundation notes in a fact sheet that the union claim is very misleading. Exclusive representation is not the only way a union can organize workers. Unions can choose to only represent dues paying workers by becoming a member-only organization. A member-only union, though, would not have monopoly rights and therefore other unions could try to organize the same workplace. It’s an option they tend to avoid.

6. Recent Cases Give Union Critics Hope

Supporters are optimistic the court will side with Friedrichs given recent decisions. In the 2015 case Harris v. Quinn, the court ruled Illinois state home healthcare workers could not be forced to pay union dues. The decision found a middle ground by only applying to the workers upon whom the case was centered.

The court was faced with the question of whether home healthcare providers were public-sector employees. State healthcare workers are required to fund the union which represents them. The Friedrichs case has a much broader scope. Teachers are already considered public employees, therefore a decision in their favor is much more likely to impact all government workers.

“The middle ground is essentially accepting the opt-in argument,” Epstein stated. “That’s why this case is so much more important than Harris.”

7. The Powerful Groups Behind The Case

The Center for Individual Rights (CIR) is a non-profit public interest firm representing Friedrichs and the other teachers involved in the case. Pell said they looked for teachers that were willing to join onto a lawsuit. For a case to be considered by the courts, the plaintiffs must have standing by proving in some way they have suffered damages.

“We were pleasantly surprised when there were so many teachers focused on this,” Pell said. “It came together much more quickly than other cases.”

Pell added that the response showed them many teachers were discontent with their union. The case has also attracted a lot of attention from outside groups and lawmakers. The National Right to Work Legal Defense Foundation, the Mackinac Center for Public Policy, the Cato Institute and the Goldwater Institute have all filed legal briefs in support of the teachers. The organizations are primarily conservative and libertarian leaning. Labor unions have condemned the lawsuit as being nothing more than a coordinated attack by the right.

Nevertheless Labor unions are some of the most powerful political entities and fighting them is not an easy task. The AFL-CIO, AFSCME and the Service Employees International Union among others have banned together against the teachers. Even local unions have spoken out about the case. Some of the most influential unions have also submitted legal briefs urging the justices to rule against the teachers.

8. Workers Would Still Be Able To Unionize

Union leaders have claimed the case is an attack on the rights of workers to collectively come together. The teachers in the case, though, counter the argument by noting its actually about giving workers a choice.

“The main thing you need to know is that this is an attack on working people’s freedom to come together and form unions, plain and simple,” the AFL-CIO noted. “These are the nurses who make sure their patients have what they need to get well and the teachers who advocate for their students and class sizes.”

The case does not seek to prevent workers from organizing despite the union claim. A decision in favor of the teachers would be very unlikely to outlaw the right to unionize. Instead it would simply mean public-sector employees would have the right not to participate or fund their workplace union if they so choose.

“This case does not impact public employees and their right to join a union,” Pell added. “It impacts a union funding mechanism.”

Friedrichs notes unions would be compelled to do what’s best of their members if workers were free to leave.

9. How An Opt-In System Might Impact Unionization

CTA states the opt-out system is legal and fair. It allows workers the right to refrain from funding union political activities. If a worker doesn’t want their dues going to politics they can simply sign a form and mail it to the union. The teachers included as a secondary point to their lawsuit that an opt-in system would be fairer. Essentially public-sector workers would have to request to join a union instead of getting automatically enrolled.

“The right to opt out sufficiently protects both First Amendment guarantees and other core constitutional rights,” CTA noted in its brief to the court. “There is no justification for carving out a special exception based solely on petitioners’ animus toward statutorily recognized union activities.”

Critics contest opting out is not always easy for workers. Rules regarding membership are not the same in every union. Most unions only allow members to leave at certain points in the year. These opt-out windows are often not disclosed to members. Unions have also been known to ignore opt-out requests.

“They often don’t have good information on how to opt-out,” Huebert added. “And its often a difficult process.”

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This piece was originally published by the Daily Caller News Foundation

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Free Speech Rights on the Line as SCOTUS Hears Friedrichs Case

January 7, 2016 By Ed Ring 2 Comments

Rebecca FriedrichsIn less than one week the U.S. Supreme Court will begin to hear arguments in the case Friedrichs v. California Teachers Association, to determine whether unions can force public employees to fund speech through collective bargaining with which they might disagree. The case could result in a landmark decision impacting the First Amendment rights of millions of public sector workers nationwide. The California Policy Center joins hundreds of other organizations and millions of individual activists in urging the Supreme Court to rule in favor of the plaintiffs.

If the justices rule in favor of Friedrichs, the decision would not only take away government union’s ability to get public employees who do not pay them fired in the half of the states – most definitely including California – which do not have right-to-work, but would allow public workers to opt out of their union without needing to renew their objection every year. Here in California, the decision, which is expected in June 2016, would impact well over 1 million state and local public employees who are currently unionized.

The Friedrichs case rests on the argument that anything and everything that public employee unions negotiate is inherently political. We couldn’t agree more. To state an obvious example, negotiations between unions and elected officials over public employee pensions and pay are arguments over how elected officials should use public money – an inherently political question. Conceding to demands for higher salaries during an economic downturn – or at any time, for that matter – is a political choice. When public employees make more, either other services are cut, or taxes are increased. These are political decisions, not mere employer/employee issues.

While how public agencies spend taxpayers’ money is obviously a matter of public policy, the work rules negotiated by government unions also are inherently political. Union negotiated rules governing California’s system of public education provide examples of this in the form of “lifetime tenure” – awarded after less than two years in the classroom, dismissal procedures that make it nearly impossible to fire incompetent teachers, and “last in first out” layoff policies that reward seniority over merit. Conscientious teachers can be forgiven for believing these union rules, among others, are public policy decisions, inherently political, that have harmed California’s children. Yet they are forced to pay to support the unions who negotiated these rules.

The Friedrichs case, despite an avalanche of well-funded propaganda from unions, is not about whether or not unions even belong in the public sector. The point of the Friedrichs case, again, is that everything that public sector unions negotiate for is inherently political. And because they are inherently political, public employees should not be forced to fund these unions if they don’t want to, because that is a violation of their First Amendment free speech rights. You don’t have to restrict the scope of your argument to the explicitly political activities of government unions to make this case. Because everything government unions do, everything they fight for, affects government policy.

As a result, members of government unions should not be merely permitted to opt-out of the acknowledged “political” portion of their union dues, the amounts spent on political campaigns and lobbyists. They should be allowed to opt-0ut of paying all of it, including the so-called “agency fee.” And because these unions have made the “opt-out” process a difficult bureaucratic ordeal, where members can only opt-out during a certain limited time each year, and have to do that over and over again, year after year, paying union dues should instead depend on an “opt-in” process. This would mean the government unions themselves would have to obtain affirmative consent, year after year, in order to continue to collect dues from government workers.

Government unions are not just inherently political in everything they do. Their agenda is inherently in conflict with the public interest. Unlike private unions, government unions elect their own bosses. Unlike private unions, government unions can demand pay and benefits without having nearly the same concerns about how that may impact the financial health of their organization. And unlike private unions, government unions run the government bureaucracy, which means they can more easily intimidate their opponents. For these reasons, perhaps the Friedrichs case doesn’t go far enough. But it’s a very good start.

*   *   *

Ed Ring is the executive director of the California Policy Center.

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Collective Bargaining Fails Students, Competent Teachers and Taxpayers

November 26, 2015 By Larry Sand 4 Comments

Ashs-teacher-and-studentsA new study reveals that collective bargaining for teachers has a negative effect on future earnings, occupational skill levels and hours worked. Writing in Education Next, researchers Michael Lovenheim and Alexander Willen dissect the long-term ramifications of states that mandate collective bargaining for teachers. While they find no clear effects of collective bargaining laws on how much schooling students ultimately complete, their results do show that laws requiring school districts to engage in the process with teachers unions lead students to be less successful in later life. “Students who spent all 12 years of grade school in a state with a duty-to-bargain law earned an average of $795 less per year and worked half an hour less per week as adults than students who were not exposed to collective-bargaining laws. They are 0.9 percentage points less likely to be employed and 0.8 percentage points less likely to be in the labor force. And those with jobs tend to work in lower-skilled occupations.”

The researchers did a meticulous job adjusting, when necessary, for ethnicity and gender. They also took into account school finance reforms and changes in the generosity of state earned-income tax credits. But taking all the variables into account made little difference in the results, and indeed strengthened their confidence that collective bargaining is responsible for the effects they document.

This is not the first study that found collective bargaining agreements (CBAs) to be detrimental to students. In 2007, Stanford professor Terry Moe reported that collective bargaining “appears to have a strongly negative impact in the larger districts, but it appears to have no effect in smaller districts (except possibly for African American students—which is important indeed if true).”

Frederick Hess, of the American Enterprise Institute, and Martin West from the Brookings Institute point out that CBAs “are vestiges of the industrial economic model that prevailed in the 1950s, when assembly-line workers and low-level managers were valued less for their knowledge or technical skills than for their longevity and willingness to serve loyally as a cog-in-a-top-down enterprise. Collective bargaining contracts are especially problematic on three fronts: 1) they restrict efforts to use compensation as a tool to recruit, reward and retain the most essential and effective teachers, 2) they impede attempts to assign or remove teachers on the basis of fit or performance and 3) they over-regulate school life with work rules that stifle creative problem solving without demonstrably improving teachers’ ability to serve students.”

In this brief video, Stanford researcher Caroline Hoxby details in practical terms how CBAs stifle any management flexibility in determining the best slot for a teacher at a given school as well as denying them the opportunity to get rid of the underperformers – rigidity being the hallmark of CBAs.

So if CBAs don’t do much for students, they surely must benefit teachers, right? Well, no, and they especially penalize the good ones. Low pay, excessive bureaucracy and ineffective colleagues are all attributable to CBAs and anathema to great teachers and high-performing schools. And we lose thousands of our best educators as a result.

“Wage compression” occurs when the salaries of lower paid teachers are raised above the market rate, with the increase offset by reducing pay of the most productive ones. “Why strive to become better if I am not going to be compensated for it?” is the attitude of many. Mike Petrilli of the Fordham Institute takes it one step further, claiming CBAs hurt the bottom line of all teachers. He compared teachers’ salaries in districts across the country which allow collective bargaining with those that don’t. He found that teachers who worked in districts where the union was not involved actually made more money than those who were in collective bargaining districts. According to Petrilli, “Teachers in non-collective bargaining districts actually earn more than their union-protected peers – $64,500 on average versus $57,500.”

CBAs don’t do much for taxpayers either. Professor Joe A. Stone of the University of Oregon writes, “In an average California school district, 85 percent of the district’s operating budget is tied to collective bargaining contracts, for both certificated and classified personnel.” (Over 55 percent of California’s general fund expenditures – over $63,000,000,000 – is targeted for education.)

University of Arkansas professor Jay Greene sums it up quite succinctly. “Until the ability of teachers unions to engage in collective bargaining is restrained, we should expect unions to continue to use it to advance the interests of their adult members over those of children, their families and taxpayers.”

One final note: Union leaders and their fellow travelers love to spread the myth of the “right” to collectively bargain. In fact, New York Attorney General Eric Schneiderman recently announced that he is leading a coalition of 20 states and the District of Columbia in filing a friend-of-the-court brief urging the U.S. Supreme Court to deny Friedrichs and maintain forced dues payment for public employees. In a press release, Public Advocate Letitia James said, “Collective bargaining is a fundamental right. I join Attorney General Schneiderman in supporting this right, and standing up for collective bargaining.”

But there is no “right” to collectively bargain. David Denholm, president of the Public Service Research Foundation, writes that the “right” is non-existent. He writes, “Collective bargaining is a legislated privilege given to unions by friendly lawmakers.” (“Friendly” in this case, of course, means those put in office by the people sitting across from them at the negotiating table.)

CBAs are wrong for kids, wrong for good teachers and wrong for taxpayers. But they sure work well for union bosses, many of whom make fat salaries that most teachers are forced to pay for the “right” to be exclusively represented by them. Some bargain.

Larry Sand, a former classroom teacher, is the president of the non-profit California Teachers Empowerment Network – a non-partisan, non-political group dedicated to providing teachers and the general public with reliable and balanced information about professional affiliations and positions on educational issues. The views presented here are strictly his own.

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Supreme Court Case That Could Topple Teachers Unions

October 10, 2015 By James Poulos 7 Comments

Rebecca FriedrichsFaced with the greatest legal challenge to their core source of revenue, California unions have braced for defeat and scrambled for alternatives.

Some time after its new term begins this month, the Supreme Court will hear arguments in Friedrichs v. California Teachers Association, which challenges the union’s collection of mandatory fees from members. The case’s stakes have been raised as high as possible by plaintiffs’ supporters. “We are seeking the end of compulsory union dues across the nation,” said Terry Pell, president of the Center for Individual Rights, according to the Sacramento Bee.

“Since 1997, the Supreme Court has held that requiring non-union members to pay the cost of collective bargaining prevents ‘free riders,’ meaning workers who get the benefits of a union contract without paying for it,” as NBC News noted. “But in subsequent rulings, several of the court’s conservatives have suggested that the decision should be overruled.” Legal analysts suggested the track record implies a victory for California’s plaintiffs. Erin Murphy, a federal appeals lawyer, told NBC News she “would not feel very good about my prospects if I were the unions.”

Crisis mode

At the end of the Legislature’s final session, pro-union Democrats attempted an unusual “gut and amend” maneuver, wherein a bill’s contents are wiped out and completely replaced without revisiting the standard hearing process. The new language would have required one-on-one, union-sponsored “public employee orientation” for existing and new employees. The content of the orientation “would be the sole domain of the union and not open to negotiation,” with employees “required to attend in person during work hours. Taxpayers would pick up the tab,” the Heartland Institute added in a critical summary.

Although the effort failed, it was a notable reflection of state unions’ concern that they can’t rely on the Supreme Court to protect their current practices. “Public employee unions haven’t had mandated orientations because they don’t need them,” U-T San Diego’s Steven Greenhut observed, calling the last-minute gut and amend a “pre-emptive strike” on the court’s hearing of Friedrichs. “Newly hired workers must already pay dues to the recognized union.”

Not all union supporters have framed the impending decision as a crisis, however. “Even some pro-union voices have argued the Friedrichs case doesn’t portend the end of the world for public-sector unions, in that it might force them to become more responsive and democratic,” Greenhut suggested.

But the court’s decision is likely to hinge on more fundamental questions pertaining to the very definition of a union.

What’s a union?

One element of the problem has been that unions fear members just won’t pay dues if they can get away with it — the so-called “free rider” problem, familiar from the idea that many fewer Americans would pay taxes were they merely voluntary. “No one knows how many would, with annual dues in the CTA, for example, often topping $1,000,” according to the Los Angeles Daily News. “That makes this a life-and-death case for the unions,” which fear the political power of their main adversaries — certain large corporations and high-net-worth individuals — would go undiminished. It would be very difficult, in other words, for the court to successfully separate the question of unions’ political power from the question of their existence.

That has led analysts to focus on a second aspect of the problem of what a union really is. One Justice, Antonin Scalia, has indicated in the past that the existence of unions within the American system of law depends on their ability to generalize the burdens of keeping them running. “In a 1991 case, he wrote that because public sector unions have a legal duty to represent all employees, it’s reasonable to expect all workers to share the costs,” the Daily News noted.

For that reason, the question of what counts as political expenditures would likely come to the fore before the court. But the plaintiffs in Friedrichs have anticipated the controversy, because they see it as the foundation of their entire case. “All union fees, they argue, are in some way used for political activities and since they don’t always agree with the union’s stance, having to pay any fees is an infringement on their first amendment rights,” the Guardian reported.

Originally published by CalWatchdog.com

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