Bruce Rauner has been governor of Illinois for barely a month, but he is already taking aim at the state’s labor movement. On Monday he signed an executive order that would effectively impose a right-to-work regime on Illinois’ public sector.
Such laws, which exist in 24 states, bar unions from charging automatic fees to nonunion employees in the workplaces they represent. Unions say the automatic fees eliminate the “free rider” problem in union shops where not everyone is a union member: Because unions negotiate on behalf of all workers in a given bargaining unit — regardless of whether they are members — they say they should be able to collect representation fees from everyone in the unit.
In his Feb. 9 executive order, Rauner argued that such automatic fees — known in the Illinois public sector as fair share fees — violate the First Amendment because they “compel some state employees to subsidize the political speech of public sector labor unions of which they have chosen to not be members.”
That reasoning mirrors the legal argument advanced in Friedrichs v. California Teachers Association, a lawsuit that could go before the Supreme Court later this year. If the court decides to hear the case and rules in favor of the plaintiffs, then the entire U.S. public sector would effectively fall under a right-to-work regime.
In order to institute that regime and declare all public sector unions’ fair share fees unconstitutional, the court would have to overturn its ruling in the 1977 case Abood v. Detroit Board of Education, which held that such fees are constitutional. While the Supreme Court has the power to overturn prior decisions, the governor of Illinois does not, Illinois Institute of Technology law professor Martin Malin said.
“The governor seems to think he has the authority to overrule binding Supreme Court precedent,” Malin said by email, of Rauner’s contention that fair share fees are unconstitutional despite the Abood ruling. “In neither Knox nor Harris [prior cases] did the Supreme Court overrule Abood, and only the Supreme Court has the authority to overrule its prior decisions.”
Rauner’s press secretary, Catherine Kelly, said in an email to Al Jazeera that the Supreme Court described the Abood decision as “questionable on several grounds” in its 2014 Harris v. Quinn majority opinion.
"Gov. Rauner believes the current collective bargaining agreement is unconstitutional and felt compelled to act for the nearly 6,500 employees paying unfair share union dues," she wrote.
Right-to-work bills are sweeping the Midwest. Indiana and Michigan passed such legislation in 2012; Republicans in Missouri, Wisconsin and Ohio are attempting to move forward with laws of their own. (Ohio Gov. John Kasich signed a right-to-work bill in 2011, but that law was overturned by referendum less than a year later.)
Rauner’s strategy for instituting a right-to-work system has been more idiosyncratic, perhaps reflecting the fact that straightforward right-to-work legislation is unlikely to survive Illinois’ Democratic-controlled state legislature. His executive order bypasses the need for legislative approval, but unions and their allies say that — in addition to running up against Abood — the order violates the separation of powers outlined in the Illinois Constitution.
The public sector union AFSCME Council 31 denounced the executive order in a statement issued Monday, calling it “a blatantly illegal abuse of power.”
“Our union and all organized labor will stand together with those who believe in democracy to overturn Bruce Rauner’s illegal action and restore the integrity of the rule of law,” Council 31 Executive Director Roberta Lynch said in the statement.
Rauner has asked the international law firm Winston and Strawn to seek a declaratory judgment in federal court reaffirming the legality of his executive order. Marquette University Law School professor Paul Secunda described that maneuver as “bizarre,” noting that the legal rationale for the executive order rests on the governor’s belief that current Illinois law violates the First Amendment.
“It’s weird that the state is filing a declaratory judgment seeking to declare its own law unconstitutional,” Secunda said.
Chicago Teachers Union staff coordinator Jackson Potter said he sees an ulterior motive behind the executive order. The AFSCME’s collective bargaining agreement with the state expires this year, meaning negotiations will begin soon.
“I think it [the executive order] is a way for him to try and use shock and awe and put AFSCME at a severe disadvantage going into negotiations, using threats and smoke and mirrors to essentially be able to get some concessions out of public employees,” Potter said.