Rauner’s ‘fair share’ executive order fights for the First Amendment

Jacob Huebert

Senior Attorney at Liberty Justice Center, author of Libertarianism Today.

Jacob Huebert
/ Labor
February 11, 2015

Rauner’s ‘fair share’ executive order fights for the First Amendment

Simple logic. Respect for rights. These are things Illinoisans are not used to seeing from their state government, so perhaps it’s understandable that some are having trouble understanding what Rauner has done and why he has done it.

Gov. Bruce Rauner issued an executive order on Feb. 9 directing state agencies to stop taking so-called “fair share” union fees from state workers who have chosen not to join a union.

Government-union bosses are predictably livid about losing a revenue stream they have taken for granted for decades. So they’ve taken to the media claiming that Rauner is acting unlawfully, like a king or a dictator, because his order conflicts with state law and the unions’ collective-bargaining agreements, which purportedly authorize them to take fees from nonmembers.

But the union bosses are wrong and Rauner is right. Here’s why:

Like all public officials, Rauner has taken an oath to, above all, uphold the federal and state constitutions. He therefore has a duty – which trumps all of his other duties – to refrain from taking any actions that would violate citizens’ constitutional rights.

Forcing government employees to support a union, as Illinois was doing until now, violates their First Amendment right to freedom of association. Therefore, Rauner correctly considered it his duty to end this practice, and he did.

Simple logic. Respect for rights. These are things Illinoisans are not used to seeing from their state government, so perhaps it’s understandable that some are having trouble comprehending what Rauner has done and why he has done it.

As soon as he issued his executive order, Rauner also filed a lawsuit in which he asked a federal court to declare his order lawful because it was necessary to protect state workers’ First Amendment rights.

This is also extraordinary. The governor has gone to a court and said, in essence: “Here’s what I’ve done because I think it’s what the Constitution requires me to do. I’m confident enough that I’ve done the right thing that I’m willing to put it to the test and, if it turns out I’m wrong, to be held accountable.” And he’s doing it with pro bono attorneys, not at taxpayers’ expense.

Again, not the sort of thing Illinoisans are used to seeing from their political leaders.

Will Rauner prevail? Being right is no guarantee that a court will rule in your favor, of course, but there are reasons to believe he will.

Last summer, the U.S. Supreme Court ruled in Harris v. Quinn that the First Amendment prohibits the state from forcing people to pay union fees if they receive a government subsidy but are not actual government employees. (That decision struck down forced-unionization schemes that former governors Rod Blagojevich and Pat Quinn created through their own executive orders.)

Rauner’s case will likely give the Supreme Court the opportunity to take the next logical step and rule that forcing actual government employees to pay union fees violates their First Amendment rights, too.

The only obstacle is a 1977 Supreme Court decision, Abood v. Detroit Board of Education, which held that the government cannot force public employees to pay for a union’s political activity but can force them to pay for a union’s representation expenses. The court held that making workers pay “fair share” fees was justified – even though it infringed upon their First Amendment rights – because it was supposedly necessary to maintain “peace” in the workplace and to prevent non-union workers from “free riding.”

In Harris v. Quinn, the court made clear that it thinks the Abood case was wrongly decided for several reasons. For one, it doesn’t make sense to separate public-sector unions’ political activities from their representational activities. All speech by public-sector unions is political because all of it pertains to issues of public policy, such as how much government workers should be paid and how government programs should be run. Therefore, forcing people to support a union in any amount means forcing them to pay for political speech.

Also, a desire to prevent “free riding” can’t justify violating people’s First Amendment rights. In general, people can’t be forced to pay for other people’s lobbying even if they might benefit from it. There’s no reason why unions should be specially privileged to force people to pay for their political advocacy when everyone else must rely on voluntary contributions. Forcing people to pay union fees not only violates the rights of the people who are forced to pay; it also gives unions an unfair advantage in the marketplace of political ideas.

As the governor has acknowledged, the lower federal courts may consider themselves bound by the Abood decision and rule against him. But the Supreme Court will not consider itself bound, and the Harris v. Quinn decision strongly suggests it will uphold this executive order.

That would be a triumph for the First Amendment rights of government workers not only in Illinois, but nationwide. For once, lllinois would lead the nation in expanding freedom instead of in destroying it. And public-sector unions everywhere would have to persuade people to give them money voluntarily to advance their ideas, just like the rest of us have to.

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