Several lawmakers say leave decision to the states

By Mark Fitton

SPRINGFIELD – Illinois Republicans are not in lockstep when it comes to a high-visibility labor law case before the U.S. Supreme Court.

Nearly 50 Republican lawmakers and former lawmakers from across the country have signed onto a friends-of-the-court brief in the case of Friedrichs v. California Teachers Association, which is viewed in many quarters as a battle between unions and right-to-work advocates. 

In their Nov. 13 filing, the legislators – including seven Illinois legislators and two former state lawmakers – urge the high court justices to leave the question of “fair-share dues” or agency fees to the states to decide.

That puts them opposite Illinois’ leading Republican, Gov. Bruce Rauner of Winnetka, who has been a full-on supporter of abolishing mandatory union dues or fees for state employees. 

The seven Illinois GOP lawmakers taking up the state-choice argument are Reps. Adam Brown of Champaign, Terri Bryant of Murphysboro, C.D. Davidsmeyer of Jacksonville, Norine Hammond of Macomb, Dwight Kay of Glen Carbon, Bill Mitchell of Forsyth, and Sen. Sam McCann of Springfield. Former Reps. Raymond Poe of Springfield and Angelo “Skip” Saviano of Elmwood Park also joined in the brief, which was prepared by the Constitutional Accountability Center of Washington, D.C.

In the case before the court, Rebecca Friedrichs and nine other California teachers who are not union members object to paying the fees or dues, which are to go toward the costs of bargaining or contract administration.

They argue that being forced to pay dues is a violation of their First Amendment-protected rights of free speech and free association.

In the recent filing, the GOP legislators make a three-pronged argument:

• The First Amendment does not deprive states the power to enact agency-shop laws requiring government employees to pay their fair share of the costs of collective bargaining.

• The court has long recognized the role that federalism plays in the country’s constitutional structure.

• Consistent with the principles of federalism, states should be able to determine for themselves whether to adopt agency-fee arrangements.

In their brief, the 48 current and former lawmakers argue “nothing in the Constitution prohibits the agency fee arrangements at issue in this case.” They say the decision on whether the agency fees are good policy “belongs to the relevant state and local governments. It is also a decision on which jurisdictions can and do differ.”

“After all, no one arrangement will make sense for every state in the country, and state officials will be best able to weigh the potentially competing interests of public employers, public employees, unions, and the public to determine what makes the most sense for their state,” they write. 

Rauner, on the other hand, opposes mandatory dues. A month into office, he made an effort to stop state agencies from collecting the agency fees, which he called “a clear violation of First Amendment rights – and something that, as governor, I am duty-bound to correct.”

In his brief before the court, filed Sept. 11, the governor argued: 

The American Federation of State, County and Municipal Employees’ “activities funded by ‘fair share’ fees are far broader than simply securing workplace protections and better employee compensation for its members.

“Even those union activities that are confined to collective bargaining have significant political implications. Enriched by contributions from members and nonmembers alike, public sector unions in Illinois, whose labor and management sit on the same side of the table, have negotiated wages and benefits that have unrealistically kept going up while the state economy has kept going down. The connection is hardly coincidental.”

While they may differ with Rauner on whether the high court should strike the controlling case law when it comes to agency fees, the Republican lawmakers who filed the Nov. 13 brief don’t argue in favor of them – only that the decision is one Congress has appropriately left to the states.

The legislators “take no position on the legal question whether Congress could legislate in this area if it so chose … they believe that Congress’s decision to allow States to structure public sector labor relations as they see fit reflects federalism principles that are fundamental to our constitutional structure,” according to the brief.

Several of the Illinois lawmakers who signed onto the Nov. 13 brief are from areas of the state with high populations of union or government workers. They have, to date, stood  with Rauner on his agenda, although McCann did vote with state Senate Democrats on an attempt to override Rauner’s veto of Senate Bill 1229.

The so-called “no-strike, no lockout” bill was backed by the state’s biggest unions and most Democrats, but opposed by Rauner and most Republican legislators. McCann said his vote represented the will of his constituency. The override attempt fell one vote short in the House. 

Oral arguments in Friedrichs v. California Teachers Association have yet to be scheduled but will likely be set in January 2016; a decision is not expected until mid-year.