A group of nine Republicans currently serving in the Illinois General Assembly, including two rookie state lawmakers, have signed their names to a brief filed with the U.S. Supreme Court, asking the court to uphold the state’s ability to allow unions to extract fees from government employees who don’t wish to join a union, arguing the country’s founding federalist principles should allow the 50 states to decide such policy questions for themselves.
On Jan. 19, the lawmakers signed their names to an amicus curiae, or friend of the court brief, filed by counsel for the Constitutional Accountability Center, a Washington, D.C.-based “think tank, law firm, and action center dedicated to fulfilling the progressive promise of our Constitution’s text and history,” according to the organization’s website.
The brief is one of 40 amicus briefs filed since Jan. 18, mainly by unions, state and local government officials in Illinois and elsewhere in the U.S., academics, progressive political groups and religious organizations, asking the court to reject the attempt by a non-union Illinois state worker to overturn a state policy - and in the process, a longstanding Supreme Court precedent - permitting a union, which purports to act as his collective bargaining representative, to deduct fees from his paychecks.
On Feb. 26, the U.S. Supreme Court is slated to hear arguments in the case against two labor unions, the American Federation of State, County and Municipal Employees (AFSCME) and the Teamsters. The lawsuit, originally filed by Illinois Gov. Bruce Rauner, but now led by state employee Mark Janus, asserts the state law and policy allowing those unions to collect fees from non-union workers is unconstitutional.
Janus is represented in the action by the National Right to Work Legal Defense Foundation and the Chicago-based Liberty Justice Center.
Supporters of employee choice and the so-called “right to work” have watched the case closely, believing the court could use a decision in the case to shut off some of the flow of money to unions, who they have contended use the money to buy influence with politicians who set labor rules and negotiate contracts, with much of the money being steered to Democratic officeholders and left-wing political causes supported by the unions.
As the court prepares to hear the high-profile, and potentially high-stakes case, many others have lined up to voice their support for the unions in the case, asking the conservative-majority court to reject Janus’ arguments, and uphold the existing precedent, first established in the Supreme Court’s 1977 ruling in Abood v Detroit Board of Education, which had allowed the collection of the so-called “fair share” fees.
Under existing labor law, unions are not allowed to collect dues from non-union workers, as the unions would be free to use those dues to openly fund political activities to which non-union workers may object, violating the non-union workers’ constitutional speech and association rights. However, the courts to this point have said, because the unions’ collective bargaining activities benefit all workers, the unions are allowed to charge non-union workers for their “fair share” of the unions’ negotiating costs.
Janus’ arguments have noted such fees can amount to as much as 99 percent of the dues paid by similar workers who are union members.
Last year, the Supreme Court had the chance to overturn Abood, but deadlocked 4-4 on the question when it was presented to them in a case originating from California. The court had been reduced to eight justices following the death of Supreme Court Justice Antonin Scalia, and the refusal of the Republican majority in the U.S. Senate to consider the nomination of Merrick Garland by former President Barack Obama. The court added a ninth justice this year when the Senate confirmed President Donald Trump’s nomination of Neil Gorsuch. The pick is anticipated to have again given conservatives a 5-4 edge on the court.
With nine justices now in place, the Janus lawsuit would provide the court with a new vehicle to revisit the question.
In the amicus briefs filed since Jan. 18, however, the various organizations, officials and other entities have asked the court to uphold Abood, saying overturning the long-standing precedent would destabilize labor relations and contracts and make it more difficult for state and local governments to deliver services and preserve labor peace, among other alleged difficulties.
Such amicus briefs have been signed by Democratic governors Tom Wolf, of Pennsylvania, and Steve Bullock, of Montana; the attorneys general of the states of California, New York, Alaksa, Kentukcy, Maryland, Connecticut, Maine, Delaware, Hawaii, Massachusetts, Minnesota, Iowa, New Jersey, Rhode Island, New Mexico, Vermont, North Carolina, Virginia, Oregon, Washington, Pennsylvania and the District of Columbia; and the mayors of Chicago and New York, among others.
In Illinois, local officials signing on to such amicus briefs in support of the union positions include county officials in Rock Island, Madison, Jackson, Will, Williamson and St. Clair counties; Champaign Mayor Deborah Frank Feinen; Urbana Mayor Diane Merlin; and Rockford Mayor Thomas McNamara.
The U.S. Conference of Catholic Bishops also filed an amicus brief supporting the Abood precedent, and opposing right-to-work policies in general.
However, in the CAC’s brief, a collection of current and former Republican elected officials and state legislators from Illinois and the states of New York, Delaware, Pennsylvania, Rhode Island, New Hampshire, Washington and Vermont asked the court to reject the Janus case on the grounds of federalism, or the idea that the states should have the right and authority under the U.S. Constitution to set such fair share fee and collective bargaining policies for themselves.
“Overturning Abood and imposing one uniform rule on the entire country would not only cause significant disruption in the many States that use agency fee arrangements, it would also take decisionmaking on this important issue away from the state officials who are best positioned to engage in it,” the CAC and the Republican state lawmakers wrote in their amicus brief.
The CAC amicus brief also called “plainly wrong” Janus’ assertion the First Amendment of the Constitution forbids states from setting such fee agreements with unions. Rather, they said, under the principles of federalism, such fee agreements should be treated as labor relations issues, not questions of individual free speech or association.
“… This Court recognized in Abood that the First Amendment does not require one uniform rule of labor relations for the entire country,” the CAC and lawmakers wrote in their amicus brief. “Rather, deference should be given to the judgments of state policymakers about what rules would be best for their States.”
Illinois Republicans signing the document included state Senator Paul Schimpf, of Waterloo in southern Illinois, and state Rep. Dave Severin, of Benton, each of whom were elected in 2016. The document was further signed by state Sen. Sam McCann, of Jacksonville; state Rep. Norine Hammond, of Emmet Township, near Macomb; state Rep. Christopher Davidsmeyer, of Jacksonville; state Rep. John M. Cabello, of Machesney Park; state Rep. Terri Bryant, of Murphysboro; state Rep. Adam Brown, of Champaign; and state Sen. Neil Anderson, of Rock Island.
Also signing was former state representative and current Elmwood Park Village President Angelo “Skip” Saviano.