The U.S. Supreme Court’s June decision in the Janus v. AFSCME case that public employees couldn’t be compelled to pay union dues was widely seen as a game-changing moment in U.S. politics.

The coverage on The Atlantic website was typical. It called the decision, which stemmed from a lawsuit brought by Illinois state employee Mark Janus, a “huge blow” to public sector unions and suggested the decision had the potential to “end” such unions in America.

But five months later, the experience of the most powerful public employee union in the nation’s largest state undercuts the assumption that Janus would take a quick toll on unions’ clout. In supporting Assemblyman Tony Thurmond, D-Richmond, for state superintendent of public education against Marshall Tuck, the California Teachers Association spent $16 million as of Oct. 31 – $5 million more than it did in the entire 2014 superintendent election, where the union supported incumbent Tom Torlakson over Tuck, a former Los Angeles school executive with deep support from charter school advocates and a loose coalition of tech billionaires.

Torlakson narrowly defeated Tuck. This election, Tuck and Thurmond have been trading the lead in recent days. With millions of votes yet to be counted, no journalism organization has called the race.

The CTA does not issue regular updates on its membership status. But a recent Sacramento Bee analysis suggested that the union, as in previous years, had 90 percent membership among the 325,000 teachers it represented. So while it’s lost dues from the 10 percent of teachers who reject union membership, the CTA still collects more than $150 million in dues annually – making it the most powerful force in the California Democratic Party.

Union clout to be tested in coming fight over funding

The extent of the CTA’s clout is likely to be tested soon – whether Thurmond or Tuck is elected. That’s because both have said they oppose one of Torlakson’s most controversial, union-favoring decisions: His 2015 announcement that the extra funding going to schools with disproportionate numbers of English learners, foster children and impoverished students could be spent on general needs, such as raises for teachers.

Torlakson’s decision, which overrode a directive from a lower-ranking official in the state Department of Education, spurred outrage in education reform circles. The Local Control Funding Formula – the 2013 state law changing how districts were allocated state dollars – had been pitched as creating a lock-box of dollars that would be spent only on helping underachieving students.

But Torlakson’s decision had the effect of turning the local-control funding into a de facto block grant. Many districts have used the funds for employee raises.

If Thurmond or Tuck revive the lock-box theory of how the funds can be spent, that’s likely to create huge headaches for most school districts, which have received an average of $8 billion a year in local-control dollars since the law took effect.

Newsom close with both teachers unions and reformers

A key factor in the coming fight over funding is the position taken by Gov.-elect Gavin Newsom, who was strongly backed by the CTA but is also friends with the tech tycoons who want education reform. The governor’s control over parts of the Department of Education’s budget gives him a powerful lever to use on the state superintendent.

On the campaign trail, Newsom said teachers are underpaid and schools are underfunded. But he’s also rejected Gov. Jerry Brown’s claim that education reform is a “siren song” in which trends come and go but schools never get better. In interviews, Newsom has noted the success of education reform in union states like Massachusetts and New Jersey.

It’s unclear when the count of the Thurmond-Tuck vote will be complete. But the recent statewide election with the most parallels to the race offers encouragement for Thurmond, a former social worker.

In the 2010 attorney general’s race, Los Angeles District Attorney Steve Cooley, a Republican, took such a substantial early lead over San Francisco District Attorney Kamala Harris that the San Francisco Chronicle pronounced him the winner on election night. But as millions of provisional and late ballots were counted, the tide turned steadily toward the union-backed Democrat. Three weeks later, Cooley conceded when Harris’ lead topped 50,000 votes. Harris ended up winning by more than 74,000 votes – about 1 percent of total voters.

As the court hears oral arguments, the challenge has made “unions which represent government workers deeply fearful for their financial future and their public stature,” SCOTUSblog noted. “A significant blow to their treasuries could come if non-union workers are able to turn broad hints by the Supreme Court into final victory in Friedrichs v. California Teachers Association.”

In the case, California teacher Rebecca Friedrichs sued the California Teachers Association over fees she must pay even though she is not a member of the union. “Teachers who, like Friedrichs, have opted out of the union are still represented by it in various contract negotiations, which is why they are required to pay a fee,” the Atlantic noted. “In California, members pay annual dues that average about $1,000 a year, while non-members pay about $600 to $650 for the agency fee alone.”

A landmark challenge

At stake is whether unions are constitutionally permitted to extract dues spent on speech opposed by dues-paying members like the plaintiffs in Friedrichs. “Here is their logic: because unions cannot charge non-members for political activity and since non-members argue that everything a public-sector union does — even bargaining — is political in nature, it follows that any fees violate their First Amendment right not to pay for activity to which they object,” according to the website.

If the court rules in their favor, they will have overturned a 1977 decision allowing the collection of what were deemed “fair share” fees. “Twenty-three states authorize collecting these fees from those who don’t join the union but benefit from a contract that covers them,” NPR reported. Currently 9 percent of teachers have not joined the CTA, the station added. According to state law, however, “any union contract must cover them too, and so they are required to pay an amount that covers the costs of negotiating the contract and administering it. The idea is that they reap the bread-and-butter benefits covered by the contract — wages, leave policies, grievance procedures, etc. — so they should bear some of the cost of negotiating that contract. They do not, however, have to pay for the union’s lobbying or political activities; they can opt out of that by signing a one-page form.”

Political posturing

In one of the arcane twists now familiar to watchers of the court, where sharply divided justices sometimes rule in atypical ways for idiosyncratic reasons, union hopes have been pegged on Justice Antonin Scalia, the resident conservative firebrand. Justice Samuel Alito, whose legal reasoning conservatives often find more reliably conventional, has been viewed as the linchpin of a ruling against the CTA. “A majority opinion by Alito in 2012 suggested the fees were constitutionally vulnerable, and another decision in 2014 stopped just short of overturning the 1977 decision — a ruling that rests on ‘questionable foundations,’ Alito said for a 5-4 majority,” according to the San Francisco Chronicle.

Perhaps predictably, unions and their liberal or progressive supporters have cast the case as the latest and most audacious effort by a wide-ranging alliance of monied interests, spearheaded by the Center for Individual Rights, to break the back of organized labor. For decades, conservatives and libertarians have arrayed themselves broadly against labor unions, which have grown more narrowly partisan in their support of Democrats and the open-ended expansion of public benefits for members and themselves. “Still, unlike the Koch political network and its plans to shape the presidential campaign, it is difficult to find evidence of a single coordinating body that has directed money toward the Center for Individual Rights and its legal campaign to allow public employees to opt out of union fees,” the New York Times observed.

“[Justices will] hear arguments over whether the union can require payment from teachers it represents in contract talks. The justices could support the status quo or issue a ruling that only changes payments to CTA. Union leaders everywhere fear, however, a broader decision that would squeeze their own treasuries and diminish public labor’s political clout at all levels of government.”

Under that ruling, employees may get a refund on dues specifically identified as going for political purposes. But attorneys for Rebecca Friedrichs argue that the CTA’s history shows all its dues are essentially used for political ends. Friedrichs opposes much of the CTA’s agenda, starting with the union’s strong support of far-reaching teacher job protections and the relatively quick granting of tenure.

The case has the potential to shake up California’s political climate. The CTA and the California Federation of Teachers give more money to candidates and causes than any other entity and are considered to have more influence over the state Legislature than any other groups. Based on what’s happened in other states, the CTA and CFT could lose one-third of all dues if Friedrichs succeeds and mandatory assessments are no longer allowed.

‘Not if, but when’ present law is overruled

What’s striking about this case is that the CTA appears to already assume it’s going to lose. In July of last year, the union distributed a 23-page memo discussing a post-Friedrichs world at a meeting of local district union leaders. Its title: “Not if, but when: Living in a world without Fair Share.” (“Fair Share” is how the CTA describes the law mandating all teachers pay “agency fees.”)

The memo ends with an upbeat tone:

CTA Will Be Ready!

 

Over the years, CTA has responded to many attacks and crises that have threatened to dismantle our organization and our core belief that every child in California deserves a first-class education. By and far, we have prevailed because of the organizational strength of our membership, the efforts of our talented staff, and our shared commitment to our mission to protect and promote the well-being of our members and to improve the conditions of teaching and learning in California.

 

Planning, organizing and preparedness will ensure our continued organizational strength and survival and help us adapt to an ever-changing environment.

Nevertheless, the reasons for the CTA’s fatalism are plain. Friedrichs v. CTA got to the Supreme Court in much speedier fashion than many cases. At least four justices supported bringing it before the high court for review, and one has already made his views plain:

Twice, Associate Justice Samuel Alito has stated in opinions of recent years that Abood v. Detroit Board of Ed., the 1977 case that established the constitutionality of fair share fees, was shaky. In a 2014 opinion in Harris v. Quinn, Alito said that precedent was “questionable on several grounds.”

That’s from Politico.

…. use the case, Harris v. Quinn, to strike down laws in 26 states requiring teachers, police officers, firefighters and other public-sector employees to pay dues to the unions that negotiate contracts on their behalf, even if the workers don’t want to become union members. …

How bad could the Supreme Court decision be for unions? Consider that in the two years after [Wisconsin Gov. Scott] Walker ended compulsory union membership in his state, the American Federation of Teachers lost 65 percent of its statewide members and the National Education Association shrank by 19 percent. Other public-sector unions also took big hits, with revenue plunging by 40 percent or more.

Instead, the ruling was limited in scope, per AP:

WASHINGTON (AP) — The Supreme Court dealt a blow to public sector unions Monday, ruling that thousands of home health care workers in Illinois cannot be required to pay fees that help cover the union’s costs of collective bargaining.

In a 5-4 split along ideological lines, the justices said the practice violates the First Amendment rights of nonmembers who disagree with the positions that unions take.

But if this wasn’t the bombshell that some expected, it still could have major impact in California, where 400,000 state-paid in-home care workers are represented by the SEIU. This month, they’ve been celebrating a huge victory. The state budget for the fiscal year starting Tuesday for the first time allows them to receive overtime.

But we can expect efforts prompted by today’s Supreme Court ruling to get these workers to opt in to union coverage. These efforts could well succeed. As the Wisconsin numbers cited by Politico show, a lot of union-represented workers don’t much like unions.

Alas, the mainstream media coverage of the report features the usual superficiality. There’s no context — no noting that most economists consider heavy taxes a drag on the economy, or that conservative think tanks have documented how California’s tax and regulatory culture is a big reason the Golden State has the nation’s worst poverty rate.

There’s also no contrasting of California and New York. In the Empire State, the liberal governor actually has the intellectual honesty to admit higher taxes damage job creation — and he wants to do something about it. Can we trade Jerry Brown for Andrew Cuomo?

A liberal state with lower taxes than Texas

There’s also this interesting angle: Whenever a libertarian or conservative grouses about how high taxes are in California, a liberal will sneer something along the lines of, “Well, why don’t you go to Texas/Mississippi/Alabama? Low taxes and such a great, great, great lifestyle.”

But it’s not just allegedly benighted Southern states that have far lower taxes than California. For the most striking example, consider Washington state. Its average annual state and local tax tab, according to the new survey, is $3,823. California takes in 150 percent more! Texas takes 34 percent more!

Do Californians have vastly better services than Washington staters? Of course not. Also, most “quality of life” indices put Washington far ahead of California.

One reason WA avoids traps seen in CA: ‘paycheck protection’ law

Why might this be? A key factor is that Washington state voters adopted a law requiring that union members give permission before their dues are used for political advocacy. I wrote about it here:

“Six states have adopted such a reform. Easily the most liberal of the six is Washington, where voters adopted this requirement as part of a popular campaign-reform push in 1992 that was opposed by unions but supported by many union members.

“What followed was a relentless 15-year campaign of subterfuge and sabotage by unions and their Democratic allies in Washington’s legislature and court system. But in 2007, the U.S. Supreme Court cleared the way for implementation of the law following its original intent.

“Since then, the politics of the state have evolved in interesting ways. While voters embraced gay marriage and the legalization of marijuana in 2012 initiatives, they are increasingly represented by more pragmatic and less ideological Democrats. In spring 2012, such Democrats teamed with minority Republican senators to pass a fiscally conservative state budget. Later in the year, two Democrats decided to caucus with minority Republicans in a coalition running the state Senate in an attempt to force a more centrist course for Washington, which has had Democratic governors continuously since 1985.

“Perhaps these moderating developments would have happened without paycheck protection. But they would have been less likely. In Washington state politics, the same as everywhere, money talks.”

Here’s another survey placing Washington at the low end of taxation.