http://inthesetimes.com/features/janus_supreme_court_unions_investigation.html
The Supreme Court case Janus
v. AFSCME is poised to decimate public-sector unions—and it’s been made
possible by a network of right-wing billionaires, think tanks and corporations.
THE ROMAN GOD JANUS WAS KNOWN
FOR HAVING TWO FACES. It is a fitting name for the U.S. Supreme Court case
scheduled for oral arguments February 26, Janus v. American
Federation of State, County and Municipal Employees, Council 31, that
could deal a devastating blow to public-sector unions and workers
nationwide.
In the past decade, a small
group of people working for deep-pocketed corporate interests, conservative
think tanks and right-wing foundations have bankrolled a series of lawsuits to
end what they call “forced unionization.” They say they fight in the name of
“free speech,” “worker rights” and “workplace freedom.” In briefs before the
court, they present their public face: carefully selected and appealing
plaintiffs like Illinois child-support worker Mark Janus and California
schoolteacher Rebecca Friedrichs. The language they use is relentlessly
pro-worker.
Behind closed doors, a
different face is revealed. Those same people cheer “defunding” and
“bankrupting” unions to deal a “mortal blow” to progressive politics in
America.
A key director of this charade
is the State Policy Network (SPN), whose game plan is revealed in a
union-busting toolkit uncovered by the Center for Media and Democracy. The
first rule of the national network of right-wing think tanks that are pushing
to dismantle unions? “Rule #1: Be pro-worker, not anti-union. … Don’t rant
against unions. … Using phrases like ‘union fat cats’ and ‘corrupt union
bosses’ and other negative language reduces support for reform.”
And yet, SPN
groups have systematically spearheaded attacks on unions and workers
in statehouses and courtrooms nationwide. The Janus case, and its
precursor, Friedrichs v. the California Teachers Association,
represent SPN’s most audacious move yet, an effort to kneecap the unions of
public-sector workers—including teachers, nurses, sanitation workers, park
rangers, prison guards, police and firefighters—in a single blow.
“TRUST TEACHERS!”
On Jan. 11, 2016, about 100
people bundled in coats and mittens mill around the Supreme Court steps. They
hold signs with little red apples that read, “Trust Teachers!” and “Respect
Teachers? Then respect their First Amendment rights!”
From a distance, it looks like
a teachers’ rally. A closer look reveals an odd array of participants. Grover
Norquist, the man who wanted to drown government in a bathtub, cheerfully
declines an interview as he breezes by. Daniel Turner, who worked for the
education reform task force of the far-right American
Legislative Exchange Council (ALEC), waves a “Trust Teachers!” sign from
behind the podium. Near him stands Chantal Lovell from SPN’s Mackinac Center
for Public Policy, a group credited with jamming a union-busting bill through
Michigan’s lame duck legislature in 2012. A representative from SPN’s
Arizona-based Goldwater Institute is present, as is a fellow from the Koch
brothers’ Americans for Prosperity (who also declines an interview).
The night before, SPN organized a dinner for representatives of its member
groups who had flown in for the oral arguments. Among its members were the
lawyers representing the plaintiffs in Friedrichs and 12 groups that
had filed supporting amicus curiae (“friend of the court”) briefs.
The suit was filed on behalf of Rebecca Friedrichs and nine other California
teachers who wanted to stop paying their “fair share fees”—money paid by
non-union members to cover the costs of collective bargaining.
On the courthouse steps, a
woman with a bullhorn tries to rev up the audience. “Who do we trust?” she
asks. “Teachers,” murmurs the crowd. “Who?” she yells. “Teachers!” Now they
have the hang of it. The podium is emblazoned with the hashtag #IStandWithRebecca.
Friedrichs deadlocked the
Court 4-4 after the death of Justice Antonin Scalia, leaving the status quo of
union fees in place. Expect a repeat of this courthouse scene February 26. SPN
is once again rallying the troops and a #StandWithMark hashtag is already
circulating.
Janus has its origins in
a lawsuit filed by billionaire Illinois Gov. Bruce Rauner. Rauner issued an
executive order in 2015 instructing Illinois to stop collecting fair share
fees. At the same time, he filed a federal lawsuit to speed the issue to the
U.S. Supreme Court. Two SPN member groups—the Illinois Policy Institute and the
National Right to Work Legal Defense Foundation—joined the suit with plaintiff
Mark Janus, who makes a much more sympathetic poster child than a billionaire
venture capitalist. When Rauner was found not to have standing, Janus was
allowed to pursue the suit.
Janus is a child-support worker
employed by the Illinois Department of Healthcare and Family Services. “The
union voice is not my voice,” Janus wrote in a Chicago Tribune op-ed.
“The union’s fight is not my fight. But a piece of my paycheck every week still
goes to the union.” His lawyers will argue before the Court that if “money is
speech” in a post-Citizens United world, then fair share fees are
unconstitutional “forced” or “coerced” speech.
The Court decided 40 years ago
in Abood v. Detroit Board of Educationthat fair share fees are
constitutional. The decision tried to balance the right of a union to exist
against the rights of any workers who don’t want to be members.
Since unions must represent all employees in contract negotiations, the
Court held that nonmembers could be assessed a fee to cover the costs
associated with this representation. But, the Court said, nonmembers could not
be charged for costs associated with political activities. Today, fair share
fees and political fees are separated. The Abood decision is not a
good enough compromise for the Janus lawyers, who argue everything a
public-sector union does is political.
Overturning Abood would
be “a right to a free ride, nothing more, nothing less,” says Joel Rogers, a
University of Wisconsin law professor. “There’s no question that it’ll have a
devastating financial effect on public-sector unions, at least in the short term.”
THE TROIKA
Media coverage has focused
almost uniformly on the personal stories of Mark Janus and Rebecca Friedrichs,
and the complex legalities of their cases. That coverage obscures the bigger
picture.
“It’s a mistake to focus on
the individual plaintiffs,” says Alexander Hertel-Fernandez, an assistant
professor of international and public affairs at Columbia University. “Instead,
the focus should be on the conservative advocacy groups. … ALEC, SPN and the
Kochs’ Americans for Prosperity have all worked hand in glove over the past
several years to cut back the strength of public-sector unions. The effects of
this case will be felt far beyond the plaintiffs.”
ALEC was founded in 1973 as a
venue for politicians and corporate lobbyists to meet behind closed doors and
draft cookie-cutter legislation, known as “model bills,” that promote corporate
interests. The Center for Media and Democracy published ALEC’s library of secret bills in 2011. One stack of
model bills aims to privatize public services and public schools; another stack
aims to break unions.
Americans for Prosperity
(AFP) is a right-wing political advocacy group founded by billionaire
brothers David and Charles Koch, owners of Koch Industries. AFP, fueled by a
large network of millionaire and billionaire funders, spends millions on TV ads
in election cycles and serves as the Kochs’ “grassroots” lobbying arm. AFP
representatives participate in both ALEC and SPN.
SPN is the least well-known of
the three groups, in part because it is made up of dozens of innocuous-sounding
“institutes” and “centers” like the Illinois Policy Institute and the Mackinac
Center. Yet SPN’s 66 think tanks and 87 associated groups take in more than $80
million annually, eight times the budget of ALEC.
SPN’s predecessor, the Madison
Group, was launched by ALEC in the 1980s to be a Heritage Foundation in each of
the states, at the suggestion of President Ronald Reagan to millionaire
Thomas Roe. Today, SPN members provide the local presence needed to make ALEC
proposals appear homegrown.
In red states, SPN groups
provide the cookie-cutter studies, the “expert” legislative testimony and the
media commentary to back ALEC’s union-busting bills, school voucher programs
and other Koch political priorities. In blue states, these think tanks use
door-knocking campaigns to solicit workers to quit their unions,
“recertification” efforts to force unions to vote annually on whether to exist,
and lawsuits aimed at demobilizing organized labor.
“This form of
ultra-conservatism is geared toward making sure that there is no organized
power outside of big business and wealthy, organized donors,” says Theda
Skocpol, a Harvard professor of government and sociology. For that reason,
pulling back the curtain on how this machine operates and is funded is vital to
workers’ interests.
The work of this “troika,” as
Skocpol and Hertel-Fernandez call it, is underwritten by corporations, right-wing
foundations and a handful of billionaires. Most corporate donors have managed
to keep their identities secret, but ALEC’s industry advisory board, which
helps fund the organization, has included representatives of Koch Industries,
Exxon Mobil, Pfizer, State Farm and other giant firms. Known past funders of
AFP include the American Petroleum Institute and Reynolds American. SPN’s past
donors include Altria/Phillip Morris, AT&T and Time Warner.
Another big chunk of the
funding for the troika—tens of millions over the past decade—flows from Donors
Trust and Donors Capital, two donor-advised funds connected to the Koch
brothers’ network. These funds help donors cloak their identities.
The Lynde and Harry Bradley
Foundation in Milwaukee, with more than $900 million in assets, is another
major operational funder. Harry Bradley started the foundation in 1942, shortly
after the death of his brother, Lynde, with profits from their electronics
parts manufacturing company. Like the Koch brothers’ father, Fred Koch, Harry
was a big supporter of the far-right, anti-civil rights John Birch Society. He
frequently hosted its founder, Robert Welch, for public presentations at the
company’s Milwaukee headquarters. Today, Bradley is one of the SPN network’s
biggest benefactors, funneling $133 million to network groups since the 1980s.
Bradley has also funded ALEC and AFP.
Across the country, in
statehouses and in court, the troika has transmuted this flood of money into a
two-pronged attack on unions. But, Skocpol says, “This is not what the public
wants. It is entirely a political effort to destroy the most significant,
organized political counterweight to the extreme Right.” In fact, the
popularity of unions is on the rise. A 2017 Gallup poll found that the
percentage of Americans who approve of unions had risen 5 points in a single
year, to 61 percent, the highest since 2003.
IN THE STATEHOUSE
A trove of
Bradley Foundation documents were leaked in 2016 by a sophisticated
group of international hackers. The documents reveal the inner workings of a
15-year effort to build infrastructure in battleground states to support the
Republican Party and tear down unions.
In 2003, Bradley launched its
disingenuously named Working Group on Employee Rights at a private meeting in
Washington, D.C. The group included Grover Norquist of Americans for Tax Reform
(an SPN member) and Paul Kersey, who has worked for the National Right to Work
Committee, the Illinois Policy Institute and the Mackinac Center, three of the
nation’s premier union-busting operations. A later meeting would bring in ALEC,
SPN and the anti-union front group Center for Union Facts. What emerged is a
stream of underwriting for think tanks, anti-union litigation efforts,
anti-union media groups, opposition research shops and even an anti-union alternative
to teachers unions (the Association of American Educators).
In 2009, Bradley CEO Michael
Grebe, once an attorney for the Republican National Committee, backed a
little-known county executive, Scott Walker. Grebe took a highly unusual step
for a “philanthropist,” becoming the chair of the Walker campaign for governor.
As a result of the financial
crisis, Democrats were swept out of office in 2010 and a wave of Republicans
took control of 26 state legislatures (up from 14) and six new governors’
mansions. This was the opportunity the groups had been waiting for.
Bradley suddenly ramped up its
annual giving to AFP from $20,000 to $520,000. The head of AFP, Tim Phillips,
visited Walker before he was sworn in, urging him to provoke a showdown with
public-employee unions. The group was working on a similar strategy in Indiana,
Ohio and Pennsylvania.
Weeks after taking office,
Walker declared that Wisconsin was facing a dire financial crisis and
introduced his Act 10 “budget repair bill,” which would slash $900 million in
school spending and gut the state’s collective bargaining law. Walker justified
the bill by declaring repeatedly that the state was “broke.” But in
a Congressional grilling a month later, when pressed by Ohio Rep.
Dennis Kucinich on how much money the measure would
save, Walker admitted, “It doesn’t save any.” (Similarly, when Rauner
issued his executive order to block fair share fees, he claimed budget deficits
forced his hand, but in front of a friendly audience at the Hoover Institute in
California, he admitted that the executive order had “nothing to do with any of
the budget.”)
The Wisconsin gambit has been
repeated in red state after red state. All told, 15 states have passed bills
restricting collective bargaining by public workers, and six states—Indiana,
Ohio, Michigan, Missouri, Kentucky and West Virginia—passed ALEC union-busting
right-to-work bills despite mass protests. In some states, the public has taken
to the ballot to turn back the attack: Voters in Ohio reversed the measure with
a veto referendum in 2011; Missouri has a referendum on the ballot for 2018.
IN THE COURTS
States under Democratic
control required different strategies. A blitzkrieg of lawsuits against unions
were unleashed, including the 2012 Knox v. SEIU in California,
the 2014 Parrish v. Dayton in Minnesota, the 2014 Harris v.
Quinn in Illinois, the 2015 D’Agostino v. Patrick in
Massachusetts, the 2015 Bain v. California Teachers Association and
the 2016 Friedrichs. These cases did not originate with public workers,
critics claim, but were instead initiated by right-wing lawyers who sought out
clients to advance a union-busting agenda.
The National Right to Work
Legal Defense Foundation (NRTWLDF) supplied attorneys for most of these cases
and is the lead attorney in Janus. Founded in 1968 with a mission to
“eliminate coercive union power,” the foundation (along with its advocacy arm)
is an SPN member with $14 million in annual revenue. NRTWLDF is funded by the
usual suspects: Donors Trust and Donors Capital, the Bradley Foundation, and
the anti-public-school Walton Foundation, run by Walmart’s founding family.
A long list of amicus curiae
briefs from a variety of think tanks may make it seem as if the Janus side
has broad national support. In fact, 13 of 19 briefs filed by organizations
(rather than governments or individuals) for the plaintiff come from current or
former members of SPN. Seventeen were filed by groups that have received
funding from Bradley, Donors Capital and Donors Trust.
Another funder of this work is
the National Federation of Independent Business (NFIB), a trade association
affiliated with ALEC and SPN that filed anti-union briefs in Friedrichs and Janus.
Why should private-sector NFIB care about public-sector unions at all? In his
book The One Percent Solution: How Corporations Are Remaking
America, One State at a Time, political economist Gordon Lafer quotes a
2015 NFIB blog post: “Because ... if unions are dealt a blow in the public
sector, private sector businesses might see decreased pressure from pro-labor
forces on issues ranging from the minimum wage to paid sick leave and other
employee benefits.”
Lafer, a professor at the
University of Oregon’s Labor Education and Research Center, insists the
corporate money behind these institutions should not be overlooked. “Who are
the most serious opponents to the corporate agenda on the minimum wage, paid
sick leave, health insurance and NAFTA free trade?” Lafer asks. “[Corporations]
think they will get rid of their best-funded opponents on a whole range of
issues.”
DEFUNDING THE DEMOCRATS
Grover Norquist is excited
about a potential Janus victory for another reason. “Seven million
public-sector employees who pay between $4 billion and $8 billion a year in
dues—a third of them will quit [paying],” he told The Atlantic. “Now try funding the modern Democratic Party
without union dues—good luck.”
While fair share fees do not
directly fund union political activity, any loss of funding could weaken a
union’s organizational capacity, ultimately undercutting electoral clout.
According to FollowTheMoney.org,
unions contributed an estimated $602 million to state and federal races and
ballot initiatives in 2016. Slightly more than half of that ($319 million) came
from public-sector unions. In 2016, labor was the largest contributor to
state-level Democratic candidates, accounting for at least 18 percent ($128.7
million) of their total fundraising. Unions also mobilize their workers as
persuasive door knockers at election time who can explain who they are and what
they fight for.
Research by academics like
Columbia’s Hertel-Fernandez suggests that the erosion of public-sector union
membership by ALEC bills has also dampened political participation. His most recent study, based on data from 1980 to 2016, shows
that right-to-work laws decrease Democratic presidential vote share by 3.5
percent and depress overall turnout.
BEHIND CLOSED DOORS
It would be imprudent for
Bradley or SPN to be as blunt as Norquist in public (given their tax-exempt
status as charitable organizations), but internal Bradley and SPN documents are
clear about their goal of bleeding the Democratic Party of funding.
Norquist has long described
unions, public-sector workers and trial lawyers as the funding “pillars” of the
Democratic Party. In internal documents prepared for its board of directors,
Bradley staff channels Norquist and recommends continued funding for the NRTDLF
because “big Labor and trial attorneys … are the two principal funding pillars
of the Left.” Bradley has gifted the anti-affirmative action Center for
Individual Rights, which represented the Friedrichs plaintiffs, with
more than $1.5 million.
Materials prepared for the
Bradley board track Friedrichs and the cases leading up to it. A map
from the pro-worker Economic Policy Institute is included to show states that
allow fair share fees, annotated to show the potential monetary losses for
unions at $500 million to $1 billion per year. Bradley staff quote “the
leftist In These Times,” which characterized Friedrichs as a
case “that could decimate public-sector unions.”
Another case leading up
to Janus was Bain v. California Teachers Association, which
attacked the way the union processed political fees. Bradley staff called Bain and Friedrichs combined
a “powerful ‘one-two’ punch” against unions, predicting that “all that would
remain to fund the unions’ political apparatus would be the hardcore teacher
members.”
For Bradley, the anti-union
work was a twofer. Bradley has long been a proponent of the privatization of
America’s schools; America’s public school teachers and powerful teachers
unions stand in the way. Internal documents show Bradley staff bluntly
advocating projects to “defund teachers unions and achieve real education
reform” at the same time.
“Teachers unions are at the
heart of all this,” says Harvard’s Theda Skocpol. “Teachers exist in every
community across the country. They are educated, they speak up, and they care
about public schools. Break the teachers unions and you break the
organizational power that exists in and around the Democratic Party at the
state and local level.”
In an April 2016 fundraising
letter obtained by the Center for Media and Democracy and published in the Guardian, SPN CEO Tracie Sharpe asks
her readers to help strike “a major blow to the Left’s ability to control
government.”
I am writing you today to
share with you our bold plans to permanently break the power of unions this
year. ... I am talking about the kind of dramatic reforms we’ve seen in recent
years in Indiana, Wisconsin, Michigan and now West Virginia—freeing teachers
and other government workers from coercive unionism—and spreading them across
the nation. … I’m talking about permanently depriving the Left from
access to millions of dollars in dues extracted from unwilling union members
every election cycle.
SPN’s secret union-busting toolkit even celebrates this February
2016 quote from a Wisconsin AFSCME leader talking about the devastating impact
of Walker’s Act 10 bill: “Do we have less boots on the ground? Yeah. Do we give
the same amount of money to candidates? No.”
The Freedom Foundation in
Olympia, Wash.—a featured and feted SPN member—has been equally explicit in its
fundraising letters. One 2014 letter obtained by the Guardian reads, “The Freedom
Foundation has a proven plan for bankrupting and defeating government unions
through education, litigation, legislation and community activation.”
A Freedom Foundation-produced
brochure, titled “Undue Influence: Public Unions’ Cycle of Power,
Electioneering,” shows multiple charts and graphs on union spending in
campaigns and elections. The graph “Democrats’ Dependence on Union Funds” lists
31 Washington state Democratic legislators and their union campaign
contributions. The accompanying text argues that “the problem associated with
union electioneering” could be solved by weakening unions and eliminating fair
share fees.
SPN member groups have also
cited their union-busting efforts as key to electing Trump. The Wall
Street Journal profiled Tracie Sharpe in a post-election puff piece on its editorial page, titled “The Spoils
of the Republican State Conquest.” She tells the paper that Wisconsin and
Michigan were only “thinly blue” and that the destruction of the states’ unions
has put the GOP on better footing. “When you chip away at one of the power sources,
that also does a lot of get-out-the-vote,” Sharpe chirped. “I think that
helps—for sure.”
Unions lost 136,000 members in
Wisconsin; Trump won by 23,000 votes. “Did the labor reforms enacted in
Wisconsin and neighboring Michigan help Donald Trump win those states?” asks
Norquist associate Matt Patterson in the Daily Signal. “No question in my
mind. Hard to fight when your bazooka’s been replaced by a squirt gun.”
Most of the groups pursuing
this agenda, including Bradley and SPN, are tax-exempt charitable groups.
After Citizens United ushered in a surge of dark money groups, the
Obama administration’s IRS attempted to distinguish real charitable
organizations from false ones, only to have the effort shut down by tremendous
blowback from the Right. Ever since, the IRS has been reluctant to take action
on these kinds of issues.
“There is simply no basis in
law to find that defunding or attacking unions is a tax-exempt charitable
activity,” says attorney Marcus Owen, former director of the IRS’s exempt
organizations division. “On the contrary, such actions are deeply infused with
private benefit to employer interests and political party interests—but not
with community or public benefit, which is required under the law.”
DEGRADATION OF CRITICAL
SERVICES
The Democratic Party is not
the only loser in this scenario; real harm will be done to U.S. workers and
their families. Following World War II, unions expanded dramatically,
representing 35 percent of the workforce at their peak in the mid-1950s and
helping to usher in an era of shared prosperity. According to the Economic
Policy Institute, unionized workers make 20 percent more, on average, than
other workers, but their ranks have shrunk to 6.5 percent of private-sector
workers and 34.4 percent of public-sector workers in 2017. This decline has
exactly tracked the decline of the American middle class.
The attack on public-sector
workers is also an attack on women and African Americans, groups
disproportionally represented in public-sector unions. According to a National Women’s Law Center analysis, women make up 55
percent of union-represented public-sector workers, and a 2010 analysis from
the Center for Economic and
Policy Researchshows that African Americans are 30 percent more likely than
the overall workforce to hold public-sector jobs.
One silver-lining argument
contends that an adverse Janus ruling presents an opportunity for
unions to simply do their job better: Talk to every member, innovate on
services and benefits, and do the kind of “deep organizing” needed to
outmaneuver wealthier opponents. The data from Wisconsin, however, is not encouraging.
Five years after Walker’s draconian Act 10 bill, Wisconsin’s union membership
rate had dropped from 14.2 percent to 8.3 percent of the workforce. The impact
of Janus would be less immediate but would snowball over time:
Weaker, less effective unions have a harder time attracting members.
“If fair share fees are struck
down, it simply won’t be possible to provide the expertise to bargain with
employers to increase wages and benefits,” says John Matthews, the retired
executive director of Madison Teachers Inc., a National Education Association
affiliate in Wisconsin.
The erosion of public-sector
unions means that public-sector jobs will pay less and become less attractive,
degrading not just a source of good jobs but the critical public functions
these workers serve. The average annual salary and benefits for teachers in
Wisconsin dropped by $10,843 after Act 10 was passed, a 12.6 percent reduction.
The result has been a staggering shortage of teachers, including an “extreme”
shortage in math and science, forcing the state’s independent Department of
Education to reluctantly issue “emergency” teacher’s licenses.
For the most part, the
right-wing machine’s deeply financed, organized and focused attack on workers
has rolled its agenda through without meaningful resistance from Democrats. To
be sure, in Wisconsin, the union-busting plan was met with one of the largest
sustained mass protests in labor history and a 16-day occupation of the
Capitol. Fourteen Democratic state senators even fled to Illinois to block a
vote on Act 10. But too often, the Democratic Party has been asleep at the
switch. First Jimmy Carter, then Bill Clinton, then Barack Obama failed to pass
a national “card check” program—a measure that would have made forming a union
as easy as signing a postcard—while their party controlled both houses of
Congress.
If the Janus verdict
goes against public-sector unions, the great challenge for Democrats will not
merely be one of funding, but one of leadership. Who will step up to push for
the renewal of trade unions, not just for the party’s political future, but for
a country that cannot progress toward economic and social justice without a
prosperous and muscular labor movement?
MARY BOTTARI is the
deputy director of the Center for Media and Democracy (CMD). She helped launch
CMD’s award-winning ALEC Exposed investigation in 2011 and is a recipient of
the Hillman Prize for investigative journalism.
This story was supported by
the Leonard C. Goodman Institute for Investigative Reporting. David Armiak and
Elena Sucharetza provided research assistance.
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