Los Angeles — Since 2008, we’ve seen the biggest economic crisis since the Great Depression. Unlike 75 years ago, however, unions and the Left have this time largely failed to build a rigorous movement of economic populism to further their goals: Witness the now largely disbanded Occupy movement. Indeed, as members of the American Federation of State, County and Municipal Employees gathered here last week, the mood was pessimistic.
“Our success or failure will mark a turning point not only for our union but for the entire labor movement,” Lee Saunders, the new AFSCME president, told his members. Attendees noted how few changes in labor law they had been able to get through Congress since President Obama’s election. Union members in San Diego and San Jose, two cities that voted heavily for Obama in 2008, mourned the overwhelming passage this month of ballot measures in those cities curbing public-sector pension benefits: In both, two-thirds of voters approved the measures. Hanging over the crowd was the crushing loss unions experienced in Wisconsin three weeks ago, when GOP governor Scott Walker won 38 percent of the votes of union members and apparently carried a majority of private-sector-union members.
But even as AFSCME delegates convened in Los Angeles, they received word of yet another blow. The U.S. Supreme Court ruled in a case out of California that if a union wants to make a special demand from members for political activity in addition to its regular fees, it must give them ample notice so they can ask for their money back. But the court, in an opinion by Justice Samuel Alito, went further and indicated the union must also make its fee assessment opt-in instead of opt-out. That means the union would get no money unless workers affirmatively agreed to pay it, instead of the workers’ getting to keep their money only if they specifically asked for it back.
“This decision went much further than it needed to,” says James Young of the National Right to Work Legal Foundation. “It signals the court’s willingness to reconsider other long-standing issues in labor law.”
Many experts on the left agree. “The Court’s Scott Walker Moment” was the headline on an article by legal scholar Garrett Epps in The American Prospect. “Language in the opinion suggests the majority thinks the whole idea of agency fees is a violation of the First Amendment,” he wrote. He pointed out that Justice Alito’s opinion ominously noted the following: “Our cases to date have tolerated this ‘impingement’ (on the First Amendment), and we do not revisit today whether the Court’s former cases have given adequate recognition to the critical First Amendment rights at stake.” The court stated its belief that “the general rule — individuals should not be compelled to subsidize private groups or private speech — should prevail.” Epps interprets all this to mean that the court is sending a clear message to Young and the National Right to Work organization: “Bring us a case and we will void the agency shop altogether.”
The impact of such a move would be monumental. Many states allow public-sector unions to set up “agency shops” that require all employees to either belong to a union or pay fees even if they refuse to join the union. The fees of non-members are supposed to cover only the costs of union services such as collective bargaining and grievance representation, making certain that non-members do not see their money spent on politics. But in reality, unions frequently grossly inflate the costs of their legitimate non-political services to members, and spend non-member money on political contributions and activity.
When workers get to decide ahead of time whether they will pay union dues or agency fees, rather than have to demand that they be refunded, the difference is dramatic. After Governor Walker ended mandatory collection of union dues for public-sector workers last year, AFSCME’s Local 24 in Madison, which represented 22,300 Wisconsin state workers, saw its membership shrink by two-thirds, to 7,100. Similarly, the American Federation of Teachers has lost 6,000 of its 17,000 members. Small wonder: Teachers’-union dues in Wisconsin range from a hefty $700 a year up to more than $1,000.
That kind of shift explains why the unions fought Walker’s reforms so bitterly — they viewed it as a matter of life and death for their political machines. Similarly, you can expect a titanic battle this November in California, where a ballot measure going by the title of Stop Special Interest Money Now has qualified for the ballot. It would prohibit both corporations and unions from collecting political contributions from employees through payroll deduction unless annual written consent is given. The measure is similar to one put forward by Governor Pete Wilson in 1998 and another that was sponsored by Governor Arnold Schwarzenegger in 2005. Both lost by only 53 percent to 47 percent, after being vastly outspent by union opponents.
This time, key initiative supporter Frank Baxter, a retired banker, says he expects a much more level playing field. “The fiscal situation in California, voter anger at excessive pensions, and the Wisconsin example will mean we will have enough money to get our message out. I’m optimistic.”
No wonder the mood was so gloomy at the AFSCME conclave in Los Angeles this month. After 50 years of unchecked growth of the public-sector unions, the political abuse of the system and a resulting voter revolt is now threatening to catch up with them.
— John Fund is national-affairs columnist for NRO.