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Janus Update After First Day Of Oral Arguments

Why is Gorsuch the only justice who hasn’t asked a single question? Did Justice Kennedy hit the nail on the head when he asked if unions will lose political power if Janus prevails in the case and the attorney representing the union answered “yes?” Rauner was in attendance, but why didn’t he file an amicus brief like other Republican governors? Staff attorney and labor expert for the Illinois Policy Institute, Mailee Smith joins Dan and Amy to discuss.

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Proft: Good morning, Dan and Amy. We're coming to you live from Mueller CPA's in Elgin...Mueller, not Muller. Jacobson: Mueller, yes, Mueller. Like Bueller. Mueller. Proft: Yes. No relation to the Special Counsel, let me make that clear. Mueller CPAs is part of our AM850/Signature Bank Business Tour... Jacobson: At 7:37 we're going to have the managing partner! Proft: Yeah, Dave Nissen, we're gonna talk to. And uh...man, they put out a nice spread for us. Jacobson: I mean, really...I don't want to go home. Because we could have breakfast... Proft: This is how ya live. This is how civilized people live. Jacobson: You could have breakfast, lunch, and dinner here, really. And then you could have dinner drinks, because they have a Bloody Mary bar... Proft: Yeah! Jacobson: ...for you. Proft: This, I mean...CPAs know how to live. Jacobson: They do! And they know how to entertain. This whole conference is great, this whole thing is perfect. Proft: I bet. Yeah, it's all very nice, and then we'll go back to our miserable lives, at 9 o'clock. So yesterday, we talked to Pat Hughes from Liberty Justice Center, oral arguments underway shortly after our show, 10am Central Time, before the Supreme Court, all nine Justices, Janus v AFSCME. This is a followup to the Friedrichs case, that was deadlocked 4-4 after Justice Scalia's untimely passing. And this would, if the court rules in favor of Mark Janus, who is an Illinois state worker, works with the Department of Human Services, would end "Fair Share", would arguably...from one perspective...provide worker freedom, and would really decimate the political power and financial wherewithal of public sector unions. So it's a big case, and that's why you've seen all the national coverage, and it's really a case that germinated in Chicago, with the Illinois Policy Institute and the Liberty Justice Center, Pat Hughes the president of that, that we spoke to yesterday. Today, right now we speak with Mailee Smith, who is a staff attorney and labor expert for the aforesaid Illinois Policy Institute. Mailee, thanks for joining us, appreciate it. Smith: Hi, thanks for having me! Proft: So, with respect to the oral arguments yesterday, you know it's always a dangerous business trying to read the questions and the facial expressions of Supreme Court Justices...but it was interesting to note that the gentleman that replaced Scalia, Neil Gorsuch, didn't ask a single question. He was the only Justice who said nothing throughout the duration of oral arguments. What did you make of that? Smith: Right. You know, I haven't had the opportunity yet to watch him in session, so I wasn't sure what to expect from him. But you know, I think probably staying silent was a good move because no one can latch on to what he said...if he didn't say it! They can't latch on and one side say "Oh, we're going to win!" and the other side say "Oh, they're going to lose!", or whatever the case may be. So I think it was probably just playing it safe and by staying silent, there isn't some kind of crazy media storm, guessing what he intended. Jacobson: Well, what were some of the questions asked by the other Justices? Smith: You know, the rest of the questions really went along the lines that we would have expected, and I thought that Kennedy was definitely one of the most interesting questioners...he pointed out several times the political nature of Union speech. He brought up the fact that, you know, they're advocating for a greater work force, for higher wages, for massive government. And he asked point-blank, "If you don't prevail in this case," to the Union's attorney, "If you don't prevail in this case, are the unions going to have less political influence?" And the attorney answered "Yes." And he says "Isn't that the end of this case? Meaning you just admitted that this is all about political power and you want that money for your political agenda" Proft: And so, they didn't advance the case, they...well, the argument that's often made in the context of political discussions, not so sure legal ones, but the idea that the people that want to opt out of the Union and "Fair Share" are still deriving benefits from the deal that the Union negotiated and so that's not fair. Smith: Umm, that was...that, that subject was discussed. I think the phrase "freerider" might have only come up one time, two times, but really I would say that a good part of the focus was that collective bargaining itself is inherently political. because you're talking about increased wages, higher taxes...all of that is a public concern, and that therefore makes it political. Umm...so the "freerider" argument did come up, but Justice Roberts also brought up the fact that the argument on the other side is the need to attract voluntary payment will make the unions more responsive. It will make them more efficient, more effective, more attractive to a broader group of people, and he said "What's wrong with that?" Umm, so, you know, the typical argument from those who appear to support the Union were made, but there was definitely pushback both ways. Proft: Well, yeah, and it's...so here's another thing too, and this is sort of like you being an Olympic commentator, you're trying to look for things to talk about in addition to the actual substantive legal arguments that we pored over...but one thing that was interesting since you brought Roberts up. His guest, yesterday? Education Secretary Betsy DeVos. Smith: Right, yes I met her, right. Proft: And I don't know, you know, and again here we're trying to do the silly work of pundits and interpret something in that. But is there anything to the selection of guests and does that maybe portend where Roberts is coming from? I mean, Betsy DeVos is obviously a free marketeer when it comes to Education reform, and so ostensibly a K-12 education would be very different in a world with no "Fair Share" for the Teacher's Unions. Smith: Yeah, it was interesting...it was interesting to see her there, but I wouldn't venture to guess why she was picked. It could be that this was the day that worked out for her schedule, she was going to come someday, this day worked. You know, I don't think I would guess what...why she was there at that particular day. Jacobson: Well, speaking of guests, Governor Rauner was there, and according to the Sun-Times he launched this case, the Janus v. AFSCME. Is there any truth to that, or is that fake news? Smith: Well, Would he...he is the one who, you know...he had an executive order about this issue, he did file a case, but he was dismissed from the case very early on. Mark Janus was brought into the case by LJC, Liberty Justice Center, and they were...he was LJC's client, and they are the ones who have carried this case along with National Right to Work Legal Defense Foundation. So the Governor has been absent from this case pretty much from the very beginning. Proft: And he had an opportunity to participate with an amicus brief, other states did, he chose not to. Smith: That's right, right. And on the other hand, Lisa Madigan DID file a brief. Proft: Yes...for AFSCME, not for Janus! Smith: Right! Exactly. Jacobson: What side is Governor Rauner on? Because you never know. Proft: You never know. Here's the thing...well...speak to us a little bit about Mark Janus, i mean you know he has gotten a little bit of profile certainly in DC this week, but just as...he's a State of Illinois worker, a Human Services caseworker, I think from what I've seen of him, he has performed really admirably! He's performed very well under this kind of national press scrutiny on this case. Smith: Definitely! Right, definitely a lot of pressure. Mr. Janus, he's a Child Support Specialist with the State of Illinois, and you know, he loves his job. But he doesn't want to see...he doesn't want the unions to force him to support causes that he doesn't agree with. And that's really what the crux of this case is all about, it's about fairness and First Amendment freedoms. But for 40 years, government workers like Janus have been forced to make this decision; you either pay fees to the union or you lose your job. And it doesn't matter if they agree with the politics or the policies of the Union...they may not agree with the way that the Union is representing them, but they're still forced to pay these fees. And you're right, Mr. Janus has been an excellent face for this case, he's...he has definitely proven to be respected under pressure, and we look forward to seeing what this case does for him. Proft: All right, she is Mailee Smith, she is a staff attorney and labor policy expert for the Illinois Policy Institute. Mailee, thanks for joining us, appreciate it. Smith: Thanks so much!

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