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Law & the Courts

More on USCCB Amicus Brief in Public-Sector Union Dues Case

Two weeks ago, I criticized the USCCB’s amicus brief in Janus v. AFSCME on three grounds: First, it does not actually make a legal argument but instead is nothing more than special pleading on behalf of the supposed position of “so many bishops.” Second, it does not remotely support its claim that the American bishops have “widely held” the position that right-to-work laws in the public sector are unjust to government workers. Third, it invites the dangerous misperception that the bishops consider right-to-work laws in the public sector to violate Catholic social teaching as severely as laws imposing abortion and same-sex marriage do.

Last week, I highlighted Bishop Thomas John Paprocki’s forceful repudiation of the USCCB brief, and I separately responded to a critique of my post by the National Catholic Reporter’s Michael Sean Winters. Without engaging my responses, Winters has launched another critique in which he contends that I “seem[] to mistake both Catholic social doctrine and the facts of the case.” Alas, his critique is rife with errors from top to bottom.

In fairness to Winters, let me note at the outset that the two posts of mine that I link to in the preceding paragraph temporarily disappeared during NRO’s transition to a new blogging platform. So even though I had tweeted my responses to him when I first posted them, I can understand that he didn’t have them at hand when he wrote his latest and thus wasn’t in much of a position to engage my arguments. That said, I find it very odd that he didn’t contact me directly to obtain the posts. Instead, he “called over to National Review and asked why the post was taken down, but no one called me back”—and then he went ahead and wrote a critique that he knew did not engage the responses I had already made.

I’ll highlight here six large errors in Winters’s critique:

1. Contending that “Whelan seems unclear about the facts in this case,” Winters asserts that the agency fee that Mark Janus is required to pay to his public-sector union “represents his share of the costs of negotiating a contract and enforcing it, nothing more or less.” Winters seems to imagine that I think that Janus is complaining only about the political donations that his union makes. (Never mind that he doesn’t even try to quote a passage of mine that reflects such a misconception.) He further contends that the fungibility of money isn’t an issue in this case because Janus’s fee is just his share of the total amount that his union spends on “representation of the workers” and does not include the costs of the union’s political activities.

Winters is flat wrong on the fungibility point. Evidently he doesn’t realize that the union’s total expenditures on representation of employees include allocated amounts of the union’s joint and common costs of all of its operations. (See Note 3 at the end of this SEIU notice for an illustration: chargeable expenses “are allocated … based on … the allocation of personnel costs which have been determined through a time study.”) In other words, the costs of various union employees are divided between their chargeable representation work and their non-chargeable political work. Janus is thus paying part of the salaries of various union employees who engage in political activities. If he weren’t, the union would have to come up with other funds to pay their salaries. In sum, money is fungible, and Janus is being forced to subsidize political activities he objects to. (USCCB’s brief thus undercuts its fungibility argument against funding of Planned Parenthood.)

More broadly, Winters’s fairy-tale account of how the agency fee is determined ignores that the union has broad leeway to classify contestable expenditures as representational and that it is nearly impossible for an employee to obtain effective review of the union’s classifications. As the amicus brief submitted by the Competitive Enterprise Institute documents, Janus has been compelled to “associate with and subsidize political and ideological advocacy on a host of topics, many of them quite surprising” to those unfamiliar with union ways:

The labor union at issue in this case, an affiliate of the American Federation of State, County and Municipal Employees (“AFSCME”), has in the past year used agency fees to pay for advocacy on such issues as: right-to-work statutes, infrastructure spending, government privatization and contracting, the minimum wage, voter-identification laws, tax policy, immigration reform and enforcement, gun control, D.C. statehood, marijuana legalization, “racial justice,” and Supreme Court nominations, among many others. It has spent agency fees to conduct an “AFSCME FOR HILLARY” rally at its annual convention, to instruct members on political organizing and voter registration, and to organize and carry out a “direct action” against a hotel affiliated with then-candidate Donald Trump. [CEI brief at pp. 2-3; see also more extensive details and citations at pp. 5-10.]

Does Winters really not understand this everyday reality?

Winters’s fairy tale also ignores Janus’s broader argument that for public-sector unions the line between bargaining and political speech is an imaginary one.

2. Winters repeats his charge that I improperly failed to treat statements of staff bureaucrats as the positions of American bishops. I’ll restate my response: I recognize that the bishops have (unwisely, in my judgment) often delegated to unsupervised or poorly supervised staffers the authority to speak on their behalf. But I don’t accept the often highly implausible fiction that statements made by those staffers in fact reflect the considered positions of the bishops. Bishop Paprocki’s statement shows that I am right to reject this fiction.

3. Winters contends that the USCCB didn’t “run amok” on the brief and that its processes were the usual ones. If so, that might simply mean that the USCCB bureaucracy has institutionalized bad practices. Winters even goes so far as to complain that “Paprocki wants to do what Janus wants to do, overturn a group decision he did not like.” Well, insofar as the USCCB bureaucracy is purporting to present the supposed position of the bishops, it’s entirely legitimate for Bishop Paprocki to disassociate himself from a position that he rejects and to exercise his own teaching authority.

4. Winters invokes an op-ed by Bishop David Zubik of the Diocese of Pittsburgh in which Bishop Zubik asserts (in a passage that Winters endorses) that “if the Supreme Court rules that union political advocacy violates the free speech rights of someone who has agreed to do a union job, that ruling will threaten any organization that takes a stand on any issue.” Bishop Zubik somehow imagines that a ruling would threaten the ability of a Catholic institution to insist that its employees be faithful to Catholic teaching. But Zubik’s claim is a massive non sequitur, an empty assertion. The proposition that government employees have First Amendment rights not to have their employment conditioned on supporting speech they object to says absolutely nothing against the First Amendment (Free Exercise and Free Speech) rights that Catholic institutions possess.

5. In response to my argument that public-sector unions are the enemies of the Catholic church and of working families, Winters concedes my point on abortion and school choice but ignores my broader charge that the bloated salaries and pensions that public-sector unions so often extract are often at the expense of working men and women in the private sector, whether in the form of higher taxes or diminished public services.

Even on abortion, Winters tries to minimize the massive alliance between Big Labor and abortion supporters, as he contends (without deigning to offer any support for his claim) that union donations to Planned Parenthood “are for voter files, campaign organizers, and the like” (whatever that means). Never mind Big Labor’s broader support for continued government funding of Planned Parenthood. Never mind, for example, the American Federation of Teachers’ resolution declaring that it “stands with Planned Parenthood” (just one part of the convention expenses that AFT determined to be entirely chargeable to nonmembers—see CEI brief at 12-13).

6. More broadly, Winters never acknowledges that the sorry state of America’s public-sector unions must be factored into any prudential judgment about whether they deserve the bishops’ support. Pardon me for repeating myself: In Rerum Novarum, Pope Leo XIII warned Catholic workers not to join unions that “are managed on principles ill-according with Christianity and the public well-being,” and he insisted that “working men’s associations” must “look first and before all things to God” and “must pay special and chief attention to the duties of religion and morality.” In Populorum Progressio, Pope Paul VI emphasized that unions forfeit the justification for their existence when they adopt “a materialistic and atheistic philosophy” that “shows no respect for a religious outlook on life, for freedom or human dignity.”

Winters, rather than engaging this long line of Catholic teaching, instead retreats to the abstract principle that “workers have the right to organize.” One can fully embrace that principle, as I do, and also recognize that today’s public-sector unions are not the unions that Catholic teaching envisions. The difficult prudential question is not whether Catholics must support the public-sector unions in the Janus case—the answer to that ought to be an easy no—but rather whether it is even permissible for them to do so. I will happily assume that it is permissible, but the prudential case for that position rests on arguments that the USCCB, Winters, and Bishop Zubik (who seems blinded by nostalgia for the 1950s “union household” he “grew up in”) have not even begun to make.

Winters tells us at the end of this piece that tomorrow he “will return to the issue of why, as Catholics and as Americans, we should all be hoping the unions prevail in this case and why the bishops’ brief hits the nail on the head.” Let’s see if he corrects the many errors in his analysis between now and then.


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Colin Powell, R.I.P.

Colin Powell, R.I.P.

We had substantial disagreements but recognize that he will be remembered for a long, consequential career of service to a country that he loved.