Illustration by Ryan Smith
Is the Supreme Court inviting a "Pandora's box" of unintended consequences by ruling with Janus?
At a time when public-sector union advocates are sounding alarm bells due to the Supreme Court's impending ruling on Governor Bruce Rauner's pet anti-union lawsuit Janus v. AFSCME
some local unions and their members are quietly fighting back with legal action of their own.
In late February, the International Union of Operating Engineers Local 150
, based in Countryside, Illinois, filed consecutive federal lawsuits and assisted on a third in Wisconsin. (The union is an investor in Sun-Times Media, the parent company of the Reader
.) They're meant to send a collective message to the SCOTUS: If you side with Illinois governor Bruce Rauner and other conservatives against unions in this case, you open what Ed Maher, a spokesperson for the International Union of Operating Engineers, calls "a Pandora's box of unintended consequences."
"We're hoping the court will consider [our arguments]," said Maher. "We hope that the court will rule based on merits of the law itself and not political partisanship."
Janus v. AFSCME
was spearheaded by Rauner, who has long put hobbling unions near the top of his to-do list. One of his first actions as governor was issuing an executive order
in February 2015 that aimed at imposing "right-to-work" rules on public employees, then filing a preemptive federal lawsuit that sought to have his decision declared legal. The Illinois courts dismissed Rauner from the suit but allowed it to be fronted by Mark Janus, a social worker for the state of Illinois. Janus sued the American Federation of State, County, and Municipal Employees Council 31 using the First Amendment to argue for the right to refuse to join AFSCME and pay fair-share fees to cover the cost of representing him.
The case went to the nation's highest court this week, with the justices hearing oral arguments on Monday. Perhaps it was the prospect of a Janus victory that made Governor Rauner giddy enough to make his first official visit to Washington, D.C.
, since taking office. On Sunday he took to the nation's capital to visit the Trump White House, and on Monday he listened to the Supreme Court's arguments on the case the governor said in September would be "transformative for the state of Illinois, transformative for America and the relationship between our taxpayers and the people who work for our taxpayers."
There's a good chance Rauner will have his wish. Now that Trump appointee Justice Gorsuch has tipped the court toward conservative causes, legal experts predict that the SCOTUS will eventually rule five to four in favor of Janus. "I'm highly confident" about the outcome, Rauner said in December
. "With Gorsuch at the Supreme Court, we believe we will prevail." Such a decision would end compelled union dues for public employment in 22 states—including Illinois—and turn them into what conservatives like to call "right-to-work" states.
That's partially why on February 21, engineer Dixon O'Brien and his union, Local 150, issued a suit
against the Chicago suburb of Lincolnshire. The suit objects to village officials using taxpayer dollars to fund a statewide lobbying group, the Illinois Municipal League, which supports Rauner's anti-union "Turnaround Agenda." Lincolnshire was also the only unit of local government in Illinois to adopt a local right-to-work zone, according to the suit. O'Brien essentially uses the free-speech grounds of Janus's argument against it—saying he objects to the use of his tax money to fund private organizations that "engage in other political activities that run directly against his economic interests and his political beliefs."
It's similar in argument to the federal lawsuit filed on the next day
, February 22, in which James M. Sweeney and Local 150, based in Countryside, filed a federal suit against Rauner, attorney general Lisa Madigan, and Kimberly Stevens, executive director of the Illinois Labor Relations Board. The suit alleges that Rauner's executive order and federal lawsuit leading to Janus v. AFSCME
was "impermissible" and that it violated its members First and 14th Amendment rights.
The suit says that the Janus claim that it violates the First Amendment right of a nonmember to be forced to pay union dues that are required by law to provide representation and services, that in turn unions and their members would also suffer the same infringement of their First Amendment right to freedom of speech and association.
"...It equally violates the rights of the union and its members to require them to use their money to speak on behalf of the non-member. This is so because the right to speak and the right not to speak are two sides to the same coin."
The third federal suit
came on February 23, filed by the International Union of Operating Engineers Locals 139 and 420 against Wisconsin governor Scott Walker. It challenges a law he signed in 2011 that greatly restricts public employee collective bargaining rights.
All three of these cases, says Maher, are about making the government face the consequences of ruling with Janus. That if he doesn't have to pay his agency fees because collective bargaining is speech he disagrees with, that makes the very act of collective bargaining—speech. And therefore can't be restricted. In other words, Janus
unintentionally argues for unions' right to free speech.
"If this is the way the Supreme Court rules, it will be hard to limit free speech of unions," Maher says. "This Janus
case has been presented [by conservatives] as providing workers with a choice, but they already have a choice not to pay for the political speech of unions. This is the choice to get collective bargaining and not having to pay for it—something for nothing."