Why do corporate voices matter, but not union voices?

June 29, 2018
William A. O'Brien

The Janus case (Janus v. AFSCME), an Illinois challenge to a 1977 Supreme Court decision requiring public employees who are not dues-paying union members to pay “agency fees” to the union for the cost of being represented, was decided by the Supreme Court.

There was every expectation that the addition of Neil Gorsuch to the court would ensure a conservative victory against collection of these fees.

Now that dues-paying members know they can expect union representation without membership, most experts believe that spells the beginning of the end of union influence in America. The long corporate war against unions will finally be over.

Understandably, the attention of most working people, especially union members who’ve benefited most from long-standing collective bargaining protections, is focused on the issue at hand. But there’s an important issue at stake here beyond what happens in the workplace — the right of working people to retain a meaningful voice in civic affairs. The right to a seat at the table when matters of public policy are discussed.

No less a conservative icon than Ronald Reagan spoke to the participatory value of unions in his 1982 address to the British Parliament. Celebrating Solidarity’s role in Polish resistance to communism, President Reagan heralded unions as the principal vehicle for worker input into public decision-making throughout the free world:

“Democracy is not a fragile flower. ... It needs to be cultivated. [What] I propose is quite simple ... to foster the infrastructure of democracy, the system of a free press, unions, political parties, universities, which allows a people to choose their own way ... reconcile their own differences through peaceful means.”

Many nations, some in the face of authoritarian challenges to democracy itself, have listened. Throughout Europe and Scandinavia, governments have adopted “deconstruction legislation,” mandating a seat for labor on corporate boards during policy discussions. That those who produce products and deliver services will generate needed input into policy development and corporate planning makes good sense.

As laboratories for political democracy, these enlightened corporate board rooms feature the kind of Civics-101 learning opportunities that translate positively into substantive input into what they do and broader support for democracy itself.

In 2002, at a worldwide conference of labor officers, the State Department’s Assistant Secretary, Lorne W. Craner, reaffirmed the value of unions to strengthening democracy:

“When trade unions remain steadfast in their commitment to democratic and accountable governance, they represent a key institution to sustaining democratic gains ... [where] there is a free and active trade union movement, the movement toward transparent, more representative governance is more rapid.”

The key here is society’s commitment to the principle defined as “the marketplace of ideas.” That truth is best revealed when all relevant ideas and perspectives must compete for public acceptance.

John Milton’s “Areopagitica” (1644) defended the concept by challenging mandatory licensing of written materials as a dangerous first step toward censorship. John Stuart Mill did likewise in “On Liberty.”

“If all mankind minus one were of one opinion, mankind would be no more justified in silencing that one person than he, if he had the power ... could silence mankind,” Mill wrote.

Justice Oliver Wendell Holmes enshrined it into American jurisprudence in a powerful dissent in Abrams v. United States (1919), “that the best test of truth is the power of the thought to get itself accepted in the competition of the market.” And Brandenburg v. Ohio (1969) moved it to majority status on the Court by limiting First Amendment restrictions to the direct threat of violence rather than only its advocacy.

Now Janus, likely the knockout blow to union membership in America. Already it’s down in the private sector from 35 percent in 1955 to 6.5 percent in 2017. The damage this decision promises to do to public discourse and policy-making in America is little short of draconian.

The likely culprit here? Believe it or not, Citizens United. Specifically, the conservative majority’s determination to expand the scope of that case to strengthen judicial precedent for future decisions consistent with their own juridical and ideological priorities.

Specifically, to link the idea of corporate campaign contributions as political speech, first declared in First National Bank of Boston v. Belotti in 1978, to the more substantive principle that corporate personhood under the First Amendment should have legitimate access to the full protections of the Bill of Rights. To confirm that “We the People” must include corporate and union input in public discourse and policy development.

The Court accomplished its objective in Citizens United by shifting the focus of free speech protection from speakers to the speech itself. Thereby, it broadened the role First Amendment freedoms must play in the pursuit of truth. It enshrined the “marketplace of ideas” into the Constitution, and corporate personhood more substantively into its Bill of Rights. “There is no such thing as too much speech,” Kennedy and Scalia both wrote in their opinions.

“Under our Constitution it is We The People who are sovereign. The people have the final say. The legislators are their spokesmen. The people determine through their votes the destiny of the nation. It is therefore important — vitally important — that all channels of communications be open to them during every election, that no point of view be restrained or barred, and that the people have access to the views of every group in the community.”

All communication channels must be open. No point of view can be barred. Every group in the community must be heard if truth is to be revealed. The marketplace of ideas, now America’s preferred road to truth, is to be constitutionally protected.

Justice Kennedy’s message is clear. Justice Scalia concurs. The First Amendment was written to protect “speech, not speakers ... Its text offers no foothold for excluding any category of speaker.”

Remember when conservatives, in today’s world Republicans all, demanded the Supreme Court abandon its liberal practice of using its majority status on the Court to make law where Congress refused to tread? The Court’s legal duty, they insisted, was “to say what the law is” and nothing more. This, they maintained, was the essence of judicial restraint. Seems conservative justices have decided Citizens United presents them the perfect opportunity to carry out a bit of judicial activism of their own.

The complex foundation conservative justices laid in that case for prospective big donor dominance in elections and public policy development — corporate personhood, campaign contributions as political speech, enshrinement for the marketplace of ideas, First Amendment emphasis on speech over speakers — holds firm until one considers the decision in Janus.

A conservative majority prevailed in striking down the legality of agency fees from non-union members. Should that result silence a meaningful union voice in public discourse, these justices will have perpetrated a deceitful, dastardly degree of hypocrisy. They will have introduced into America’s constitutional parlance a viable, already respected strategy to identify truth, only to violate it in its very first constitutional test. They will have revealed their agenda as principally political, their commitment to ideological traditions as bogus.

William A. O’Brien is executive director of the Virtual Center for Study of the Constitution and Civic Responsibility in Beckley.