William Forbath –
Unlike the workers’ organizations in Kate’s study, just about everything the striking teachers did in West Virginia and Kentucky fell outside the bounds of legality – the strikes themselves, the efforts to “bargain” over not only teachers’ pay but also the states’ miserly education budgets and unjust tax codes, even the stab at collective bargaining itself. It may have been because their demands were broad-based and popular that the striking teachers suffered no legal sanctions and state repression along the way. But not every collective action on the part of hard-hit public employees in red states (or the federal government) is likely to be so lucky. As the anti-strike injunctions and arrests roll out, labor constitutionalism will beckon.
Anyone who has read the Janus case will notice that the West Virginia and Kentucky teachers’ strike demands are a study in what Justice Alito has in mind when he insists that the so-called “economic” and the so-called “political” aspects of public employee union activity are really inseparable. It’s all “political”; and therefore, as Alito and the Janus Court see it, the first amendment forbids any law that enables such unions to exact from unwilling workers any payment of so-called “fair share” of union expenses, even in respect of so-called “economic” chores like collective bargaining and contract administration. Merely exempting such workers from paying their share of the union’s “political” expenses (for lobbying, political campaigning and the like) – which had been the first amendment rule for decades – is not enough. After all, while making a state’s education budget a “bargaining” issue, as the striking teachers tried to do in West Virginia and Kentucky, is transparently a political action, even demanding a hike in teachers’ pay is an intervention in the state’s budget politics. And the first amendment means that no one can be forced to contribute to, or associate herself with, a political cause she objects to, including higher pay, collectively bargained-for. Thus spaketh the Roberts Court.
Of course, this hardly matters to the West Virginia or Kentucky teachers. Unlike Illinois, where Janus took place, under West Virginia and Kentucky law, the teachers have no rights to form unions and engage in collective bargaining. So, the loss of fair share fees is the least of their worries. Likewise, at least for now, Janus does not apply to private sector unions. The same libertarian first amendment logic will demand the same result in the private sector, however, if the Court decides to overturn more old precedents, and find state action in virtue of the federal law allowing “fair share” fees collection. And if the Court does that, it may not stop there. The libertarian “weaponized first amendment” could upend yet more of (what’s left of) the old New Deal framework.
As labor activists, lawyers and policy mavens think about next steps, one possibility is to try to shore up the old accommodations. That may be the best immediate tactic. But by now, many lawyers, scholars and activists on the left agree that the decrepitude of the New Deal framework, along with the Court’s unvarnished neo-Lochnerian constitutional attack on that framework, seem to require finding alternative starting points, and an alternative account of the Constitution’s bearings on labor law. This has salience for public and private sector workers, in red and blue states, alike. And the project of coming up with alternatives has gone far enough to produce a few friendly rivals, with some important differences of constitutional outlook amongst them.
William Forbath is the Lloyd M. Bentsen Chair in Law and Associate Dean for Research at the University of Texas at Austin School of Law.