Yesterday we looked at the efforts by some on the left to undermine the Supreme Court’s upcoming decision in Janus v AFSCME by claiming that a decision going against the unions could cause “a fiscal crisis.” Since the crisis was one created by the government to begin with and the “cure” would only benefit retiring union members, that proposal held up about as well as a wet cardboard door.
Today the editorial board of the Washington Post attempts a different tactic, urging the Supremes to find a third way and craft some sort of compromise between the parties involved. Sounds totally reasonable, right? Well, in the interest of fairness, let’s see what they’ve got to offer.
A reversal of precedent, with such direct partisan impact, after such a politicized recent change in its personnel would not serve the court’s legitimacy. Perhaps sensitive to that reality, Justice Stephen G. Breyer repeatedly suggested at oral argument that the court adopt a compromise — one that would not upset precedent but would update it, to take account of genuine First Amendment concerns related to public-sector collective bargaining. Specifically, Mr. Breyer asked attorneys for the contending parties for their views on a solution under which employees could be required to pay, but only for a narrow range of collective-bargaining duties as defined in state law, rather than for tangentially related matters, such as union conventions, for which unions have heretofore been permitted to charge.
In addition to increasing objectivity and consistency in the setting of the mandatory fees, this solution has the advantage of being previously endorsed by none other than Scalia, who wrote in 1991 that “where the state imposes upon the union a duty to deliver services, it may permit the union to demand reimbursement for them.”
You’ll note that the WaPo editors start off with the same admonition we’ve seen in previous publications before getting to their compromise. They sternly remind the Supreme Court that there’s precedent involved here, ladies and gentlemen! Stare decisis! You’re going to damage your credibility if you reverse any part of a decision made more than four decades ago. That’s showing up so often this week that it’s almost as if someone handed out a script or some talking points for everyone on the left to use. But we should ask ourselves if the Washington Post would be quite so insistent on respecting past decisions if a new case arose which ran contrary to the court’s findings in Citizens United. Food for thought.
Moving on, let’s get to the great compromise being offered at the WaPo. Their idea is to have both parties agree to a modified system where dues are collected from the non-members but the money would be used “only for a narrow range of collective-bargaining duties.” On the surface that may sound like an elegant solution to the First Amendment questions under discussion. If the unions are forced to only spend the money on specific costs related to negotiating for better compensation and benefits and not for their political campaigning costs, problem solved, right?
To borrow a phrase from across the pond, that’s total bollocks. The reason is that money is fungible and this trick never works. If the unions are forced to do a bit of extra bookkeeping to show that the non-members’ dues are going specifically toward certain collective bargaining expenses, that means that less will be required for those expenses out of the members’ dues so their money can be more fully channeled into their primary purpose of electing Democrats.
The same thing happens in politics when, for example, either the DCCC or the NRCC ask you for money. You might hestitate and say that you certainly support candidate X running in Ohio’s 2nd district, but you don’t want your donation going to help Candidate Y down in Florday. “No problem!” they will tell you. Your money will be specifically earmarked for candidate X’s campaign. But what they fail to mention is that for every donor who makes that choice, that’s less money that they have to kick in from their general fund, freeing up that much more money to go to candidate Y. That’s how the fungible nature of money works.
So this compromise is no compromise at all. The unions would still be taking cash from non-members and expanding the amount they can spend on political activism. They’d just have to do a bit more fancy bookkeeping to cover their tracks.