Exploring potential legislative ways to limit the damage of Friedrichs

Public sector labor unions across the country have been grimily preparing for the likely negative results  from the Friedrichs vs. California Teachers Association case heard two weeks ago. The opinion in Friedrichs (undoubtedly 5-4, written by a super smug Samuel Alito, with a vicious dissent coming from Elena Kagan) will likely ban union agency fees on the grounds of free speech.  

Previously, I have outlined why this opinion shouldn’t be conflated with the end of public sector unionism. Here, I outline a legislative step unions and workers might be able to lobby for to blunt some of the impact of yet another depressing Alito majority opinion.

The likely outcome of Friedrichs will hurt labor -- but it won't destroy it

Two weeks ago, progressives had their days ruined by oral arguments in the Supreme Court in the case Friedrichs vs. California Teachers Association. The case has led to numerous breathless headlines declaring that this will be the end of public sector unions in the United States, comparing the case to what happened to unions in Wisconsin, where organized labor has been in a depressing tailspin since the passage of Act 10 in 2011, which eliminated collective bargaining rights for most public sector unions.

Those comparisons are far overblown: Freidrichs will hurt public unions, but they still will retain most of their rights. Here, I’ll discuss what the likely decision against the unions will do to hurt worker’s rights, but I’ll also emphasize that it’s important to remember that workers will retain considerable rights to bargain – unlike in Wisconsin.

Supreme Headaches

What Linda Greenhouse says.  The Friedrichs case is atrocious on so many levels.

Today in counterproductive posturing, LA edition

I fail to see how stopping the construction of housing will make housing more affordable.

Granted, I do live inside the loop in Houston and I recognize from here and my experiences in Ann Arbor concerns about only building super-fancy housing for rich people. But the solution is mandating affordable housing or thinking about clever ways to subsidize housing for working class people, or better zoning rules like cutting parking minima. 

But simply stopping the construction large apartment projects in dense areas only drives up rents in the existing housing stock, which forces out working class and poor people. Or just as badly, it forces the development to the outer rim of the community -- which induces more sprawl, traffic, pollution, wasted time etc.

Good news from Louisiana

This is long expected, but it is good news all the same. Louisiana's new Governor, John Bel Edwards (D) just made it official: the state is expanding Medicaid.  Edwards estimates that the expansion will get 300,000 uninsured residents  coverage. 

One of the biggest immediate bureaucratic hurdles left is the result of former governor Bobby Jindal (R) gutting staffing in the state health department, but the incoming director thinks she has found a way to hire the 200 + staffers needed to help process new Medicaid applications.

There may be a few other hiccups, but most of the pieces are in place: this is now primarily an administrative task, not a legislative one.

Let the good times roll!

Saving the world one state or province at a time: a look at existing carbon-pricing schemes in North America

With the Paris climate accord in place, now comes the hard work of actually implementing emissions reductions goals to, well, save civilization. There are many, moving parts to making this work; one of the largest set of which involve putting a price on emitting carbon.

There are two major ways to do this: cap-and-trade program, and a direct carbon tax. Cap and Trade sets a total cap on emissions for regulated sectors then lets enitities purchase emissions credits they can cash in for their emissions or sell on a secondary market if they don't exceed their cuts. Carbon taxes, in contrast, directly place a levy on carbon emissions from regulated sources. Both have their supporters and detractors, and I'm not going to wade into that debate here (personally, I'd support a well-designed plan of either).

Follow me below the fold for a brief look at the carbon-pricing landscape in North America. I don't have detailed looks at the programs (though I do link to formal reports that detail each of the existing or proposed programs). What this should serve as is a basic lay of the land and give an idea of how these already successful programs lay an extremely important groundwork for the deeper emission cuts that will need to come.

ACA eases extreme financial stress from medical bills, but out-of-pocket costs remain a problem

The Kaiser Foundation and the New York Times have teamed up on an interesting study to measure the number of Americans suffering from financial hardship due to medical bills.

The good news is that by expanding insurance accessibility, ACA has helped steadily curtail the amount of financial stress Americans experience due to health bills.  Insured Americans are much less likely to suffer individual financial stress related to health bills.

The ACA has helped affordability, but we're still

not here yet.

The bad news is a significant portion of Americans between the ages of 18 and 65 with insurance -- 20 percent -- still suffer significant financial hardship. (That's a heck of a lot better that the 53 percent without insurance reporting having problems, but it's a real issue).

Things are getting better, but we haven't reached single-payer nirvana where you can show your provincial ID card and focus on getting well.

The Times and Kaiser go into details in their reporting, which you should read.  However, follow me below the fold for a general overview of the situation.

Threats to Polish Democracy

After two decades of fairly widespread progress toward consolidated democracy, the last several years have brought some notable setbacks, linked to the election of conservative nationalist parties.

First, it was Hungary. A Christian nationalist party called Fidesz won a free and fair election in 2011, which granted it a supermajority in the country's unicameral parliament. The party then used its power to rewrite the country's constitution to permanently hardwire Hungary's political system in its favor. The reforms crippled the independent media and judiciary. They also changed the electoral system and redrew districts to make it extremely difficult for opposition parties to win a majority. Finally, they required 2/3s majorities for any future government to agree on replacing electoral commissioners, judges and other important officials. Read this post by Kim Lane Scheppele for a concise and depressing summary. 

Essentially,  the massive electoral victory allowed Fidesz to engage in a wholesale restructuring of the Hungarian state; the party then forced through a constitutional overhaul that locks those policies in place no matter what future  governing majorities might think.

Now Poland is exhibiting several alarming similarities to Hungary.

The newly-elected government of the Law and Justice Party (PiS) has pushed through reforms that limit the power of the Constitutional Court to review government policy for constitutionality and stack the court with PiS appointees.  A law cracking down on the independence of public media and making it more nationalist in scope appears to be next. We'll see where this goes, but the trajectory is not good.

Both Fidesz and PiS are conservative, nationalist, Christian-identified parties.

While both of these developments are alarming and discouraging, they do raise fundamental points in democratic theory: What issues should merely be "policy" issues that can be changed by regular order, and which ones rise to the level of needing enshrined in a national constitution and requiring supermajorities to change?

Labor's prospects over the next several years look alarming

As another election year dawns, I find myself contemplating the future of the labor movement.

The immediate future looks grim.

That isn't to say that the labor movement is going to die, or that unions won't continue to play a role or help working people. And it certainly doesn't mean that activists should stop fighting for the rights of working people everywhere.

However,  it's much more likely than not that the labor movement is going to suffer some serious hammer blows in 2016 and the remaining years of the decade.

I'll focus narrowly in this post on the spread of (so-called) Right to Work (for less) laws (RTW).

RTW is an insidious concept that cloaks itself in righteous language to divide workers and drastically weaken the power of their organizations.  By the National Labor Relations Act and the state statutes that govern collective bargaining for state and local public employees, unions have to represent all employees in a bargaining unit.  In 25 states, the union has the ability to bargain to charge fair-share fees of all member of the unit, which represent the costs of collective bargaining.  Full dues, which represent political activities engaged in by the union, are only paid by individuals who want to be members who in turn have rights to vote and participate in the governance of the union.

In an aside, remember that in order to represent workers, unions have to win an election to become the bargaining agent, and they are controlled by the members through democratically elected officers. Finally, they can be decertified if a majority of workers vote in an election to remove or replace the union. This is a fact glossed by anti-worker forces.

What RTW laws do is allow workers to free ride of the union's efforts by banning fair share fees. The corporate-backed groups and think tanks pushing RTW argue that workers have a right to not join a union (though they are rather silent on a worker's right to join a union). Of course, though banning fair-share fees, RTW laws still compel a union to represent any one in a bargaining unit. As a result, we create a free-rider problem described by Mancur Olson: why should you pay for something you can get for free?

RTW is insidious because it only appears to cripple a small part of collective bargaining rights: in itself, it doesn't touch the ability to bargain for better wages or working conditions. But by undermining the union finances, it cripples the ability of a union to organize, bargain and protect strong contracts, which can lead to fewer members, which leads to further financial erosion. At worst, a death spiral happens, leaving a bunch of isolated, cynical workers in its wake -- who then can be easily exploited by unfettered bosses.

Currently 25 states have RTW laws, and 25 do not. Since 2011, when Scott Walker eviscerated public sector unions in Wisconsin, three states have jumped on the RTW bandwagon: Indiana, Wisconsin and Michigan.  From a worker's perspective this should be alarming, because all three of these states are in the industrial Midwest, which traditionally has a strong union presence. Michigan was the birthplace of the United Auto Workers (UAW), whereas the Association of State, County and Municipal Employees (ASCME) originally formed in Wisconsin.

As the parties have polarized and the remaining labor-friendly Republicans retire or are overwhelmed by their conservative colleagues, this momentum is likely to continue.

Extreme Risk:

West Virginia: I suspect it's pretty much all over in West Virginia. Like many Appalachian states over the last several election cycles, the legislature has become sharply more conservative, with the GOP breaking the dam in the 2014 elections. A RTW bill was shelved in 2015, but with GOP gains likely in both houses of the legislature and a Republican taking over the governor's chair very likely in 2016, in 2017, RTW's arrival will be a given.

Kentucky:  A slimmer and slimmer Democratic majority in the state House of Representatives is the only thing standing between RTW and Kentucky. The extreme conservative Matt Bevin's win as governor jumps this state from medium risk to extreme risk, as anti-labor policies are core to Bevin's identity -- in two of his first executive orders, he discarded higher minimum wage requirements for state agencies and issued a hiring freeze in filling unstaffed positions.

The Democrats may hang on to their house majority in 2016, since they were somehow able to cling to it in the low-turnout year of 2014.  However, the off-year election of 2018 is another animal entirely.

Several Kentucky counties have already tried to issue RTW laws on their own; these efforts are currently tied up in court, but the winds are very much blowing the wrong way for labor rights in this state.

High Risk:

Missouri:  Democratic Governor Jay Nixon vetoed a RTW bill in 2015 and the Democrats backed by a few nervous Republicans have managed to sustain those vetoes in the legislature, despite the GOP maintaining a supermajority in both chambers. Unlike West Virginia, the Democrats have a fighting chance in the governor's race in 2016, despite Missouri drifting further into the GOP orbit over the last decade. With a Democratic win in the governor's race, Missouri is likely safe for another four to eight years. With a GOP victory, RTW would likely be the very first thing on the government's agenda in 2017.

Medium Risk:

Ohio: With Republicans in strong command of both houses of the state legislature and the governorship for the foreseeable future and likely maintaining the governorship, Ohio would seem to be a likely candidate for a RTW bill -- and one is currently percolating in the legislature.

However, Ohio Republicans have a bitter memory of the last time they tried to push a major anti-worker bill through the legislature holding them back. In 2011,  Ohio Republicans pushed a Wisconsin-style bill designed to strip most collective bargaining rights from public employees. The bill passed, but  Labor and progressive groups gathered more than a million signatures to force a referendum, in which 62 percent of voters rejected the bill. 

That memory may be holding the GOP in check for now, but if other states continue to push through anti-labor laws, Ohio Republicans will likely eventually press forward.

Possible risk

Montana:  Montana's state legislature has been in solidly Republican hands since 2010, but Democrats have held the governor's chair. Incumbent Steve Bullock is in a reasonably strong position for the blue team, so hanging on to labor rights for at least four more years appears possible in this traditional mining state.

New Mexico: New Mexico currently has Democrats in control of the State Senate, but lost control of the House of Representatives in 2014.  Presidential year turnout will help protect the Democratic senate advantage in 2016 and perhaps help them retake the house.  But if Democratic power in the legislature erodes further, anti-labor legislation will be on the agenda when a Republican is governor.

New Hampshire and Pennsylvania might also be at risk. The Granite state occasionally gets massive GOP majorities in the two houses of its legislature, as it did after 2010. In that case a few moderate Republicans helped the Democrats in the house sustain Democratic governor John Lynch's veto of a RTW bill in the 2011-12 session. As long as the Democrats hold the governor's chair, they should be OK here, but elections are close and there is an open seat in 2016.  Pennsylvania is safe as long as Democrat Tom Wolf, elected in 2014 is in office, but the GOP has a built-in advantage in the state house and its majorities are becoming dominated more and more by extremely conservative ideologues.  Protecting Wolf in 2018 and drawing better districts in 2020 will be key to keeping the Keystone state working people from getting their collective bargaining rights curtailed.

The Supreme Court

This list doesn't count the worst probable hammer blow that's going to fall on labor this year. That would be Friedrichs vs. The California Teacher's Association, which has made its way to the Supreme Court a case set for oral arguments on January 11. The case will likely result in a 5-4 decision -- authored by Sam Alito--  overturning nearly four decades of precedent and invalidating fair share fees for all public sector unions on the specious grounds that collective bargaining with the government is a form lobbying (political speech), which cannot be compelled. Of  course, the union will continue to have to represent the interests of all of its members without their financial support, but I guess speech rights for dues payers aren't as important.

I so do weary of Alito's conception of Freedom of Speech in which it becomes much easier for wealthy owners to speak (see Citizens United) and much more difficult for working class people to organize so they can speak.

Again, we shouldn't despair from the likely reverses that are coming. The movement goes on and labor will continue that struggle. However, we should be aware that the struggle is likely going to become more difficult, though if we can win a few important elections -- we can blunt some of the blows.

And remember, that the only way to overcome RTW both legislatively and on the ground is to organize.

Solidarity.