At first blush, Illinois Gov. Bruce Rauner’s anti-union maneuvers last month seem perfectly in line with the recent spate of union-busting efforts in other Midwestern states. Indeed, Rauner seems to take a page right from the playbook that Gov. Scott Walker wrote for Wisconsin and that the legislatures and governors in some of our sister states largely have adopted.
But Rauner’s two-step goes well beyond that. While efforts elsewhere are designed to break up and dilute public-sector unions in those states, Rauner’s moves are calculated to break up and dilute public-sector unions across the country. In this way, he didn’t simply borrow from Walker’s playbook; he rewrote it.
To see this, it helps to know a little history and law. The story starts in 1977, when the Supreme Court considered a challenge to Michigan’s public-sector “agency shop” law. That law required non-union public-sector employees to pay a “fair share” fee to the public-sector union to support its collective-bargaining activities. The law was designed to ensure that nonunion employees, who benefit from the union’s work (such as negotiating higher wages), paid their fair share for that work.
Nonunion employees sued, arguing that the law violated their right to free association—or, rather, their right not to associate with the union—under the First Amendment. But the Supreme Court rejected that argument. In Abood v. Detroit Board of Education, the Supreme Court recognized that mandatory fair-share fees for nonunion public-sector employees helped protect labor peace and ensured that nonunion employees could not ride free on the work of the union. The court said that those state interests justified the fair-share requirement, even despite the First Amendment right to association.
Since Abood, however, the court consistently has chipped away at its holding. The court clarified that fair-share fees only can apply to a union’s shop-related activities, not political activities. It later ruled that a union must provide notice and an opt-out opportunity before it levies a special assessment. Most recently, in an Illinois case, Harris v. Quinn, the court ruled that the state fair-share requirement didn’t apply to certain state employees. The court also took a shot at Abood, writing that it rests on “questionable foundations” and probably leaving it hanging by just a string. Still, it remains the law of the land.
Enter Rauner. Last month, he issued an executive order that barred the enforcement of fair-share provisions in public-sector contracts. The order means that nonunion employees can benefit from a public-sector union’s work without paying for it. The order also means that there now is a strong incentive not to join a public-sector union. (Why pay union dues when you can free-ride on a union’s work?) And that means that public-sector unions will slowly fade away. Such is the experience in our sister states; such is the reality of “right to work.”
But there’s more. In justifying the executive order (which, after all, breaks a key term in public-sector contracts and violates Illinois law), Rauner invoked his duty to adhere to higher law, the U.S. Constitution. In particular, he wrote that Illinois’ fair-share law and public-sector contracts violate the First Amendment. He wrote that the Supreme Court telegraphed the demise of Abood in Harris v. Quinn, and that it was his duty to honor what amounts to his prediction that the court will overturn Abood—even though Abood is still on the books. In other words, Rauner’s order violated public-sector contracts and Illinois law all in the name of a constitutional prediction.
But there’s still more. Rauner then sued in federal court seeking a declaratory judgment that his order was constitutional. This kind of pre-emptive suit is highly unusual. In the ordinary course of things, the group harmed by an action would bring the suit (in this case, the unions), and the actor (the governor) would defend. Rauner turned this upside down.
There’s only one way to understand this aggressive two-step: The governor is trying to tee up a Supreme Court challenge to Abood. And he wants his name on the case. In other words, Rauner isn’t satisfied merely gutting public-sector unions here in Illinois; he’s trying to gut public-sector unions around the country. And he’s doing it in blatant violation of Illinois law.