(Source: thenation.com 07/05/18)
Now the Janus decision has helped push the National Right to Work Committee and its sister organizations closer to that goal.
By Moshe Z. Marvit July 5, 2018
In December 1953, a group of anti-labor business leaders gathered in Washington, DC, for the first in a series of secret meetings. The meetings were organized by a Southern paper-box manufacturer named Edwin S. Dillard, who was heir to the Old Dominion Box Company and had spent years fighting to keep his workforce from joining a union. The goal of the meetings: to find a way to crush the American labor movement.
Dillard enlisted the help of a prominent corporate public-relations firm, Selvage & Lee, to find others who might be committed to the cause. According to a trove of legal documents shared with The Nation by the UAW, their efforts brought together retired congressman Fred Hartley, who was notorious for spearheading what labor referred to as the “slave-labor bill”; Whiteford Blakeney, the nation’s premiere anti-union attorney (in later years, he would go on to help lead what one federal judge called a “full-scale war against unionization” at the J.P. Stevens textile plant against Crystal Lee Sutton, the real-life Norma Rae, and her coworkers); and representatives from GE, the Santa Fe Railway, and a host of Southern tobacco, manufacturing, and textile firms.
At one of these meetings, Dillard told the group that “it was time for the businessmen to realize that [the union shop] was an awful threat to our country, to their operations, to business in general all over the United States.” The group resolved to form “some kind of organization” to deal with labor.
By the third meeting, on December 15, 1954, the group (by then a collection of about a dozen true believers) had settled on a plan, at once simple and radical: Rather than continue to fight labor head-on, from the position of management, they would break labor from within. The key to this effort was an idea that had begun circulating on the segregationist Southern right for years and had recently been codified in a controversial provision of the Taft-Hartley Act of 1947 (crafted by the group’s own Fred Hartley). This provision, known as Section 14(b), allows states to pass “right-to-work” laws. Such laws permit workers to not pay any dues to a union that represents them in the workplace, and they are some of the most effective ways to defund and defang American labor from within.
In honor of that aspiration, the group dubbed itself the National Right to Work Committee (NRTWC).
Nearly 65 years later, on June 27, Mark Mix, president of both the National Right to Work Committee and its legal offshoot, the National Right to Work Legal Defense Foundation (NRWLDF), stood on the steps of the Supreme Court and gave a celebratory interview to Fox News. The occasion of the interview was the Supreme Court’s decision in Janus v. AFSCME, which had been issued earlier that day: “We’re very excited about it. It’s a great day for individual employees, independent-minded employees, not only in Illinois but across the country,” Mix told Fox News’s Bill Hemmer during a friendly three-minute exchange. “The Supreme Court finally got it right!”
Mix had good reason to crow: The foundation had represented Mark Janus, the lead plaintiff in the case, nudging his suit from federal district court in Illinois, where it was dismissed, to the US Court of Appeals for the Seventh Circuit, where it was also dismissed, all the way to victory at the Supreme Court. There, Justice Samuel Alito, writing for the five conservative justices, overturned 41 years of precedent and affirmed the foundation’s argument that public-sector workers like Janus have a First Amendment right to decline to pay fees to unions that represent them in negotiations. “States and public-sector unions,” Alito wrote, “may no longer extract agency fees from nonconsenting employees.”
And then the associate justice went even further. He declared that the longstanding practice whereby workers have to proactively opt-out of a union they do not wish to join also “violates the First Amendment” and that workers must proactively opt in instead. It was a bruising decision, cloaked in the righteous armor of the First Amendment, and it effectively transformed all public-sector work places into “right to work” spaces. It also pushed the nation closer than ever to the committee’s founding anti-labor fantasy.
For public-sector unions, the effects of Janus will likely prove far-reaching and exceptionally challenging to navigate. As Mix observed, not unhappily, on Fox News, “They’re really, really stinging today.” Indeed, by enabling workers to pay nothing for the costs of representation, even as those unions are required by federal law to continue to represent them, the decision is expected to blow a hole in union revenue, as well as membership, and weaken their ability to advocate for workers. What this will mean in practice is that millions of public-sector workers—teachers, bus drivers, fire fighters, and countless others—will find it harder to fight for better wages, benefits, and working conditions, and that jobs that once served as on-ramps to the middle class may no longer function as such. This is bad news for everyone—but labor advocates worry, in particular, about the effects on workers of color, above all black women, who are disproportionately represented in public-sector jobs and who, with earnings far below their white and male counterparts’, have the most to lose.
“There is no sugarcoating today’s opinion,” Justice Elena Kagan wrote in a blistering dissent that was joined by the Court’s three other liberal justices. “The majority overthrows a decision entrenched in this Nation’s law—and in its economic life—for over 40 years. As a result, it prevents the American people, acting through their state and local officials, from making important choices about workplace governance.” (The organization did not respond to efforts—made by e-mail and phone—to speak with representatives about its history and aims.)
What makes a case like Janus particularly confounding is that the foundation, as well as the committee, claims to be acting on behalf of these American workers. On its website, in its arguments, it describes its work as freeing employees from forced union payments and restoring First Amendment rights. Yet scratch the surface of the Janus case and what fast becomes clear is that it, like so much else in the right-to-work realm, did not begin with a worker but rather with a wealthy anti-union businessman.
In this instance, the businessman was the multimillionaire governor of Illinois, Bruce Rauner, who within his first month in office, in February 2015, issued an executive order that directed the state’s payroll agency to immediately halt payment to the union of all workers’ fair-share fees. Rauner argued that the fees were unconstitutional. He then sued the unions in federal court to get a declaration that his actions were legal. The suit was an amateurish attempt to stick it to the unions, and a federal judge said as much when he held that the governor had no standing because he had no injury or stake in the suit.
The case would have faded, but in March 2015, before the judge issued his decision, the NRWLDF filed a motion to intervene on behalf of Janus and two other public employees. (The group was joined in this effort, and all that followed, by the Liberty Justice Center.) The foundation argued that Janus and the others opposed not just the public policy positions of the union but also the union’s fight to get increased wages and benefits for them and other workers, because these increased wages and benefits put Illinois in a worse fiscal position. “Janus also believes that AFSCME’s behavior in bargaining does not appreciate the current fiscal crises in Illinois and, does not reflect his best interests or the interests of Illinois citizens,” the foundation wrote in its motion to have Janus join the Rauner lawsuit. It argued that workers’ having to pay a small fraction of their higher wages to the union that negotiated those wages was a violation of their First Amendment rights.
This intervention by Janus and the NRWLDF provided the essential lifeline. The governor was kicked out of the suit by the federal judge, and the face of the case instigated by a wealthy, anti-union businessman became that of a worker who has repeatedly stated that he is not against unions but simply wants to have the right to choose.
In this transformation one can see the methods of the organization that, more than any other, has moved the right-to-work agenda from the political fringes to the law of the land.
The Genesis of Right to Work
To understand how this happened—how a far-right obsession became GOP principle and then widespread policy—it helps to go back to the early days of the concept of right-to-work.
The first mentions of the phrase “right to work” date back as far as the early 19th century, but its transformation into a weapon of conservative business interests is often credited to a reactionary Texas businessman named Vance Muse. Muse, who once described himself, proudly and publicly, as a “believer in white supremacy,” was the head of a group called the Christian American Association. He was also, in his own grandson’s words, “an anti-Semite, and a Communist-baiter,” and he loathed unions, seeing them both as dens of communism and threats to the racial order. “From now on, white women and white men will be forced into organizations with black African apes whom they will have to call ‘brother’ or lose their jobs,” he warned, in reference to the union shop. And so, during the 1940s, he set out to destroy unions, spending the last years of his life working with the Christian American Association and other organizations to pass right-to-work laws. By the time Muse died in 1950, 11 states had passed right-to-work legislation—and the Taft-Hartley Act was the law of the land.
Muse doesn’t figure much in the National Right to Work Committee’s self-described history, but it was nonetheless against the backdrop of his and other advocates’ early right-to-work victories that the organization emerged several years after his death. Much like Muse, a number of the group’s early leaders were Southern businessmen with a noted antipathy to unions; and like Muse, many nursed a strong anti-communist streak. But while Muse was brash and theatrical and unabashed in his racism, the committee’s founders understood the power of subtlety: The group would be run for and by employer interests, but its credo and public presentation would be wrapped in a blue collar.
In this, the group was perhaps far more similar to the short-lived DeMille Foundation for Political Freedom, founded by early Hollywood giant and anti-communist crusader Cecil B. DeMille, than to Muse. The DeMille Foundation’s strategy, as summarized by its secretary during a 1954 speech to one state Chamber of Commerce, was to place workers at the forefront of its efforts, to brandish them as the public face: “Powerful individual and corporative interests must be enlisted in any such [state right-to-work] campaign as the ‘anonymous quarterbacks,’” the foundation secretary said. They would “determine the policy and call the turns,” but these should “be executed by citizens less associated in the public mind with employer interests.”
Whether in conscious deference to this precept or not, the Committee had soon mastered a similar sleight of hand. It did this initially by installing a former railroad clerk and union member, William T. Harrison as its public face, replacing the anti-union former Congressman Fred Hartley. (DeMille, who had disapproved of the group’s obvious ties to employer interests, was apparently much relieved.) But it also proved adept at the ancient art of coopting progressive ideas and then turning them on their head—or, in this instance, of seizing the mantle of civil rights and, in a cynical inversion, casting labor as the true threats to workers’ rights.
In this recasting, “compulsory” unions became the true free-riders—not workers who didn’t want to pay for the representation they received from the union. And unions, not employers who subjected workers to low pay or dangerous working conditions, were the oppressors, guilty of requiring people to join against their will. As the NRTWC declared in its 1958 constitution and by-laws: “We believe that [compulsory unionism] is an unjustifiable denial of individual liberty and free choice and involves nothing less than the oppression of minorities and the destruction of civil rights.”
As for the committee’s own role, it was to be the protector of those rights, its weapon the sword of right-to-work. And if it might have seemed strange for a group forged by a cadre of anti-union businessmen, marching under the same banner as Vance Muse, to declare itself the guardians of civil and minority rights, that didn’t stop the NRTWC from trying—in promotional literature, in legal arguments, and even in the pages of Ebony magazine. It was there, in 1973, that NRTWC member Ruth Johnson argued in a letter to the editor that, had Martin Luther King Jr. lived, he would have supported right-to-work.
“This is the way Dr. King wanted it,” Johnson wrote. “Voluntary!”
In fact, King, who had been assassinated while supporting black sanitation workers striking for their labor rights, felt precisely the opposite about the right-to-work agenda. As he warned in a 1961 speech, “In our glorious fight for civil rights, we must guard against being fooled by false slogans, such as ‘right to work.’ It is a law to rob us of our civil rights and job rights.” And he continued: “Wherever these laws have been passed, wages are lower, job opportunities are fewer and there are no civil rights. We do not intend to let them do this to us. We demand this fraud be stopped.”
While the founders of the NRTWC laid the groundwork for its future rise, the person who was most responsible for building it into the force it would become was Reed Larson. Larson was a balding, bespectacled man who spent his early years as an engineer at the Coleman Company in Wichita until he left in 1954 to spearhead right-to-work legislation in Kansas. After successfully steering the legislation to an improbable win—reportedly with the support of oil magnate and Koch-family patriarch Fred—he was plucked from relative obscurity to lead the organization. It was a role he would end up holding for more than 40 years, until 2003, and that he would parley into power and prominence in conservative circles. In 1981 he came in fifth, only two places below President Ronald Reagan, in a poll on the most admired conservative men not in Congress; just three years later, the John Birch Society’s Review of the News hailed him as a “Fighter for Worker Rights” in an “exclusive” interview.
Larson’s genius, as suggested by a flattering 1977 New York Times profile titled “Reed Larson vs. the Union Shop,” lay in the combination of his ambition, which was significant, with a general’s commitment to the use of overwhelming force. Under his watch, the NRTWC grew into a multiheaded operation dedicated to battling labor on multiple, simultaneous fronts. Through the Legal Defense Foundation, it brought a constant rotation of lawsuits all across the country, jamming the courts with cases. Through legislative campaigns, it pushed states to pass right-to-work laws, with an eye to picking off legislatures one by one. It lobbied legislators, backed political candidates, and pushed out an endless stream of letters through a direct-mail machinery so extensive that the organization’s building in Springfield, Virginia, was granted its own ZIP Code by the United States Postal Service. Around the time of the 1965–1970 Delano Grape strike and boycott, it reportedly sold stickers urging people to “eat more grapes.”
To his admirers, such dedication made Larson a hero—”the most gentlemanly of the giants of the conservative movement with the biggest stick and the tallest stature of them all,” gushed Eugene Delgaudio, leader of Public Advocate of the United States (which was dubbed an anti-LGBTQ hate group by the Southern Poverty Law Center), in a tribute after Larson’s death in 2015. In its obituary, The Wall Street Journal saluted him as a “dedicated ‘right to work’ advocate.” Larson’s critics, however, saw him differently. “Reed Larson,” the civil-rights lawyer Joseph Rauh Jr. told the Times in 1977, “is devoted to the destruction of the trade union movement.”
In the end, Larson didn’t succeed in this mission, but he did manage to undermine the labor movement, and to spawn an anti-union apparatus that remains a powerful behind-the-scenes force. Under its current leader, Mark Mix, the NRTWC and its sibling organizations are part of a $30 million operation, according to Guidestar, with high-profile right-wing supporters like the Bradley Foundation, the John M. Olin Foundation, and the Walton Family Foundation (as in Walmart). While the groups have little of the name recognition of conservative allies like the American Legislative Exchange Council and Grover Norquist’s Americans for Tax Reform, their reach remains profound, and their fingerprints can be found on many of today’s defining anti-labor efforts: from the 2011 push to pass Act 10 in Wisconsin, which gutted the state’s public-sector unions by, among other things, ending their ability to engage in collective bargaining, to the 2013 “Battle for Chattanooga,” the failed Volkswagen unionization drive.
At times, such relentlessness has gotten the NRTWC into trouble. In 1984, during the height of the Larson era, the committee shelled out $100,000 to hire private detectives to infiltrate Walter Mondale’s presidential campaign as well as the AFL-CIO and NEA, according to comments made by Larson as well as a case filed by the Federal Election Commission (the case was dismissed in 1996 on statute-of-limitation grounds). More recently, ProPublica and PBS Frontline together, followed by local Montana newspapers, traced the NRTWC’s operatives to an elaborate series of front groups that ran off-the-books mailing operations for Republican legislative primary campaigns in Montana in violation of campaign-finance laws. (The scandal was initially unearthed after a box containing NRTWC documents was found in a meth house in Colorado.) Asked to comment on each of those incidents, the organization did not respond.
Nonetheless, the NRTWC’s hardball tactics have continued to pay off, particularly as the pendulum of power has shifted ever farther to the right. Since 2012, the committee and its allies have helped pushed six states—including the important union states of Michigan, Wisconsin, and Missouri—into the right-to-work column. (Thanks to popular pushback, Missouri’s law will not go into effect unless it passes a vote in August.) These additions have brought the total number of right-to-work states to 28 and, by some accounts, so thoroughly weakened unions in once-Democratic strongholds that they helped tip the 2016 election to Donald Trump.
At the same time, the committee continues to push for a National Right to Work Act, the holy grail of anti-union legislation and a dream of the movement since the days of Vance Muse (he is reported to have been working on a federal amendment to the constitution when he died). To help grease this and other efforts, the NRTWC has spent almost $44 million lobbying the Senate since 1999—a commitment that could pay off sooner rather than later. According to the bill’s Senate sponsor and active NRTWC promoter Rand Paul, President Trump has promised to sign the National Right to Work Act if it makes it to his desk. “Without a doubt,” Paul wrote in a recent mailer sent out by the committee, “this is our best opportunity EVER to pass a National Right to Work law to end forced unionism in America.”
And yet, given the recent accelerated pace of right-to-work victories, it’s also possible that Congress won’t need to pass a federal act—rather, the Supreme Court may get there first. Already, with the Janus decision, the Court has transformed all public-sector workplaces—which account for almost half of all workers who belong to a union—into right-to-work sites, upending over four decades of established law and disrupting thousands of union contracts that cover millions of workers. All that remains now is for the Court to find a similarly cynical logic to extend its legal ruling to the private sector. Though this may seem unlikely because the First Amendment does not apply to the private sector in the same manner as it does to the public sector, the Janus victory was similarly unimaginable just a few years ago. And if that happens, it will not be the result of some desperate cri de coeur howled from the heart of the American working class, some grassroots demand for the “right to work,” but because the NRTWC’s legal wing has been agitating and arguing for it for decades.
Through the Legal Looking Glass
There is a long tradition in the United States, used by abolitionists and suffragists, that constitutional law scholar Jules Lobel has termed “success without victory.” It runs counter to the way that most people understand court cases, where winning the case is the ultimate (and often only) objective. Instead, this approach views the courts as a political forum where minority viewpoints and unheard voices can gain public attention and educate the public. Individual court cases are used for more than winning the matter at hand: to define a movement, create contradictions in the law, and then exploit those contradictions. Even though one may lose individual cases, those losses can still form the structure to win the future.
“Success without victory” had traditionally been espoused by the oppressed and unheard, making it an unlikely strategy for a group like the National Right to Work Legal Defense Foundation, whose aims align with big corporations and the wealthy. But in a typical act of inversion, the NRWLDF has long framed itself as fighting the “new slavery,” where it and its corporate backers are the David to the union Goliath. It is this belief that has allowed Mark Janus to declare with a straight face that his case is not about the $23.48 in fair-share fees deducted from his paycheck every pay period, but rather about his basic freedom, choice, and liberty.
The NRWLDF has used this strategy to great effect. It has inundated courts and agencies with suits against unions that persistently cast unions in the worst possible light. According to a Westlaw search, the foundation has appealed as many cases and filed as many amicus briefs to the US Supreme Court since 1985 (the first date for which a comprehensive search is possible) as the premiere civil-rights organization, the NAACP. A FOIA request submitted for this article revealed that the NRWLDF has brought more than 1,000 cases at the National Labor Relations Board between 2000 and 2014. These cases involve every issue that a union can be sued for under the National Labor Relations Act, brought against unions in almost every state in the nation. Anytime there is a union-organizing campaign or election, a strike, or other activity where dissent can be exploited, one can find the committee and the foundation.
The origins of this litigation program date back to 1968, the year the NRTWC established the legal-defense foundation as a 501(c)(3) devoted to weakening unions through the courts. The foundation was consciously modeled after the NAACP Legal Defense Fund, the pioneering civil- and human-rights organization. But the NRWLDF didn’t only borrow a name from civil-rights work; it also tried to use the court victories of civil-rights organizations to advance its own agenda in the courts. The NRWLDF told workers that it would protect their civil and human right not to join a union; and, reaching out to the black community, it implied that unionism was the new slavery, and promoted the idea that only right-to-work could make them free.
The first major NRWLDF-initiated case that made it to the Supreme Court was Abood v. Detroit Board of Education, and it has both provided the opening for the NRWLDF to attack labor in the courts and been the case that it has tried most to dismantle ever since. With Abood, the NRWLDF argued that it was a violation of public-sector workers’ First Amendment rights to require them to pay any union dues. It was a massive case, with some 600 plaintiffs (unlike more recent cases, like Janus, which have involved a few dissident workers). However, more than half of those represented in the suit would turn out to be deceased, retired, or otherwise not in the bargaining unit, while a majority of those workers who were in the bargaining unit voluntarily chose to remain members of the union, according to an appellant brief filed to the Supreme Court in the Abood case.
The Supreme Court’s decision in May 1977 was both a flagrant loss and a stealth victory for the NRWLDF. On the one hand, the Court did not buy the foundation’s expansive argument that public-sector unions are inherently political, and that any mandatory dues are a violation of the First Amendment. On the other hand, the Court held that any public-sector worker covered by the union contract could request a refund of the amount of fees not used for collective bargaining, resulting in the practice known as “agency” or “fair-share” fees. (These fees are the reduced fees that workers may pay to the union instead of full membership fees and cover only the costs associated with organizing, contract negotiation, and administration.) The Court said that in the public-sector context, the line between political and nonpolitical activities “may be somewhat hazier” than in the private-sector context, but that it had “no occasion in this case, however, to try to define such a dividing line.”
Yet there was a twist: In a scorching concurring opinion that reads more like a dissent, Justice Lewis Powell wrote that he wholeheartedly agreed with the NRWLDF’s argument that all actions by a public-sector union were political and therefore a potential threat to the free-speech rights of their members:
Whether a teachers’ union is concerned with salaries and fringe benefits, teacher qualifications and in-service training, pupil-teacher ratios, length of the school day, student discipline, or the content of the high school curriculum, its objective is to bring school board policy and decisions into harmony with its own views.… In these respects, the public-sector union is indistinguishable from the traditional political party in this country.
Justice Powell, who authored the infamous Powell Memo several years earlier that discussed the necessity of business interests’ using the courts to advance their objectives, planted the seed for Abood’s overturning. Ever since, the NRWLDF has been trying to get the Supreme Court to do just that.
For decades, the foundation has appealed numerous cases to the Supreme Court, but, for the most part, these cases simply ended up clarifying where the line lay between political and nonpolitical expenses, and what form of notice unions were required to give to workers who did not want to pay for their political activities. It is only in recent years, with the arrival of Justice Samuel Alito, that the NRWLDF has found a true fellow traveler. In a spate of recent right-to-work cases—all but one brought by the foundation—Justice Alito and the conservative majority have seized on Powell’s logic to chip away at Abood. In her dissent in Janus, Justice Kagan refers to this period as the Court’s “6-year crusade to ban agency fees.”
This “crusade” began with the foundation-led case Knox v. SEIU in 2012, which should have been a simple case; all it asked was whether a public-sector union had to provide members with a new notice to opt out when it issued a special assessment to pay for lobbying a ballot measure. The holding in the case was straightforward, stating that a new notice was required and that workers had to opt in to pay the special-assessment fees, but Justice Alito used it to unsettle the 1977 Abood case and thereby cast doubt on the Court’s long precedent regarding fair-share fees. Throughout the decision, Alito planted land mines, none of which were necessary for the holding. He wrote that Abood, which allowed fair-share fees in order to avoid free riders and ensure labor peace, was “something of an anomaly,” and that free-rider arguments “are generally insufficient to overcome First Amendment objections.” Furthermore, his opinion relegated all collective bargaining in the public sector to the realm of the political, writing, that “because a public-sector union takes many positions during collective bargaining that have powerful political and civic consequences…the compulsory fees constitute a form of compelled speech and association that imposes a ‘significant impingement on First Amendment rights.’”
For decades, the Supreme Court had been drawing a careful line between political and nonpolitical expenses, thereby distinguishing when a union could charge workers for the activities, but in this sentence, Alito was changing the rules of the game. He was fully embracing the committee and foundation’s long-time argument that everything a public-sector union does is political and therefore could not be considered a “chargeable expenditure.”
This thread was picked up on two years later in another foundation-led case, Harris v. Quinn, which involved home health-care personal assistants and SEIU Healthcare Illinois & Indiana. In a sense, the ruling in Harris was narrow; the majority held that these workers were not full public employees, so Abood did not apply to them (and, therefore, they were deemed a right-to-work sector). But once again Justice Alito, writing for the majority, applied the foundation’s arguments to further undermine Abood. In paragraph after paragraph, he wrote that the justices who had decided Abood in 1977 had “seriously erred,” “failed to appreciate,” “did not foresee the practical problems,” and had rested a “critical pillar” of their analysis “on an unsupported empirical assumption.”
Alito was essentially begging for someone to petition the Court with a case that would allow the justices to address the First Amendment issues involved in fair-share agreements.
This happened a year later, in 2015, when the Supreme Court accepted Friedrichs v. California Teachers Association, a case that attacked Abood head-on and argued that workers had a constitutional right to not pay for the union representation they receive. Based on the cases leading up to Friedrichs, as well as the oral arguments, there was a general consensus that the Supreme Court was likely to impose “right to work” on all public-sector employees. Then Justice Antonin Scalia died unexpectedly on February 2016, and the Court issued a 4-4 decision on the case the following month.
Many believed that this turn of events would provide labor some respite, as it takes years to get a case to the Supreme Court. But the NRWLDF already had Janus, which in all relevant respects was identical to Friedrichs, in the works. Janus, like Friedrichs, was a case rushed through the courts without the benefits of a trial, that similarly based its argument on the First Amendment.
In his majority opinion in Janus, Alito cited the logic and language of Knox and Harris more than 30 times as a way to create the illusion of how broken the system was—and how long the Supreme Court had held reservations about labor’s use of fair-share fees. But in reality he was mostly citing his own words from the previous few terms. Justice Kagan stated as much when she argued that “in the 40 years since Abood, this Court has had to resolve only a handful of cases” involving where to draw the line for fair-share fees, that there was no disagreement in the lower courts over this issue, and that “that tranquility is unsurprising.” She concluded that “the majority has overruled Abood for no exceptional or special reason, but because it never liked the decision. It has overruled Abood because it wanted to.”
Just the beginning
To many, Janus may feel like the end of the long project begun by a small group of anti-union businessmen nearly 65 years ago. But it is not. Both the committee and the foundation are adept at using each win, as well as each loss, to open up new avenues to attack unions. Going forward, these will undoubtedly include campaigns to drag private-sector unions into the right-to-work domain and efforts to attack the law that states that, when a union wins an election, it is the exclusive representative of all the workers in the bargaining unit.
Warning of this latter threat, Seattle University law professor Charlotte Garden explained: “Before Janus, I would have said that First Amendment challenges to exclusive representation were dead in the water, even considering the composition of the Supreme Court. Now I’m not sure at all. And if exclusive representation is held to be unconstitutional, the result will be total chaos.”
But the NRWLDF is unlikely to stop there: An even more imminent possibility, stemming from the foundation’s right-to-work victories, will likely be the effort to claw back what Justice Alito referred to in his Janus opinion as the “billions of dollars [that] have been taken by nonmembers and transferred to public-sector unions in violation of the First Amendment.” In other words, now that the NRWLDF, in conjunction with the five conservative Supreme Court justices, has succeeded in crippling unions’ ability to collect future dues, the next move will be to bleed them for past dues.
The Court has already waded into this issue. On May 21, the NRWLDF appealed Riffey v. Rauner to the Supreme Court. This case is built upon the group’s win in the 2014 case, Harris v. Quinn, which imposed “right to work” on hundreds of thousands of home health-care workers. Through Riffey, which failed at the lower courts, the foundation is suing SEIU for $32 million, while also making the radical argument that all the workers who paid fair-share fees should be presumed to have paid involuntarily, whether or not they objected to the union, and should get all their fees returned. It is unclear whether this case will succeed, but it is moving forward: On the day after Janus was decided, as part of the Miscellaneous Orders the Court issues, it quietly granted the appeal, vacated the lower court’s judgment, and remanded it for further consideration in light of Janus.
In the long years leading up to this moment, labor has tried to push back against these schemes by rebranding “right to work” as “right to work for less,” but the phrase never broadly caught on. Now it seems the committee and the foundation have fully embraced labor’s insult as part of its definition of “freedom.” Mark Janus made the argument that workers should have the freedom to choose to earn less money and receive fewer benefits, even if it hindered other workers’ abilities to form a union and the state’s ability to maintain labor peace. And a majority in the Supreme Court bought it.
This is the National Right to Work Committee’s and the Legal Defense Foundation’s legacy. They have helped impose their fun-house vision of law and labor, where civil-rights laws are used to hurt workers’ organizations for interests that align with the employer. And neither Congress nor the states can easily fix it, because the Supreme Court made it a matter of constitutional law and interpretation.
In her dissent in Janus, Justice Kagan warned that the Supreme Court majority has turned the “First Amendment into a sword.”
“Today,” she wrote, “is not the first time the Court has wielded the First Amendment in such an aggressive way…. And it threatens not to be the last.” This accusation applies equally to the committee and the foundation, which, after helping to firmly embed the concept of “right to work” into modern conservatism, are already strategizing their next offensive.