WSJ Lines Up Behind Conservative "Web Of Dark Money" Pushing SCOTUS Case To Weaken Public-Sector Unions
The Wall Street Journal's editorial board predictably lined up behind the conservative establishment's interests by arguing in favor of a Supreme Court decision that would deal a blow to unions representing teachers, social workers, EMTs, firefighters, and other public employees.
On January 11, the Supreme Court heard oral arguments in Friedrichs v. California Teachers Association, a case calling into question a California state teachers union's right to charge an "agency fee" or "fair share fee" to non-members who benefit from the union's collective bargaining efforts despite not paying full membership dues. Media have noted that if the case results in the court overturning a previous decision, it would weaken all public-sector unions -- and a "who's who" of conservative anti-union backers have been instrumental in bringing it before the Supreme Court as quickly as possible.
The "agency fee" principle was established in a 1977 Supreme Court case, Abood v. Detroit Board of Education, and was designed to prevent non-union employees from freely enjoying the substantial benefits negotiated by unions on behalf of their members. This so-called "free rider" problem would otherwise force unions to operate on smaller budgets but continue to bargain and organize on behalf of the same number of people. As The Atlantic reports:
Under federal law, if a majority of employees decide to form a union, the union must represent all employees for bargaining purposes. But if some people decide not to join (whether because of genuine political disagreement or merely to save money on the fees), the union has less leverage because it represents fewer members. It also has less money to pay for the things that keep it strong, like bargaining and organizing. But it still has an obligation to do things such as bargaining and organizing since, in many states, public employers are required to bargain with unions.
The Supreme Court's most recent decision on agency fees in the 2014 case Harris v. Quinn, which the Wall Street Journal also advocated for and celebrated, signaled the conservative majority's desire to revisit and potentially overturn Abood, and thus decades of labor law that are "vital to the very concept of public employee unionism" -- an opportunity Friedrichs now provides.
Of course, the Wall Street Journal predictably jumped at the chance to fall in line with conservative interest groups pushing for a case like Friedrichs that could give the court -- in particular, Justice Samuel Alito, who seemingly asked for such a case in his Harris opinion -- the chance to overturn Abood. On January 10, the Journal's editorial board celebrated Friedrichs as "a rare and splendid opportunity to repair damage to the First Amendment done by the Court itself" -- at best, minimizing the implications for public-sector unions and public employees and, at worst, enjoying the prospect that institutions of organized labor could be dealt a serious blow with the decision. The editorial pushed several incorrect claims related to the case before concluding that Abood ought to be sent "to the mistake file" with the Friedrichs decision:
But as the teachers point out, collective bargaining in government is impossible to separate from matters of ideological speech. For public teachers, collective bargaining involves wages and benefits that inevitably implicate fiscal policy and the tax burden. It also includes such controversial political matters as teacher evaluations and tenure. Individual teachers who object to the union's positions on these issues must nonetheless subsidize them.
In her dissent in Harris, Justice Elena Kagan justified this state coercion for unions on grounds that the government has an interest in labor peace. But no great harm to the state or the public is caused by letting teachers exercise their free-speech right. The union won't vanish, or even lose its monopoly bargaining power. It will merely have less money to spend to influence politicians.
The board claimed that "no great harm to the state or the public" would result from a decision overturning Abood, and that the California teachers' union "won't vanish, or even lose its monopoly bargaining power," but would "merely have less money to spend to influence politicians."
The Journal's anti-union argument managed to be wrong on just about all counts: research shows that unions are severely weakened when they are no longer allowed to charge agency fees for collective bargaining activities, and the economy suffers as a result. In so-called "right-to-work" states, where unions cannot charge agency fees, unions have notably decreased in size and potential leverage, and public employees are earning less and enjoying fewer benefits. And as economist Larry Mishel, president of the Economic Policy Institute, points out, "a decline in unionization on the national level has caused wage stagnation, growing inequality, and the overall slippage of the American middle class."
The Journal also mischaracterized the premise of agency fees, arguing that paying such fees requires public employees who do not agree with a union's political stances to "nonetheless subsidize them." The Abood decision establishing agency fees prevents exactly that, drawing a distinction that limits agency fee revenue to subsidize only collective bargaining activities, not political advocacy. The Journal's claim ignores that distinction to back the plaintiff's flawed argument that all union activity constitutes free speech -- even bargaining and organizing that directly benefit employees and prevent costly, escalated labor disputes.
The Wall Street Journal's factually challenged opinion on the Friedrichs case should come as no surprise; the Journal has a long history of advocating for measures that would weaken organized labor, and members of its board are tied to the "web of dark money" responsible for pushing Friedrichs to the Supreme Court.
The plaintiffs in Friedrichs, ten California public school teachers, are represented by conservative legal group the Center for Individual Rights (CIR), a pro-bono legal organization known for its work on cases dismantling affirmative action and civil rights protections, with donors connected to "the web of dark money" associated with anti-labor billionaires Charles and David Koch. CIR attorneys declined to argue the case in lower courts, instead pushing for the courts to issue decisions that would allow the case to move exceptionally quickly to the Supreme Court level. The CIR's funders constitute "a who's who of the right's opposition to organized labor." As The American Prospect reported:
Koch-linked groups known to have made grants to CIR, according to the Center for Media and Democracy, include DonorsTrust, the Donors Capital Fund, and the Claude R. Lambe Charitable Foundation. Other CIR funders belong to the Koch donor network. Among them are the Dick and Betsy DeVos Family Foundation, as well as the Lynde and Harry Bradley Foundation, which was instrumental in the legislative attack on labor in Wisconsin...
Think tanks and groups that receive either direct funding from Koch entities or are linked to the Koch brothers' funding network also filed amicus briefs in favor of the Friedrichs plaintiffs. They include the Cato Institute, the National Right to Work Legal Defense Fund, and the Mackinac Center, a major force behind the 2012 anti-union legislation enacted in Michigan.
According to journalist Laura Flanders, earlier in its history CIR also enjoyed the support of the Pioneer Fund, a white supremacist organization devoted to the promotion of eugenics.
It's clear the "phony grass-roots support" behind Friedrichs is well-funded by the anti-labor conservative establishment, and propped up by research written by institutions and individuals receiving that funding. The Wall Street Journal editorial board's flimsy argument to overturn Abood may be no exception -- several members of the board have received large grants from the Bradley Foundation, one of the foundations involved in Wisconsin's "right-to-work" push in 2014 and a funder of the CIR. According to the Center for Media and Democracy, two of the foundation's annual $250,000 "Bradley Prizes" for journalism were awarded to Wall Street Journal columnists in 2014 -- one of whom sits on the paper's editorial board. In 2010, Paul A. Gigot, the editorial pages editor at the Journal, also received the Bradley prize.