Is it unconstitutional to require public sector workers to pay union dues for a union they are not a part of and do not want to support? If unions are political in nature, why are government workers forced to subsidize their political speech? In Illinois especially, how is it that union leaders can negotiate salaries and benefits with the very people they made sure got into office? President of the Liberty Justice Center, Pat Hughes joins Dan and Amy from Washington D.C. to discuss the oral arguments beginning today in Janus v. AFSCME.
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Proft: Good morning, Dan and Amy, and there is a seminal labor case for which oral arguments will be heard before the Supreme Court today, that is Janus v. AFSCME. This case has the chance to change the political landscape in this country, to give public sector workers freedom with respect to their union dues, and to really cripple public sector unions, and the money they extract out of their employees. Mark Janus, who has become a bit of a celebrity because this is a case of such national import, is actually a staffer...he works for Illinois Department of Human Services, and this was the case that was to be decided in 2016 before Justice Scalia's death... Friedrichs v. California Teachers Association, the Court split 4-4, thus the lower court's decision stood, and that was to keep "Fair Share" in place. With Gorsuch now replacing Scalia, the prospects are pretty rosy for advocates for worker freedom, like the Liberty Justice Center, like National Right to Work, there are the insit...the organizations that are representing Mark Janus and who will be presenting oral arguments before the High Court today. And one of the individuals who's been spearheading this is the co-founder of the Liberty Justice Center. He is Pat Hughes, who joins us now. Pat, thanks for being with us, appreciate it. Hughes: Good morning, Dan, good morning, Amy, how are you? Proft: Good morning. So, just lay out the arguments of both sides and the implications were Mark Janus successful and the court rules in his favor. Hughes: So, no one is required to join a public sector union, but if you're a state employee in Illinois and you don't belong to the Union, you still have to pay agency fees, or what people call "Fair Share Dues". And our client, Mark Janus, doesn't want to pay those dues, because he doesn't want to affiliate with the Union or support the Union's speech or activity. And everything, Dan and Amy, that a public sector union does is political in nature, whether it's direct political activity, or collective bargaining. Because ostensibly through collective bargaining, what they're doing is lobbying the government to spend taxpayers dollars on their benefits, on their salaries, on other things, and so the nature of that Union is political, and being forced to support it financially is a violation of your First Amendment right to free speech, because you're making political speech that you don't want to make, in the case of Mark Janus, or rights of freedom of association. You should not be forcing them, as an American citizen, to associate with a group that you don't want to associate with them. So that's what's at issue today, and the oral arguments are at 10AM before the United States Supreme Court. Jacobson: So the High Court's going to determine whether these agency fees are unconstitutional. How do you think the Supreme Court Justices are going to vote on this, what's your prediction? Hughes: So, Dan set it up pretty well, and I don't want to make a PREDICTION, but before Justice Scalia died, it looked like there was going to be a 5-4 decision in favor of the principles of our case. And then when he died, Justice Gorsuch came in. So we're hopeful that the four Justices, and we expect the four Justices that ruled in our favor previously in the Friedrichs case will rule that way again and then it's hard to read the tea leaves, but Gorsuch seems to be the type of jurist who would see things the way that we do. And we're going to make strong arguments today, hope he sees it our way in the oral arguments and the briefs, and we're hopeful that they'll decide in our favor before the Summer's up. Proft: Just to put a fine point on it, to make this tangible for people, you know, kind of at bar it's...I think it was nicely encapsulated by this Wall Street Journal piece, "Mark Janus was with Hillary, whether or not he wanted to be." And it was the idea that the public sector unions went all in with Hillary Clinton, and people like Mark Janus, who maybe wanted to stay out of the race, maybe wanted to support Bernie Sanders, maybe wanted to support a Republican, they were forced to be with Hillary whether they wanted to or not, and that's of course the same thing that goes on for rank-and-file members of AFSCME or SEIU, or the teachers' unions here in Illinois, with respect to the, you know, 98% of money that's spent by those powerful public sector unions here, on Democrats. Hughes: Yeah, our position is a real easy one, Dan and Amy. Look, if you want to be a member of a public sector union, and you like the things the public sector union is offering, God bless you. Join the union, pay the dues, be part of that. We're not opposed to the rights of people to collectively bargain. But, if you don't want to be part of the union, if you don't want to be, for example, for Hillary as you just laid out, then you should not be forced to be part of that. And what's happened in this case, and with public employees who are non-union members all across the country, is that they're subsidizing the political activity and political speech of messaging and organizations that they don't want to be associated with. Proft: Well, why don't the Unions want to put themselves to that market test? I mean, if they're offering such a good product, and good representation, people would voluntarily choose to join. Hughes: It's a great question, and hopefully it's a result of what happens long term if we're able to be successful. I think the reason is, Dan, that if you can get someone to pay you something for nothing, it's a lot easier than getting them to do something for something, and I think the result of this case could be beneficial for everybody. It's beneficial for workers because they have more freedom, and they have the right to choose whether or not they want to associate with the Union, and how to spend their...that amount of money. But, it will also force the Unions to take a look at the people they want to have as members, be better and more service-oriented, and ultimately it could help strengthen their message, and internally sort of make them more competitive for those members, and that's a win-win for the worker, and ultimately, for the Union. Jacobson: So you really think Unions could survive if the Supreme Court rules in your favor? Hughes: I definitely think they'll survive, because people participate voluntarily in the unions as it is. Mark Janus, our client, is a public sector employee who's non-union, but there are plenty who join the union and want to be part of the union, and so they'll continue to go on. It'll just give everyone the right to choose whether they want to be a part of it. So unions will continue to exist, but in a different context and under a circumstance where they're going to have to be more attractive to potential membership. Proft: Yeah, they're going to lose members and they're going to lose money, and we had a little bit of a...little bit of foreshadowing on this if the decision were to go Janus' way, with the Budget Repair Bill in Wisconsin, where Governor Walker and Republicans up there pushed that...essentially eliminated Fair Share up there, and the Wisconsin Education Association, the teachers' union up there, saw their membership drop by like 40% virtually overnight. Hughes: Yeah, and you can say that...that's because you're giving people the right to choose. And that's the circumstance if people have a right to choose, that's how they chose in that instance. That is, perhaps, how people will choose across the country if the case goes our way. But then it becomes incumbent upon the unions to provide a product or a service that's beneficial, just like everywhere else. And if people think that product, or service, benefits them, and they think it's worth the money to pay for it, then they will. If they don't, they won't. And that will be what the Union will have to face, years off the face if that's the case. Jacobson: That's amazing...and I was in a union, and it was AFTRA/SAG, and I tried Pat, I said "I don't wanna be...I don't see what the benefit is", because they would give money to Democratic politicians. And I've given them THOUSANDS of dollars, you know they take it automatically out of your paycheck, whatever. And they said it wasn't an option for me to opt out. Proft: Yeah, it was a closed shop. Same thing for me when I was at WLS. Jacobson: A closed shop, yeah. But I mean, you wouldn't even have an option. If you guys win with this case, do you think that will help us with other unions? Proft: Free...free the SAG/AFTRA members, Pat! Hughes: Yeah...unfortunately, we will not be able to do that, Amy. look, this is...it's a different argument in a different circumstance, because it's a public sector union. Everything a public sector union does is associating with a governmental entity, so it's all political in nature. Collective bargaining for public sector unions is lobbying for taxpayer dollars, in any other context it would be called lobbying. So, there is a unique public nature of that activity when it's public sector vs. private sector, so this will be, if we are able to win this case, this will make it Right to Work for public sector union employees all over the country. And of course, the unions make the argument that the non-union members, if they aren't forced to pay, are "free riding" off their good work of collective bargaining. The reality of it is the unions have set up these laws this way so they're forced to bargain on behalf of all public sector employees so that they can go ahead and collect the dues, and have access to those employees. So, so, their counter-argument that these folks are "Free Riders" is a little bit specious in my opinion, and I'm hopeful that the justices will see through that today. Proft: Well, and it highlights the distinction that isn't made often enough between public sector and private sector unions, where you have an adversarial collective bargaining process in the private sector, and often times you have public sector unions that have captured management in the public sector and it's sort of a sham negotiation. Hughes: Yeah, because they're negotiating with the very people that they're... Proft: ...that they financed into office! Hughes: ...that they're in charge of putting in place. Proft: Right! Hughes: And if it doesn't go their way, there's the potential that they'll go find someone out there who's going to do their bidding. In Illinois, and I've had a lot of conversations with national media, so it's great to be talking to folks in Illinois, and in the Chicago area...in Illinois, everybody knows how powerful the public sector unions are in terms of representing people in the city of Chicago, or state representatives or state senators or even governors, and so there's an opportunity for the unions to put the politicians in that their ultimately going to negotiate with. Proft: Now, Governor Rauner has made his way out to DC to hear oral arguments today. You issued a letter last week rebuking the Governor though, slapping his hands for his pronouncements before the Chicago Tribune Editorial Board and elsewhere about the Janus case, about his involvement. You note in your letter that he doesn't play any role in this case, in fact that he had an opportunity to submit an amicus brief on behalf of Mark Janus, and he didn't do it. And so, why the chastisement of the Governor? Hughes: So, the Governor initiated the case, Dan, back in 2015, but then he was bounced out of it because he didn't have standing. He's had no role in it since that time, but in his primary election against Representative Ives, he is using this case, and another case of ours, as sort of main positions of his re-election campaign, and he's misrepresenting his role in the case, and he's making predictions about the case. He thinks...he's made a prediction that there's a 90% chance we'll win. Well, he shouldn't be doing that, because it's a mistake, and it's not responsible. And he shouldn't be misrepresenting his role. The reality of it is he didn't file an amicus brief in support of the case, he's had NO ROLE with respect to the case, and frankly he's trying to take credit for work that he didn't do in a political context, and in my opinion that's bad form. Secondarily, this case should not be politicized. This isn't about Republican workers or Democrat workers or independent workers, this is about workers all across the country, regardless of their ideological stripe, having the constitutional right to choose for themselves under the First Amendment, and it's not about any particular politician and it's certainly not about Governor Rauner's re-election. Proft: Boy, Governor Rauner misrepresenting himself or someone else...knock me over with a feather! He is Pat Hughes, President of the Liberty Justice Center, and he'll be there in DC today when oral arguments are presented before the Supreme Court, Janus v. AFSCME, you're going to want to follow the outcome of that case, which will be decided this term, meaning by the end of June. Pat, thanks so much for joining us, appreciate it. Hughes: Thank you for having me.