While it may not be immediately apparent, Donald Trump’s victory in last week’s presidential election has deep implications for the balance of political power in California. Because of his win, there could soon be a fifth vote on the U. S. Supreme Court – again – to conclude that teachers at California public schools can’t be compelled to pay union dues to the California Teachers Association in support of political activities with which they disagree.

These dues have made the CTA arguably the most powerful force in state politics, able to win passage of bills increasing taxpayer funding for the state teachers’ pension system, protecting teachers’ jobs and making it difficult for their performance to be evaluated. A Fair Political Practices Commission report found that the CTA and affiliated entities spent $212 million to influence state politics from 2000-2009. Dues vary but are generally around $1,000 a year for the CTA’s 325,000 members.

At a January hearing in the Friedrichs v. CTA case, five justices – conservatives Antonin Scalia, John Roberts, Clarence Thomas and Samuel Alito and libertarian swing voter Anthony Kennedy – appeared poised to allow teachers to opt out of CTA dues.

But in February, Scalia died. In March, the court deadlocked 4-4 on the case, and in June, it declined to hear the case again in the term that began in October.

Trump has promised to appoint a justice with Scalia-like views as his replacement. That presumably would mean five votes to put limits on what public employee union dues could be used for.

Are dues solely used for collective bargaining or not?

The case was brought in 2013 by the libertarian-leaning Center for Individual Rights on behalf of Rebecca Friedrichs, an Orange County schoolteacher (pictured above), and other teachers who object to the CTA’s agenda and reject the claim that their dues were being used for “collective bargaining” purposes only.

The center is expected to start the ball rolling again for a new federal trial, and eventual Supreme Court review, in coming months. It’s not clear whether Friedrichs will again be the plaintiff, but there’s a broad assumption that the CTA — labelled “the worst union in America” by conservative publication City Journal — will again be the target.

As California Lawyer magazine detailed last year, conservative federal judges — not just those on the Supreme Court — seem eager to expedite the challenge to union members’ objections to political uses of their dues. Both trial court and appellate judges went along with plaintiffs’ request that the Friedrichs case be rejected based on precedent — specifically, Abood v. Detroit Board of Education, a 1977 Supreme Court ruling upholding compulsory union dues. This request was made to get the case before the high court as soon as possible.

There is little doubt that several justices are eager to scrap the precedent.

At the January hearing on the Friedrichs case, Kennedy ridiculed the argument that compelling teachers to pay union dues that were used to advocate political views they didn’t share was no big deal because those teachers could advocate for their views in other ways.

The contention that upholding Friedrichs’ challenge would destroy public employee unions also was subject to sharp challenge by justices who noted that federal employees’ unions didn’t charge “agency fees” but were able to effectively bargain on pay and benefits.

The four justices who voted to reject the Friedrichs case and side with the CTA criticized what they saw as an unseemly eagerness to reject long-held precedent. They noted that the Abood case’s finding had been challenged repeatedly over the last four decades and had only faced high court doubts in recent years.

“Sidestepping a potentially radical change for public employee unions, a deadlocked U.S. Supreme Court on Tuesday declined to topple the ability of organized labor to continue to collect dues from government workers who oppose being forced to pay fees to cover collective bargaining costs,” the San Jose Mercury News noted. “In a one-line order, the Supreme Court handed down a 4-4 ruling that effectively let stand lower court decisions backing the California Teachers Association in the closely-watched case.”

“At a time when public employee unions are under political attack in states such as Wisconsin and New Jersey, the California clash was considered a crucial showdown for organized labor and its political wallet. California teachers who support their union’s political influence have been clearly worried about the outcome in the Supreme Court, where a number of conservative justices in recent years have expressed doubt about allowing states to require fees from reluctant nonunion members.”

Political shock waves

The result drew sighs of relief from Democrats and howls from Republicans. The two parties have grown increasingly polarized around the issue of public-sector unions, which Republicans have blamed for busting state budgets and funneling cash almost exclusively to Democrats. “The case involves only public-employee unions — not private workers — but those unions are the strongest segment of an organized labor movement that is increasingly tied to the Democratic Party. At the same time, Republican governors across the nation have become embroiled in high-profile battles with the public-employee unions in their states,” the Washington Post reported.

An uncertain future

The case had become a rallying point for state Republicans in search of a bright spot this election season. “Rebecca Friedrichs, the Orange County teacher who brought Friedrichs v. California Teachers Association, received the county GOP’s Torch of Freedom award at the political group’s Lincoln Reagan Dinner at the Hilton Bayfront on Saturday,” as U-T San Diego reported.

Friedrichs, an Orange County public school teacher, “said she resigned from the California Teachers Association over differences but was still required to pay about $650 a year to cover bargaining costs,” according to Fox News. “In Abood, the court said public workers who choose not to join a union can be required to pay for bargaining costs if the fees don’t go toward political purposes.”

For their part, Democrats have claimed that anti-labor activists want nothing less than to render unions incapable of affording their basic function as collective bargainers. “Organized labor considered it the most vital Supreme Court case of the year, and one of a clutch of politically charged cases that puts the justices in the spotlight as the nation turns its attention to the elections of 2016,” the Post observed.

The split decision left labor law poised on a razor’s edge. Although the court “had raised doubts about the viability of the 1977 precedent, Abood v. Detroit Board of Education,” that authorized the “fair share fee,” “it stopped short of overturning it in two recent cases,” as Fox News noted. Now, court watchers have begun to doubt whether the justices who would alter or scrap the rule will ever be capable of cobbling together the five votes necessary to do so. President Obama, who has settled on a candidate to replace Justice Scalia, hopes to force the hand of Congressional Republicans this year and replace what had been a relatively reliable “conservative vote” on the court with a more liberal one.

But not all teachers want to pay that much; 12,212 teachers in 2014 opted for “fee payer” status, which docks them around $650 a year.

The fees are supposed to cover only non-political activities, like hammering out contract agreements. Those opting out of the union, despite paying the fee, are ineligible to vote in union matters.

Wherever it goes, the money represents an estimated $7.8 million annually for the California Teachers Association, and many feel that it is being extracted from the unwilling.  

Which means that a victory in the legal crusade of teacher Rebecca Friedrichs to overturn the mandatory assessments would inflict a heavy hit on the union, which collects and uses the money. Given the choice, some teachers currently paying the $1,000 a year would forego any payment if it were not mandatory, diminishing the union’s power.

Friedrichs v. California Teachers Association, which was heard by the U.S. Supreme Court Jan. 11, has drawn 57 amicus filings, or documents in support of one of the two parties. Most of the filings offer legal opinion or expertise, and the originators break down along the lines of conservative and liberal.

The filers in favor of Friedrichs include 17 Republican attorneys general led by Michigan’s Bill Schuette, the Goldwater Institute and former California Gov. Pete Wilson.

Those supporting the teachers association include the state of California, the California School Employees Association and the Obama administration.

What’s at Stake

The plaintiffs seek to overturn a 1977 Supreme Court decision, Abood v. Detroit Board of Education, which allows the fees to be taken against the will of the employee.

“Abood failed to recognize the full extent to which teachers unions advocate positions during collective bargaining on intensely divisive public-policy issues, some of which — from the perspective of nonmember teachers — are harmful to both teachers and students,” reads the filing on behalf of Wilson.

The state’s school employees association contends in its amicus filing that “the essence of exclusive representation is that the union represents, and speaks for, all unit employees on employment issues pertaining to wages, hours, and terms and conditions of employment (hence the term “collective bargaining”) … the characterization of union representational activity as per se ‘political advocacy’ or ‘influencing public policy’ is so far outside the real world of public school employment and labor relations as to be ludicrous.”

RELATED: Read the transcript of the oral arguments here and listen to the arguments here.

According to one analysis, .08 percent of CTA political money went to Republicans between 2003 and 2012.

Since 1997, the association has donated $184 million to 583 filers, 50 of them Republicans, according to the National Institute on Money in State Politics. The top individual recipient is Gov. Jerry Brown, who has taken $3.25 million from the association. The union group also spent $3 million to help Brown defeat Meg Whitman in the 2010 gubernatorial race.

It spent $21 million in 2012 to defeat the unsuccessful Alliance for a Better California ballot measure, which would have ended payroll deductions for political activism.

It has also given money to other unions, including the Los Angeles County Federation of Labor and a Nevada measure backed by teachers unions to require additional funding for public schools.

The union also receives money from offshoot groups, including the California Teachers Association for Better Citizens, which donated $1.5 million in 2010 to its independent expenditure arm, and Teachers and Families Supporting O’Donnell for Assembly 2014, which backed the successful campaign of Assemblyman Patrick O’Donnell, D-Long Beach,  a public school teacher seen as a political ally of the union.

The union has 65 paid staffers, including two staffers working full time on political issues – one at a gross salary of $138,087 and another at $105,004 – and three others who spent 80 percent of their time on political activities, the union’s most recent federal filing shows.

“Every year, petitioners are required to provide significant support to a group that advocates an ideological viewpoint which they oppose and do not wish to subsidize,” Michael Carvin, an attorney representing Friedrichs and her co-plaintiffs told the Supreme Court justices in his argument Jan. 11. He said the problem was not that the union was the sole representative of the workers, but that the workers were forced to subsidize the union’s political positions.

In his argument, Edward DuMont, representing the state, said that the union had to be funded and not by the state. “It’s very important that we do not fund it directly and that we not be perceived as controlling the speech of that representative.”

Union Influence Under Pressure

The decision by the Supreme Court “may mark a sea change in the way in which we understand labor law going forward,” Richard Epstein, a law professor at New York University School of Law, said in a post-argument podcast.

Epstein’s analysis explains that the five conservative justices regarded the plaintiffs  as “‘compelled riders’ who are obligated to pay fees to a union even if they felt they were better off without a union “even if the union offered them membership for free.”

It’s the opposite of what the union has referred to as free riders, who reap the benefits of a union without paying a full price, he said.

Epstein predicts that Abood will be overwritten in a 5-4 ruling with the conservative justices prevailing, and “the agency shop will be ended on constitutional grounds.”

Steve Miller can be reached at 517-775-9952 and avalanche50@hotmail.com. His website is www.Avalanche50.com