The most politically partisan—and politically activist—Supreme Court in modern American history has already assumed that, when it comes to electioneering, corporations have pretty much the same rights as human beings. Indeed, the High Court’s Citizens United ruling has given corporations unprecedented flexibility to act on their own behalf to influence election campaigns and results.
Yet, the same Court has now said that groups of actual human beings—trade unions that have organized public-sector workers—must sacrifice their flexibility in order to meet standards never before demanded of labor organizations.
Do we detect a pattern here?
That pattern was on stark display in Thursday’s Supreme Court decision to require that public-employee unions get specific permission from employees in workplaces they represent for special assessments that are used to advance political agendas. This high court swipe at the ability of working people to make their voices heard in the political life of communities, states and the nation won’t get the attention that will be accorded the Supreme Court’s equally politicized ruling on the Affordable Care Act.
But there’s a good argument to be made that, by further skewing the Democratic process that was so badly warped by the 2010 Citizens United ruling, the court has done even greater damage to the long-term prospects for renewing the republic.
The damage is contained in a structural shift that will make unions — and potentially other membership-based organizations — less flexible and functional in the political fights of the future.
Traditionally, unions in the public sector have maintained “opt-out” systems, which allow any worker in an organized shop to indicate that they do not want to support union political action. Those dissenting workers are allowed to avoid contributing to campaigning, even when it is on behalf of their interests.
Now, because of the Court’s ruling, public-sector unions are required to develop new and more burdensome systems in which represented employees must “opt-in” before they can support political initiatives by organized labor.
The Court-ordered shift creates an incredible bureaucratic nightmare for organizations that represent hundreds of thousands of workers. (And it was entirely unnecessary, as key unions have indicated that they would be willing not just to maintain their “opt-out” clauses but to refund special assessment money to any member or represented nonmember who might object to a political initiative.)
To get a sense of how onerous the Court’s move could turn out to be—especially at this late stage in an election cycle—just imagine if the Court had on Thursday ordered corporations, corporate groupings and corporate political action committees to get pre-approval from all shareholders before spending money on political or lobbying initiatives.
Of course, that is unimaginable.
But that is the barrier to public-sector union activism erected on Thursday by the Court majority (in a decision written by Justice Samuel Alito and agreed to by Chief Justice John Roberts Jr. and Justices Antonin Scalia, Anthony Kennedy and Clarence Thomas).
The clearest objections to the ruling came from Justices Stephen Breyer and Elena Kagan, who objected to the requirement that unions get advance approval from workers to “opt-in” for political activity.
Breyer, in his dissent, fretted (appropriately) that Alito’s sweeping yet at times vaguely worded opinion could be read as a requirement that public-sector unions seek affirmative approval from all members before they can respond to an immediate political test.
“The debate about public unions’ collective bargaining rights is currently intense,” wrote Breyer in his dissent. “The question of how a nonmember indicates a desire not to pay constitutes an important part of this debate.… There is no good reason for this court suddenly to enter the debate, much less now to decide that the Constitution resolves it.”
Breyer’s right. And there will be much wrangling over this decision.
But no one should miss the intent of the Court majority, which was to tip the balance a little more toward corporate power, and toward the candidates and parties that benefit most from campaign-finance rules that are designed to allow corporations and CEOs to speak most loudly.
To be sure, corporations are not universally Republican in their political engagements. But they do play politics with an eye toward advancing their own interests, and their own bottom lines, rather than extending or improving the public sphere. Increasingly, this has inclined them toward conservative Republicans and, in some cases, conservative (or corporatist) Democrats.
Unions, particularly public-sector unions, are not universally Democratic in their political engagements. But they do play politics with an eye toward assuring that public institutions are strong and functional—and this usually inclines them toward more progressive Democratic contenders.
Strengthening the hand of unions maintains the commons. And it maintains democratic control over decisions made in our name as citizens.
Strengthening the hand of corporations fences in the commons—and ultimately increases the prospect that they will be sold off to the highest bidder.
This Court’s majority is, by every measure, on the side of the highest bidder.