Yesterday, the Supreme Court issued its decision in Harris v. Quinn, upholding a decades-old precedent that allows public-sector unions to collect “agency fees,” also known as “fair share fees,” from non-members covered by their collective bargaining agreements. However, in a narrow victory for anti-union forces, it carved out an exemption to that ruling, saying that home health care workers who do not wish to support a union cannot be compelled to pay fair share fees.
At the center of the case was a familiar argument, made here by the National Right to Work Legal Defense Foundation officially representing Pamela Harris, but originating in the same billionaires’ chorus behind every attack on working people in the United States.
These anti-union operatives argue that fair share fees in the public sector are unconstitutional because they allow the state to compel workers to support a political cause or organization, thereby violating their First Amendment freedoms of speech and association.
In its crusade against public sector unions, the corporate right claims that the longstanding distinction between fair share fees and political contributions is not valid in public sector unions. Because unions like AFSCME negotiate how the government will spend tax revenue, they say, public sector unionism is inherently political.
Essentially, they argue that there is no distinction in the public sector between bargaining and lobbying, and that fair share arrangements force non-members to fund political advocacy.
The claim doesn’t (or shouldn’t) stand up in court. Unlike a lobby or interest group, a union has a duty to provide a service to every worker covered in its agreement. And, as history has shown, that service cannot be provided except on a truly collective basis: everybody in, nobody out; united we bargain, divided we beg.
But the problem goes deeper than some faulty reasoning by right-wing interest groups. Constitutional scholars Catherine Fisk and Erwin Chemerinsky have pointed out a consistent pro-corporate, anti-union bias in recent First Amendment cases.
When the freedom in question is that of a corporation, like Hobby Lobby, the First Amendment is interpreted to protect a corporation’s right to dispose of shareholder money and employee benefits funds with no accountability.
However, when the freedom in question is that of an organized worker opposing his or her union, the First Amendment is construed to restrict the union’s right to raise and spend funds in accordance with the priorities of its members.
The scholars note that the while Supreme Court has valued free speech rights of organizations over dissenting members in cases like Citizens United, it has simultaneously restricted the free speech rights of unions over dissenting workers in cases like Knox v. SEIU local 1000.
Thus, Fisk and Chemerinsky say, anti-union employees in union workplaces have free speech rights that no corporate employee, shareholder, or non-profit member enjoys, a situation that “cannot be justified by law or logic.”
But at the bottom, this isn’t about law or logic. It’s about busting the most densely organized sector of the American working class, rolling back decades of struggle that have been decisive in raising the standard of living for women and people of color in particular.
We dodged a bullet in Harris v. Quinn. In an act of rare resistance to the corporate right, the five conservatives of the Roberts court stopped short of overturning seven decades of precedent in favor of fair share fees. But we’re still fighting a defensive battle.
The one percent is trying to set taxpayers against the workers that teach their kids, clean their streets, and staff their government offices.
They’re trying to stir up dissension in the ranks of labor, working as they have for 150 years to break our solidarity by telling workers that enjoying union benefits without paying dues isn’t just legal, it’s as American as the Bill of Rights!
They do these things because they know that if they can break the labor movement, they can roll back 100 years of progress for working people, sweep away the New Deal, gut workplace safety regulations, reinstitute child labor, and eliminate the minimum wage.
They do it because they know our unions are our last bulwark against unfettered plutocracy and the naked tyranny of the capitalist class.
I’ll close with some advice.
First, to the corporate right: freedom to oppress is not covered by the First Amendment. Stop trying to cloak your anti-worker schemes in the language of liberty. Better Americans than you have given their lives for our right for fair wages and respect.
Then, to workers who object to being represented by a union: if you think higher pay, health care, and retirement benefits violate your First Amendment rights, then exercise your freedom and opt out. Stop trying to hurt your fellow workers and go find a non-union job. I’ve heard there are more and more of them available these days.