Supreme Court decision to be key part of Rauner's legacy, win or lose in November
By Rick Pearson
Jun 29, 2018 at 4:00 PM
Regardless of the November election’s outcome, five U.S. Supreme Court justices may have decided a key part of Republican Gov. Bruce Rauner’s legacy when they ruled this week that public workers don’t have to pay into unions they don’t want to join.
“There’s no question this has national ramifications. It alters a lot of the equations of American politics and the labor movement,” said David Yepsen, former director of the Paul Simon Public Policy Institute and a longtime observer of national politics. “I don’t think there’s any question it’s a big part of his legacy — if not the biggest.”
The court’s 5-4 decision to ban so-called “fair share” union fees paid by nonmembers culminated years of Rauner’s efforts to weaken the power of organized labor in government and its financial allegiance to Democrats. He has called the interconnection a “corrupt bargain,” and the path to Wednesday’s ruling can be traced to before he ran for governor.
Six months before he announced his bid, Rauner appeared at a 2012 policy forum at the Art Institute where he railed against the Chicago Teachers Union, the Service Employees International Union and the American Federation of State, County and Municipal Employees, the union at the heart of the court’s opinion.
“I think we can drive a wedge issue in the Democratic Party on that topic — that real folks will say, ‘You know what? For our tax dollars, I'd rather help the disadvantaged, the handicapped, the elderly, the children in poverty. I'd rather have my tax dollars going to that than the SEIU or AF-Scammy who are out there for their own interests,’” Rauner said at the time.
“The union basically is a bunch of politicians elected to do certain things — get more pay, get more benefits, less work hours, more job security. That's what they're paid to do. They're not about the students. They're not about results. They're not about the taxpayers,” he said, adding, “The whole structure of union control of our government has got to change.”
After becoming governor less than three years later, Rauner quickly instigated the legal action to launch that change. That move morphed into the landmark Janus v. AFSCME the Supreme Court decided Wednesday.
On Thursday, he hailed the ruling as “an historic victory for freedom of speech and freedom of political affiliation for public-sector employees.” But as the governor seeks re-election in a state with many union workers, he also tried to downplay the decision’s impact.
Asked if it would further motivate organized labor to work against him in the fall campaign, Rauner told WGN-AM 720, “I’m all for workers. I am pro-worker and pro-taxpayer.”
“Government unions will continue to exist,” he said. “It’s purely that state employees will have their constitutional rights protected.”
Rauner still is looking to unify a socially conservative Republican Party base that split in the March primary over his signature on laws expanding abortion, immigration and transgender rights. His campaign already is touting media coverage of the ruling to help try to heal the rift.
But the court decision on its own may not help unify the party. Third-party governor candidate Sam McCann, a Republican state senator from central Illinois, is a supporter of organized labor who espouses socially conservative views. McCann attacked Rauner over the court ruling, and he symbolizes Downstate areas that are largely Republican but peppered with state institutions and the union members who work there.
Then there is Rauner’s Democratic challenger, J.B. Pritzker.
Pritzker quickly sewed up labor support in his contested primary race, and on Friday he picked up an endorsement from the Illinois Fraternal Order of Police State Lodge. The billionaire heir to the Hyatt Hotel fortune has come on the scene able to help Illinois Democrats with his own money. That means unions like AFSCME don’t need to spend as much of their political money on the November election, and could focus more on recruiting and keeping members.
Yepsen said that while Rauner and “a lot of people who do not like unions … are going to be gloating” about the court decision, “they need to be careful what they wish for.” He and others see the ruling as benefiting Pritzker and Democrats at the ballot box.
“I think it will have an energizing and radicalizing effect on the (union) members. This has been the history of the labor movement all along. You start messing around trying to threaten unions and break unions and what’s the effect of it? It’s a mobilizing effect,” he said. “I think it’s an organizing tool, it’s a mobilizing tool, not just with public-sector unions but with all of labor, which is threatened.”
Adding to the “mobilizing effect” are elements of the Democrats’ voting base. State Rep. Christian Mitchell, an African-American Chicago Democrat whose district flows from River North to the South Side, cited the large numbers of minorities and women in the unionized public employee workforce.
“Teachers, first responders, sanitation workers and other frontline government employees have been the foundation of the oldest black middle-class communities in the country, like Chatham in Chicago, because we never finished desegregating the private sector,” he said. “Black women especially have always been overrepresented in these unions, and the good wages and stability afforded to them have been the backbone of our neighborhoods.”
University of Illinois Labor Education Program director Robert Bruno said women and minorities historically have found middle-class careers in public-sector jobs that have been “relatively free of the kinds of rank racism and gender discrimination practiced in the private sector.”
Bruno said the court’s ruling “will hurt millions of women and minority employees” and “increase labor’s political impact in Illinois in November.”
“The worker most likely to organize is an African-American female, working a low-wage job. That person is also the most likely to vote Democrat. You do the math,” he said.
The court overturned a 41-year-old decision that had allowed unions to collect “fair share” fees from nonmembers to pay for activities that aren’t political, like bargaining. The court ruled on Wednesday that it is impossible to separate political activity from a public employee union when politicians make decisions about wages and benefits, which are paid for by taxpayers.
With its deep fiscal problems, Illinois provided ample rationale for the court’s majority and was specifically cited in Justice Samuel Alito Jr.’s majority opinion.
“Illinois, like some other states and a number of counties and cities around the country, suffers from severe budget problems. As of 2013, Illinois had nearly $160 billion in unfunded pension and retiree healthcare liabilities. By 2017, that number had only grown, and the state was grappling with $15 billion in unpaid bills. We are told that a ‘quarter of the budget is now devoted to paying down’ those liabilities. These problems and others led Moody’s and S&P to downgrade Illinois’ credit rating to ‘one step above junk’ — the ‘lowest ranking on record for a U.S. state,’” Alito wrote.
“The governor, on one side, and public-sector unions, on the other, disagree sharply about what to do about these problems,” he wrote. Alito cited Rauner’s efforts to achieve savings through collective bargaining involving reducing worker benefits and wrote that the unions advocated for “wage and tax increases,” a graduated income tax system and closing “corporate tax loopholes” — issues that are part of the political debate.
The Supreme Court’s ruling comes 28 years after the last time it decided a case involving public employees and a Republican Illinois governor. In June 1990, the court on a 5-4 decision outlawed James R. Thompson’s patronage rules requiring Republican affiliation to be hired, promoted or get a transfer in his administration aside from top policy-level positions.
The decision then helped bolster public employee union membership.
The cases decided last week and nearly three decades ago show the wide arc that now-retiring Justice Anthony Kennedy, long known as a swing vote on the court, has traveled on First Amendment issues involving public employees.
In the 1990 case, Kennedy joined a dissent that said public employees did not enjoy broad First Amendment protections. But on Wednesday, he supported Alito’s opinion asserting First Amendment rights for public employees.
“Suppose, for example, that the State of Illinois required all residents to sign a document expressing support for a particular set of positions on controversial public issues — say, the platform of one of the major political parties,” Alito wrote. “No one, we trust, would seriously argue that the First Amendment permits this.”
Kennedy, though, previously had contended government could require its employees to support a particular political party under the First Amendment.
The 1990 patronage case meant issues involving hiring, promotions and transfers became items that state law required to be collectively bargained, Bruno said.
But Bruno said he believed the court erred this week by ruling that all of a public-sector union’s activity was political, without considering them a counterbalance to the inherent political nature of the work and agenda of elected officials. Public worker unions, he said, served as “protectors of the citizens’ interest in a professional bureaucracy.”