On this week’s episode of 5-4, Peter (@The_Law_Boy), Rhiannon (@AywaRhiannon), and Michael (@_FleerUltra) are joined by special guest Sam Bagenstos, professor at the University of Michigan Law School, to discuss a case that made it harder for unions to collect fees.
A podcast where we dissect and analyze the Supreme Court cases that have clogged up the American spirit, like cholesterol in our collective aorta
00:00 [Archival]: With your argument. First this morning in case 16-1466, Janus versus the American Federation of State, County and Municipal Employees. Mr. Messenger...
00:12 Leon: Hey, everyone, this is Leon Neyfakh from Fiasco and Slow Burn. On today's episode of 5-4, Peter, Rhiannon and Michael are talking about labor rights in a case called Janus v. AFSCME, and they brought in a guest, University of Michigan law professor, Sam Bagenstos. Together, they discuss how the Janus case kneecapped public sector unions by limiting their ability to collect dues.
00:33 [Archival]: The Supreme Court has just handed down a decision involving unions.
00:39 [Archival]: And they've ruled 5-4 that states can't force non-union workers to pay union fees.
00:43 [Archival]: But AFSCME says Janus benefits from the union's bargaining even if he's not a member, and unions are already prohibited from using non-member money for political reasons.
00:53 Leon: This is 5-4, a podcast about how much the Supreme Court sucks.
01:03 Peter: Welcome to 5-4, where we dissect and analyze the Supreme Court cases that have clogged up the American spirit, like cholesterol in our collective aorta. I am Peter, Twitter's The_Law_Boy. I'm here with Michael...
01:16 Michael: Hey, everybody.
01:18 Peter: Rhiannon...
01:18 Rhiannon: Hi, how's it going?
01:21 Peter: And our second guest, Professor Sam Bagenstos. Sam.
01:24 Sam: Hey, how are you?
01:24 Peter: Doing great. How are you? Thanks for coming on.
01:27 Sam: Great, thanks for having me.
01:28 Rhiannon: We're so glad you're here.
01:29 Michael: Very excited.
01:30 Peter: Sam is a professor at the University of Michigan Law School and a civil rights and employment attorney. We are in the process of becoming a very prestigious and respected academic podcast, and your presence has brought us one step closer.
01:48 Sam: This is one step farther way, unfortunately. [laughter]
01:54 Peter: Today, we are discussing Janus v. American Federation of State, County and Municipal Employees, Council 31, better known as just Janus, a case where the Court took a big swing at public unions. This is probably our most requested case.
02:11 Rhiannon: Yeah, so you can stop hitting us up on Twitter...
02:13 Peter: Yeah, maybe you guys shut the fuck up. And relax.
02:17 Rhiannon: We're doing it. Leave us alone.
02:18 Peter: And to understand this case, it's important we give a little bit of background about how unions work, about how public sector unions in particular work and about how for decades, conservatives have worked to advance a legal theory intended and designed to kneecap unions. Janus is a case where the Court held that people have a First Amendment right not to pay union fees because, according to the Court, mandatory union fees violate a person's right to free speech. This case is about agency fees, and we should explain them, they're pretty simple. Public sector unions, and when I say public sector, I mean like teachers' unions, won't be referring to or thinking about police unions for the duration of this podcast in solidarity.
03:04 Rhiannon: Yeah, fuck them.
03:06 Peter: So those unions charge their members with union dues. If you aren't a member, though, you still have to pay what are called agency fees, and that's because even if you're not a member of a union, you benefit from all the collective bargaining that the union does. So without these fees, people would just opt out of the union to avoid paying dues, but still benefit from the union's work. What economics nerds call a free-rider problem.
03:29 Michael: The one and only useful concept in economics.
03:35 Peter: So conservatives have long made the argument that making non-members pay these fees is a violation of the First Amendment, because forcing people to pay these fees is compelling them to make political speech. In 1977, they took that argument to the Supreme Court and they lost. The Court said, look, the union can't use non-members' money for political activities, but they can collect money and use it for collective bargaining and other union services. So that case, Abood v. Detroit Board of Education, has long been a thorn in conservatives' sides. Over the course of the past decade, there was a real political push on this issue by the right. Several states passed new right-to-work laws which prohibit union fees for non-members. The Supreme Court's conservatives, especially Justice Alito, started claiming in opinions fairly explicitly that they thought the Abood decision was incorrect and should be revisited, and in 2018 when this case comes down, they get their chance. So Rhi, tell us about this Janus guy.
04:36 Rhiannon: Yeah, the story of Janus starts in Illinois. So back in 2015, Illinois elected Republican Bruce Rauner as their governor, and that year... This is a side note about who this guy is, that year Rauner reported making more than $180 million. He is the chairman of a private equity firm, and he ran for governor explicitly on a platform that was anti-union.
05:01 Peter: Before we continue, I think a round of applause for this guy for achieving success in both the private and public sectors.
05:07 Rhiannon: He worked so hard. He worked so hard.
05:11 Michael: I'm re-thinking my views about unions and private equity right now.
05:16 Rhiannon: So when this fucking douchebag took office, he issued an executive order pretty immediately, and the executive order stopped collection of agency fees from non-union members who benefited from a contract that was negotiated by the AFS...
05:35 Michael: Don't people just call it AFSCME?
05:37 Rhiannon: They do? Okay, like Peter said, that's the American Federation of State, County and Municipal Employees. It's a very large union, which at the time represented Illinois public sector employees. So the Governor in Illinois issues this executive order banning AFSCME from collecting fees from non-members, and he also goes ahead and preemptively files a lawsuit in federal court against AFSCME to challenge these agency shop agreements as unconstitutional on the basis that they violate the First Amendment. Now, there were some initial issues with the lawsuit because AFSCME argued correctly that Governor Rauner didn't have standing. He's not personally injured, he's not a non-member of a union paying agency fees. So some different plaintiffs get subbed in, and the lawsuit continues without the Governor as a party. And one of those plaintiffs is Mark Janus. He is a child support expert who worked for the state of Illinois, and that's how he opposed having to pay these agency fees, and that's how he becomes a party to the case.
06:45 Michael: Child Support Expert has big men's rights activist divorced dad energy.
06:52 Peter: Yeah. You could say I'm a child support expert.
06:55 Peter: I have no idea if that's accurate, but it just feels right to me.
07:00 Rhiannon: Yes, while the case proceeded through the federal court system, there were actually other similar cases happening around the country. A similar complaint regarding agency fees was making its way to the Supreme Court from California. And in July 2015, the Janus case was put on hold, because the California case, which was called Friedrichs, was granted cert, so it was going to the Supreme Court. But before the Supreme Court could issue its decision in Friedrichs... Justice Scalia died, bitch!
07:34 Rhiannon: So, without Scalia that case was decided 4-4, and that left in place the lower court's decision, which happened to affirm Abood, which Peter talked about up top. Now, without a Supreme Court decision, and now with Gorsuch replacing Justice Scalia, the Janus case out of Illinois restarted. But like the Ninth Circuit had done in Friedrichs, the Seventh Circuit here dismissed Janus's case on the basis of Abood, and Janus appealed to the Supremes. Now, just a little bit of background about how this case made its way through the courts and the similar cases that are happening throughout the country at the same time. Like we've talked about in many of our episodes, these cases are often the result of directed political action by conservatives over the course of years, what comes along with them is a lot of big money organizing around these causes. For instance, one of these organizations, it's called the State Policy Network.
08:38 Peter: Ah, yes.
08:38 Rhiannon: It's another organization with a...
08:41 Peter: SPN.
08:42 Rhiannon: These buzz words in the name, yeah. The State Policy Network is a consortium of conservative and libertarian think tanks, and it advances policies for business lobbyists and GOP donors, especially on the state level. These guys, the SPN, were in strong support of Janus and this kind of anti-union advocacy across the country, and even though they don't disclose their donors, a Texas affiliate organization of the State Policy Network inadvertently revealed its donor list a few years back, and what do you know, it included grants from such illustrious parties as the Koch Industries, AT&T, GEO group, Exxon Mobile and Coca-Cola. Also officially, they call their donors investors, so... That's, yeah...
09:30 Michael: I think that's more accurate. I appreciate that.
09:33 Peter: I respect that.
09:34 Rhiannon: At least they're upfront about it, right?
09:35 Peter: My mom, I consider her an investor in me...
09:41 Rhiannon: That's right. Okay, and while people in these think tanks and advocacy organizations like the State Policy Network, while they're saying that all of this anti-union stuff is really about the individual constitutional and free speech rights of workers, and they also tell their affiliate organizations to frame it in those ways too, their broad political motive is weakening unions. Internal documents reveal that they were excited about the Janus decision, saying it could potentially lead to the removal of over $1 billion, per election cycle, from union budgets. The president of the SPN affiliate in Michigan, he wrote, "Imagine the change we will see in policy debates over public education, taxes, social welfare spending and other issues, if the fear of union backlash is cut by two-thirds." So they're chomping at the bit. They love this, right?
10:36 Rhiannon: And immediately following the Janus decision, the SPN launched a massive campaign to push state affiliates and organizations to reach more than five million teachers, librarians and other public sector employees, and they wanted to encourage those public sector workers to opt out of union membership and dues payment. And when you get these assholes talking, they will eventually reveal that they don't care at all about free speech, or the Constitution, or whatever, but actually they care about elections.
11:04 Rhiannon: For instance, after Trump narrowly beat Hillary Clinton in Wisconsin, the president of the SPN affiliate in Wisconsin said, "There's no doubt that with the decline of union membership here, the political clout of the union bosses and their ability to automatically turn out members for Democrats has declined dramatically." And for what it's worth, just by the way, Mark Janus, we should say, is a former child support expert, because he now has a full-time job with the Illinois Policy Institute, a conservative think tank that funded this case.
11:38 Sam: His binder's thick.
11:40 Peter: That's right.
11:43 Rhiannon: Exactly.
11:45 Michael: Okay, that seems like a good time to maybe take a break for an ad.
11:50 Peter: So on to the court's opinion, it's another Sam Alito one, and we're sorry about this.
11:56 Michael: Breaking my spirit.
11:57 Peter: Yeah, we understand the toll this is taking on all of you emotionally, and we apologize.
12:01 Rhiannon: Every single week I beg. I say, "I don't want to read." And Peter says, "You have to!" And I don't want to do it.
12:10 Peter: Look, we don't pay you half a million a year to not read the papers.
12:18 Peter: Alright, so the Court says that you can't make non-union members pay union fees, because it's effectively compelling them to speak under the First Amendment. And I think the first issue that really jumps out to me about that is that I don't think what the union is doing should be considered First Amendment speech at all. Speech is broad, it doesn't have to be actually spoken or written, it can be any form of expression, including through someone who represents you, like a union, but the union is negotiating wages and benefits and other workplace conditions. You might not agree with what their goals are in every case, but they're not expressing an ideological or political position. How can the day-to-day business of running a union be an expression of an opinion?
13:07 Peter: It doesn't make sense to me, but the central argument that Alito is making is, "Look, if you are some non-union member being forced to pay these fees toward the union, they're doing all these things that you don't agree with," and he uses these terms, agency fees are forcing "free and independent individuals" to endorse ideas they don't approve of. And Alito tries to hook it into big political issues, he's like, well, look, the stuff the union does impacts the public budget and taxes, and you can't just force someone who disagrees on those issues to go along with it, which is like, first of all, very reachy, everything impacts public budgets and taxes.
13:46 Rhiannon: Right, yeah.
13:47 Peter: And also, it seems like what's really being said is that you can't be made to pay for an organization whose goals you don't agree with. If you don't like unions, you shouldn't have to pay fees to them. And the thing that keeps popping in my head is, doesn't just make all taxes illegal, right, like he says the government can't force you to subsidize someone else's speech. Okay, but it does that all the time. The government can mandate you to pay taxes and then it uses that money to do whatever it wants, and you don't get to just claim First Amendment protection when they go and bomb a country when you don't agree with it. And more like analogous, when they give the money to subsidize Shell Oil, who then uses it to invent better ways to kill humpback whales, [chuckle] I sure would like to be able to say, I'd rather not pay those taxes.
14:31 Sam: If I might interject... What if I'm paying taxes to support Donald Trump calling protesters thugs? Right now I'm being forced to pay for speech I disagree with, but nobody says that's a First Amendment violation.
14:44 Michael: That's right.
14:45 Peter: If Alito's argument is correct here, then basically all taxes are unconstitutional, so it's not that this argument is bad in the sense that it's poorly reasoned, it's more that it's objectively incorrect, like this is not what the law is, period.
15:00 Michael: Right. And the tax example can feel a little extreme, but at the very least, this feels very analogous to licensing requirements and public-private partnerships, like you mentioned, giving it to Shell Oil, but any government contract with Raytheon or Boeing or whatever is very much like taking money from a public fund and giving it to a private organization to do something that we've decided is in the general public interest.
15:27 Peter: And some lawyers have tried to take this reasoning a little farther. This term in the Supreme Court, they tried to argue that under this logic, the government can't make you pay these fees if you don't agree with them, that lawyers shouldn't be forced to pay Bar Association fees, and I gotta say, hell, yeah. [chuckle] And only two conservatives bought this argument by the way, Gorsuch and Thomas, although I think that if the other three were being intellectually honest here, or at least Roberts and Alito, who signed on to Janus, then certainly the same logic applies, right, how can the government force you to pay for a Bar fee and not a union? It doesn't really make sense. The only real distinction is that they think that unions are like this horrific political thing that people should be able to fight against if they want to.
16:17 Rhiannon: Well, and let's hash it out a little bit. I think people like the State Policy Network will say explicitly, like unions end up being sort of these shills, they turn out tons of votes for Democrats specifically, but I don't know. So what... I don't know, it's an organization of people.
16:39 Michael: Right. And they collectively are choosing to endorse and support candidates who represent their interest, it's just the way it is that those interests are best represented by Democratic platforms.
16:52 Peter: I think that there's this assumption running through it that anything a union does is inherently political, but anything that Raytheon or Lockheed Martin does, that's just the government doing business. It's just the categorization of some things as political and some things as apolitical without any real coherent way to draw that line.
17:13 Michael: And we talk a lot about conservatives on the Court having business-aligned interests, and you can't think about these things, these legal issues, without understanding the degree to which big industry and big money donors support right-wing politicians. And as a result, their agenda reflects the priorities of big corporations, which very often are in opposition to the priorities of their workers, and as a result, like labor writ large doesn't really have a comfortable place in the Republican right-wing coalition. Democratic politicians more than Republicans, I think some people will debate the degree to which Democrats have abandoned labor, but certainly more than Republicans will reflect the concerns of labor, and so there's this sort of symbiotic relationship where unions go to Democrats for protection and for expansion of their rights and the rights of their members, both their rights as institutions and for the benefit of individual workers, and in return, they provide benefits to Democrats in the form of fundraising and advocacy and help in elections.
18:34 Sam: Yeah and if might add, it's not just about Democrats versus Republicans, 'cause I do think you're right, that there's the Republican party, which is basically anti-union in very significant ways, and then there's the Democratic party, which is split between different factions.
18:50 Michael: Right, at best.
18:53 Sam: But... Absolutely, but it's also about the issues outside of the workplace that these labor organizations are pushing, and you saw that with the quote from the State Policy Network that you talked about earlier in the podcast, who are the people who are arguing for public education? Well, the biggest organizations arguing for public education instead of charter schools and taking all of the public money and sending it to private schools, our teachers unions, who are the people who arguing for expanding the social safety net. Well, often it is folks like AFSCME and SCIU and the people on the right, understand that, they wanna keep their taxes down, they don't wanna build up institutions that are public institutions, they want everybody for themselves because they're ideologically committed to it and because it benefits them personally.
19:45 Sam: So even outside of the workplace, this stuff matters a lot, and I think that's why it's no surprise that all the same people who are against public employee unions are also against public schools and against raising taxes to improve the safety net and all of those things.
20:03 Rhiannon: Yes.
20:03 Peter: Right...
20:04 Rhiannon: Go our king!
20:06 Michael: That's right. Fucking tell them. Yeah.
20:10 Peter: So, to summarize the function of this opinion, the government can compel you to pay taxes and then use that money for literally whatever it wants, but the government can't compel you to pay a union fee that it uses to do union stuff. When the First Amendment is about regulating the government, how can a scenario with more government involvement be somehow more constitutional, if the government is using your taxes to fund its own speech? I don't really understand it, and I don't think that it actually makes any sense, and I think that the biggest clue in this opinion is that Alito takes various pot shots at unions generally, throughout it. He complains about how they're privileged in negotiations, which is sort of one way of putting it, I suppose. At one point in time, many years ago, someone was like, "Hey, if workers are allowed to negotiate as a unit, that's better for them," and here we are centuries later, and conservatives are just like, "This is such bullshit, dude."
21:14 Rhiannon: To the extent that they're "privileged" in negotiation at all, it's just because they're a labor organization, because it's a block of people who are speaking together about something, that is the point, that's not an unfair advantage.
21:29 Peter: I don't think that it is a real privilege. Management is a corporation. When they negotiate with a union, management is a conglomeration of people that is being represented by a single entity. It's the same thing. What they are concerned about equality between workers and the company.
21:40 Michael: That's what I was gonna say, that privilege is that traditionally, a corporation negotiating directly with an individual is in a very powerful, unequal bargaining position, and unions level that playing field. That's the privilege, to not have to acquiesce to everything the big corporation wants and get steam-rolled. Your privilege is that you get to argue on equal footing.
22:08 Sam: On a more equal footing. Yep, yeah.
22:11 Peter: I think that rich people think that unions are bad for business because they view business as an abstraction, rather than something that people actually participate in it. Someone like Gorsuch, you know how people have those "live, laugh, love" signs in their house, he has one that just says "efficiency," he stares at it for 15 minutes every morning, sipping coffee, and he's like, "Time to go to work."
22:33 Rhiannon: That's what he's inspired by. Yeah. And so towards the end of the opinion, there's a sort of sneak attack by Justice Alito, where he says, "Not only can you not require non-members to pay these agency fees, what this means is you can't automatically opt employees into the union, they need to affirmatively opt in," and he says that this kind of new thing is necessary to avoid making people who disagree with the union pay any dues. But is that really necessary?
23:06 Peter: Yeah, it seems perhaps there might be an ulterior motive there. We've talked in the past about what's the least restrictive means for doing something, and surely, if the concern is that people might unwillingly pay money to a union they don't agree with, there's a better way to deal with that, than by having all of them be opted out by default. Okay, so Kagan writes the dissent here and she focuses almost exclusively on the fact that this decision overturns precedent, rather than making any particularly poignant arguments about the substance of the decision.
23:40 Rhiannon: Yeah.
23:42 Sam: And that's a hallmark of Justice Kagan on the Supreme Court, is her dissent. She's over and over and over again, attacking, overturning a precedent, instead of talking about what the case is really about. And some of that is, everybody thinks she's trying to build a case that when they finally overturn Roe v. Wade, she can write a dissent saying, "See here, they're overturning precedent again." It's not clear to me what that's gonna get her, you know, at that point.
24:07 Rhiannon: Thanks, Elena.
24:12 Sam: But also, I think here, it's a real missed opportunity, because she allows to go by, basically unchallenged, this whole set of free speech arguments that Alito makes in the majority, and when you look at it, I think you guys have been pulling at a lot of these threads, the free speech side of this case is actually the side in favor of the union, in the favor of agency fees. Because what is the union here? It's the way that the workers get voice, and if you have a rule that says that unions can't operate because they have to provide services to people who don't have to pay, so nobody's gonna pay and we're just gonna bleed the union dry and the union's eventually gonna die, what you end up doing is make it impossible for workers to join together, to speak in a way that's effective.
25:01 Sam: And the other thing that Alito just completely ignores, is that the union, it's not like somebody went out and picked AFSCME and said, "AFSCME is gonna decide what happens here." The workers voted for AFSCME, they made a choice, they spoke in an election saying, "We want these people to represent us," and of course, Justice Kagan doesn't make any of these points, because she's making a point about precedent. I get why she's doing it, but she misses the opportunity to actually make a much more powerful argument for her side.
25:34 Rhiannon: Yeah, we say it a lot on the pod, that the liberals often in dissent, really miss opportunities to substantively attack what conservatives are saying, and it seems like they're trying to play the conservative formalism game and make it about formal procedural issues, instead of really getting to the heart of the constitutional precedent.
25:55 Peter: And Kagan is probably the worst of them. Sotomayor, especially on worker rights, is pretty solid, Ginsburg is actually quite strong and often at her most poignant when talking about the history of the labor movement.
26:06 Sam: Kagan always wants to be convincing all the conservatives that she's as good at playing their games as they are. That's the hallmark of her Justiceship, and maybe sometimes she can persuade a conservative Justice on something that they wouldn't otherwise be persuaded by. It won't be on an issue that they really care about, something like this, she's never gonna persuade them, and why not just lead with what's actually going on.
26:35 Rhiannon: It's so cool to hear a professor say this stuff that we think.
26:39 Sam: That's why I love your podcast, 'cause you say the stuff that I think.
26:42 Michael: You seem to say it with much better articulation.
26:45 Peter: Yeah, that's the difference.
26:46 Rhiannon: He didn't even have to say "fuck," one time.
26:49 Sam: I've never heard that word.
26:53 Peter: So this is all part of a lengthy campaign by the right, both within the courts and in more political spheres to hack away at the ability of unions to finance themselves, and it's been especially targeted at public unions over the past couple of decades, because while private unions have declined, public unions remain quite strong. I noted up top that the interest of the conservatives on the Court in this issue seemed to coincide with the resurgence of political interest in the issue by the Republican Party. Right-to-work laws, which again prohibit agency fees to unions by non-members originally popped up after the passage of the Taft-Hartley Act in 1947, but for decades, they were the law in just a minority of states. But in the 2010s, Republicans started pushing them across the country. Michigan and Indiana passed right-to-work laws in 2012, Wisconsin in 2015, West Virginia in 2016, Alabama already had a law, but in 2016, they put it in their state constitution. Jesus.
27:56 Rhiannon: Really brought it home.
27:58 Peter: Yeah, it's right below mandatory lynching ceremonies.
28:03 Peter: And Kentucky passed one in 2017. So conservatives on the Court are sort of mirroring the broader reactionary movement. As the 2010s go on, the Justices begin to openly question the legality of these fees, and eventually it ends with this case where they strike them down. So it shouldn't need to be said that conservatives have a clear ideological objective here. They're looking to undermine unions, and if they need to lean on a completely incoherent view of the First Amendment, they'll do that.
28:32 Sam: So you talk about a political campaign that the right has had in legislatures and in elections around the country, but if you look at the road to Janus in the Supreme Court, you see actually the conservative Justices on the Supreme Court, and particularly Justice Alito, doing exactly the same thing. So it begins in a case in 2012 where he says, "Boy, this Abood case, I don't know, it's really extraordinary. We really ought to do something about it." And then there's another case a couple of years later where he narrows Abood even more and says, "Boy, Abood, it's sitting out there, guys. There's no... " And then they had the Friedrichs case, which they thought was gonna be what they would use to take out public employee unions, and then Justice Scalia died, it ended up 4-4.
29:23 Sam: And so then here we are in the Janus case. But it's clearly this campaign over case after case after case, where Justice Alito not only clearly wants to strangle unions and public employee unions particularly, but is sending these signals to all the conservative litigators, "Bring these cases. We wanna see more cases."
29:45 Rhiannon: Right, yeah.
29:48 Sam: So it's this relationship between Justice Alito and the conservative Justices on the bench, the political actors like the Koch brothers and the lawyers they fund to make sure that they can move the jurisprudence. So if you sit there thinking that what the judges do is they just hear the cases that come to them and they decide by calling balls and strikes, you look here, and that's clearly not what's going on.
30:07 Michael: That's exactly right.
30:08 Rhiannon: Yeah, it's such a good point, and it's not just that Justice Alito and the conservative Justices only speak through their written opinion. We've talked on the podcast before, they speak all the time, they go to universities and speak publicly, and Alito during... Over the course of years, is saying publicly that Abood is he believes a wrongly decided decision, and they're signaling this to the public in many ways, and signaling that they're not objective thinkers the way they want us to think they are.
30:36 Sam: Yeah. They're just fighting along in this political battle with all of their conservative colleagues, they're just doing it from a different place.
30:43 Michael: Right, that's right. And this campaign framing it as corporations, wealthy donors not liking workers having bargaining power makes sense, and it's right, but unions have long been an engine for Democratic candidate fundraising and a key part of their turnout efforts, their apparatuses. And so the anti-union push can and should be framed as part of this larger sort of conservative effort to tilt elections in their favor, which is in keeping with our discussion of gutting of the Voting Rights Act in Shelby County and campaign finance laws and Citizens United. And Citizens United is especially pernicious, because a big way that the conservatives tried to put a non-partisan gloss on that decision was by noting that it opened up not only corporate spending, but also union spending on elections, but then of course, it's immediately followed by a decade of attacks, legislative and judicial, on kneecapping unions and eliminating their ability to spend in elections.
31:49 Peter: Yeah, you give them the right to spend money and then you take away their ability to spend money.
31:52 Rhiannon: Right.
31:53 Michael: Yeah. And it's been successful. It worked. There is a recent study, just a couple of years ago that found right-to-work laws reduced Democratic vote share by 3.5%, which is like an insane number, like Democrats get 3% less of the vote in states that have right-to-work law than they would otherwise. Part of that has to be fundraising, which makes perfect sense, but it's also that unions play a role in how Democrats get out the vote. I've worked in a presidential campaign, primaries and the general election, and have seen it first hand, they play a big part in literally on election day, getting to Democratic voters, getting them to the polls, but even throughout the election, doing a lot of work. Campaigns rely a lot on volunteers. And there are things you can't ask volunteers to do, like when some religious fanatic is flyering churches with pictures of aborted fetuses and shit like that, you can't ask your wide-eyed 22-year-old volunteer to do something about that, but the union will send people out there to wait till they leave and then pull up all those flyers off all the wind shields. The decline in Democratic vote share persisted to a lesser degree, but down ballot to the House, Senate, State and local races as well.
33:09 Michael: I mean, in practical terms, this means right-to-work laws in Michigan and Wisconsin won those states for Trump, they won Ron Johnson's seat in the Senate over Russ Feingold. They've almost certainly won gubernatorial elections for Republicans, and in the same study, they found that the same laws reduced Democratic fundraising. So between Citizens United and right-to-work, you have corporate spending exploding while Democratic fundraising, in part to the loss from unions, going down. And so you can see there's a huge thumb on the scale in elections, and this is just... These cases that we've already discussed are just a small part of the tapestry, you'll be hearing from us some more about in gerrymandering and public financing of elections. It's just a massive effort from the right, from the courts, the state houses, the Senate, everywhere.
34:02 Rhiannon: Yes.
34:04 Sam: I just have one more point that I'd really like to make about this decision because it really sticks in my craw. So, if you read the very beginning of Justice Alito's opinion for the Court, the very first sentence says, "Under Illinois law, public employees are forced to subsidize a union, even if they choose not to join... " Yada yada yada. And throughout the opinion, there's this rhetoric of people are forced. If you're an employee, you're forced to do with these things to support this organization you don't like. And as a labor and employment law professor myself, I was just so struck by how this same set of conservative Justices in a bunch of other cases, talks all the time about how employees just choose to give up their rights to go to court when they supposedly sign arbitration agreements. And I hope you'll talk about those cases on the podcast too. There's a case like Epic systems where the very first line is the Court saying something like, "When workers choose to arbitrate their plans rather than go to court, the question is, do we honor that choice?" Right.
35:14 Sam: And here's the thing, Mr. Janus, he could have worked somewhere else. He could have organized people to vote against the union, whereas the people who sign these arbitration agreements, so-called sign them, most of the time they don't even sign them, actually. It's just they're home one day, at night after work, they get an email that says, "If you show up to work tomorrow, you will be treated as having signed this agreement." Because...
35:40 Rhiannon: Exactly.
35:41 Sam: In most workplaces in America your job is at will, which means you can be fired at any time, which means every day the employer doesn't fire you is like them doing you a favor. And so I'm struck by... Of course, and it shows that this is really about a much broader agenda, the political agenda you're talking about. It's not about we wanna honor the choices of workers, 'cause they don't honor the choices of workers consistently. What it's about is they don't like unions and they don't want unions to be funded. This is part of a defund the left scheme, and the conservatives on the Court, like the Koch brothers and the conservatives off the Court, are all a part.
36:20 Rhiannon: Yes. Hell, yeah.
36:20 Michael: Fucking Amen, dude.
36:22 Peter: Right. These positions that they're taking aren't part of a comprehensive philosophy that promotes or protects workers' rights, they're just the cynical and the strategic deployment of rhetoric to get the argument where they want it to go. So workers' rights weren't so important to Alito and Hobby Lobby when he said that a private company could dictate their employees' access to contraceptive healthcare. Sam mentioned Epic Systems, where the Court held that workers could be made to sign away their right to class action lawsuits. They're only defending workers' rights where they can leverage them against people and institutions they don't like. So you'll often see the Court framing it as if they are talking about worker choice or individual choice, and you can't let that fool you. The conservatives on the Court are absolutely not concerned with the free speech of your average worker, not now and they never will be.
37:08 Michael: That's right.
37:10 Rhiannon: So after the Janus decision, AFSCME went from having 112,000 agency fee-payers to 2000, which was a 98% drop in those non-member fees that they were collecting. And another very large public sector worker union, the Service Employees International Union, went from having 104,000 agency fee-payers to just under 6000.
37:34 Peter: But I think there's some good news, at least that it seems like in the year or two since Janus, actual union membership...
37:41 Rhiannon: I saw that membership was flush... Yeah.
37:43 Peter: Union membership still looks strong. I think the big caveat there is that this is a long-term play. The lack of agency fees will slowly eat at the unions, almost certainly. It's just sort of a question of whether they can withstand it and to... Whether and to what extent they can withstand it.
37:58 Sam: We really have no idea what the long-term effect is going to be. Obviously, what this does is it makes it much, much harder for labor organizations to operate, to expand and to have the kind of... Have the kind of membership and power that they need, because everybody can now say, "Well, I get all the benefits without paying any of the costs, so why shouldn't I just do that?" I think different unions are different in how they've responded and how their workers have responded. You look at some unions where after right-to-work, they didn't lose that many members at all because they worked really hard to kind of retain their membership.
38:43 Sam: But I think when you talk about the long term, the thing to focus on is that means that those unions can't be focusing on organizing new workplaces, 'cause they've gotta be focusing on continuing to build the bonds with their membership. So I think we've got to expect it's gonna at least slowly erode the power of unions in American politics and in the American workplace. And in some unions, it had a really quick effect. There were folks who said, "Well, when Janus was decided, we had to cut our budget by a third that year." So, I think there's an immediate impact, which is pretty clear, there's a longer term impact, which is hard to predict precisely, but we know it does put this big barrier in the way.
39:30 Rhiannon: Yeah.
39:30 Michael: Right, right. And there is the potential, at least, for sort of a negative feedback loop in the partisan dynamic I was describing, where it's like... Studies say that it hurts Democratic fundraising. And so do you just accept that? Or if you're a politician, do you start looking for money elsewhere? And you might start looking for money in places that are not necessarily as sympathetic to unions, like Silicon Valley or something. And then you start getting cross-pressures within the Democratic coalition on labor, which those cross-pressures already exist. It could make it harder. And then that sort of builds on itself. If they become even less committed to unions, then you're gonna get less union support and vice versa, until they're not even really a force anymore.
40:16 Rhiannon: That's a really good point.
40:17 Peter: I would like to see teachers' unions and other public unions adopt the model of police unions, which is rather than organizing and exercising solidarity, if a politician, like the mayor, disagrees with you, you publicly threaten their daughter's life. And you see where that gets you. It seems to be working for the police, and I think that as you see teachers get less and less funding within their unions...
40:46 Michael: They have a lot of access to kids too, that's a real...
40:48 Peter: That's right. We'll just write an open letter to the Governor, like, "We're not gonna let your kid come home today if you... "
41:06 Peter: Thanks to our guest, Sam Bagenstos.
41:09 Rhiannon: Thank you so much.
41:11 Michael: This was a great time. Thank you for coming.
41:13 Sam: Yeah it was. Thanks a lot. The pleasure was all mine. This was really a lot of fun, thanks. My career is probably over now, but I appreciate your having me on.
41:23 Peter: Don't worry. We're gonna get you the sweet podcast money. You will never turn back.
41:28 Sam: Solid. Alright.
41:31 Peter: Next week is a Buckley v. Valeo, the case that held that money is speech. Should be a good one. I'm saving up to allow myself to speak on the podcast.
41:46 Rhiannon: $1 is one word.
41:49 Peter: That's right.
41:51 Michael: 5-4 is presented by Westwood One and Prologue Projects. This episode was produced by Katya Kumkova with editorial oversight by Leon Neyfakh and Andrew Parsons. Our artwork is by Teddy Blanks at CHIPS NY, and our theme song is by Spatial Relations.
42:12 Leon: From the Westwood One Podcast Network.