Thursday, January 28, 2016

The Supreme Court Could Severely Damage Public Unions This Term

The Supreme Court is considering a very important case this term called Friedrichs v. California Teachers Association. In California, public employee unions like teachers unions require all government employees to contribute dues by all. Now, a teacher in California, Rebecca Friedrichs, has sued the teachers union over this. She is arguing that being compelled to support a union she disagrees with is a violation of her First Amendment rights.

On its face, this could seem like a slight stretch. What does a union have to do with free speech? Well, when that union is a public union, it turns out the answer is everything. Essentially everything a public union does is political in nature. If it's negotiating for higher wages and benefits, that might require the government to raise taxes or shift resources from other priorities. If the union is supporting certain political candidates that it perceives to be supportive of its cause, that obviously has a political agenda as well. Thus, in effect, public employees are being required to financially support these political moves regardless of whether they actually believe in them.

As an extreme example to drive the point home, imagine that a portion of your wages was automatically deducted and sent to the Clinton or Trump campaigns (or whichever candidate you love to hate right now). Obviously, that would be an infringement on your free speech. The same principle applies to the public employee union.* That's the essence of the argument being made in the Friedrichs case, and, happily, it appears to have a real chance at victory.

It's important not to think of this in the standard pro-union vs. pro-business dichotomy. For one thing, there's no business involved so it makes no sense. The question here is not whether unions should exist, whether they are a positive force on society, or whether we want public employees to make a decent living. The question at hand is whether a union should be allowed to compel an employee to give them money against their will. So if we still want to reduce public unions to a binary question, either of these might be better suited to the task:

Pro-coercion vs. Pro-worker
Pro-union vs. Anti-coercion

I mention this because we are all conditioned to have knee-jerk reactions based on whatever political tribe we happen to subscribe to. If you're a liberal, you might assume the pro-union position is correct; if you're a conservative, then you probably default to the opposite. But one of the things that's so great about this particular issue is that it mixes up all the usual messaging. Here's how the standard thinking would apply to this particular issue:

Liberals: We need to support the unions so we can protect those workers from being underpaid by those greedy the government?

Conservatives: We need to oppose the unions to preserve freedom of contract and give the employers more latitude to innovate and create efficiency... in the government?

Both: Aw hell.

See it all works out until you get to that last part. When the employer is the government, the conventional arguments break down. This is particularly true on the pro-union side, and it's worth exploring briefly before we close.

As I understand it, the general argument in favor of strong union legislation (including mandatory membership requirements), is to protect workers from the greed of profit-seeking employers. The idea seems to be that those heartless capitalists will stop at nothing to increase their own wealth, and thus unions need to exist as a counterweight to ensure workers can get treated fairly. Regardless of how you feel about that argument, we should all agree that it doesn't apply here. In the conventional understanding, the government's leadership has no clear incentive to underpay or mistreat its workers. They're paying them with tax dollars so it's not like they stand to earn less money as a result. Arguably, they have an incentive to avoid raising taxes during their term, but that's the only plausible financial constraint facing them. (And it's readily overcome by just promising long-term pension benefits instead of pay increases that might take effect this term.) This is clearly a much different environment than a private company that is faced with competitive threats and has direct financial incentives involved for the decision makers.

Indeed, given this understanding, it's a fair question to ask why the public employee union needs to exist at all? Yes, teachers may have an interest in advocating particular policies that they think would be beneficial (to the system or themselves). And perhaps police officers may have an interest in pushing for certain policies. But they don't need a union for that, and they certainly don't need to be able to compel workers to support their agenda.

It's important to remember that being pro-union and being pro-worker aren't necessarily the same thing. And in this case, being pro-worker means you should probably support their right to keep their own money.

If you're interested in learning more about this story, I'd encourage to check out these two articles from the Foundation for Economic Education. The first offers an in-depth background on the case, and the second gives an update on how the Supreme Court appears to be leaning after hearing the case--spoiler, they appear to poised to rule against the public unions.

The First Amendment Could Break the Grip of Government Unions

Court May Free Public Employees from Compulsory Union Dues

*Note that this argument should not necessarily hold for a private employer. In theory, private employers should have the ability to place various conditions on a prospective employee; if the employee consents to them, then there's no violation. Properly understood, the First Amendment protects your freedom of speech against the government; other restrictions that are voluntarily agreed between private parties are a different matter.

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