BREAKING: The Biggest Legal Attack On Unions In Decades Is Dead

— by Ian Millhiser
When the Supreme Court met last January to hear an aggressive attempt to defund public sector unions, the news looked grim for organized workers. All five of the Court’s conservatives seemed ready to accept the plaintiffs’ legal arguments, a result that would have potentially had catastrophic financial consequences for many unions.

Then Justice Antonin Scalia died, and the anti-union litigants lost the fifth vote they needed to prevail.

On Tuesday, the Supreme Court announced the widely expected consequence of Scalia’s encounter with his own mortality. In a single-sentence order, the Supreme Court announced that the judgment of a lower court rejecting this effort to defund public sector unions “is affirmed by an equally divided court.” Friedrichs v. California Teachers Association is dead. A four-decade-old opinion protecting public sector unions shall live to see another day.

Friedrichs was an attack on what are alternatively called “agency fees” or “fair share fees.” As ThinkProgress previously explained,

Unions are required by law to bargain on behalf of every worker in a unionized shop, even if those workers opt not to join the union. As such, non-members receive the same higher wages (one study found that workers in unionized shops enjoy a wage premium of nearly 12 percent) and benefits enjoyed by their coworkers who belong to the union.

Absent something else, this arrangement would create a free-rider problem, because individual workers have little incentive to join the union if they know they will get all the benefits of unionizing regardless of whether they reimburse the union for its costs. Eventually, unions risk becoming starved for funds and collapsing, causing the workers once represented by a union to lose the benefits of collective bargaining.

To prevent this free-rider problem, union contracts often include a provision requiring non-members to pay agency fees.

The purpose of these fees is to ensure that non-members do not get something for nothing; they require those non-members to pay their share of the costs of obtaining the benefits of being in a union.

Prior to Friedrichs, the Court took two incremental steps in the direction of an eventual decision abolishing agency fees. Friedrichs was widely expected to be that decision. Instead, with the Court split 4-4, Friedrichs will have no effect and the Court’s previous precedents permitting agency fees will remain good law, binding on all lower court judges.

Ultimately, however, Tuesdays’ non-decision in Friedrichs only heightens the stakes in the battle to replace Scalia. If Scalia is replaced by a relatively liberal justice, whether that new justice is Supreme Court nominee Merrick Garland or someone else, then it is exceedingly likely that agency fees will continue to be legal. Should Scalia be replaced by another conservative, however, then Tuesday’s order will likely provide to be only a brief stay of execution for public sector unions.

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This material [the article above] was created by the Center for American Progress Action Fund. It was created for the Progress Report, the daily e-mail publication of the Center for American Progress Action Fund. Click here to subscribe. ‘Like’ CAP Action on Facebook and ‘follow’ us on Twitter

What the GOP’s Supreme Obstruction Means for Women

Senate Republicans are leaving women in limbo on several crucial issues.

— by Martha Burk, OtherWords.org author
Senators, constitutional scholars may tell you, must “advise and consent” on the president’s Supreme Court nominees. But apparently the official GOP policy is to “refuse and obstruct.” They’ve vowed not even to give President Obama’s nominees a vote.

These Republicans claim that leaving the Supreme Court understaffed is no big deal. Well, it’s certainly a big deal for women. Pending cases on abortion, birth control, education, and public employee unions are all sitting before a divided court.

The scariest case is Whole Woman’s Health v. Cole.

It’s a challenge to a Texas law that would close all but about 10 abortion clinics in the state — down from more than 40 — by requiring them to essentially become mini-hospitals. They’d have to employ only doctors with admitting privileges at nearby hospitals, a regulation almost unheard of for safe and common procedures like abortion.

LaDawna Howard / Flickr

Since an appeals court upheld the requirements, a 4-4 deadlock on the Supreme Court would give Texas the green light to enforce them. And it would almost certainly encourage other states to enact similar laws.

On the birth control front, the court will consider Zubik v. Burwell. A successor to the Hobby Lobby case, it’s an argument over whether religiously affiliated institutions have to observe the Affordable Care Act’s requirement that employer-provided health plans cover birth control.

These groups are allowed to avoid the requirement by filling out a form, in which case the government will arrange with their insurer to cover their employees. A few of these groups are claiming that still makes them complicit in sinful conduct.

A 4-4 tie at the Supreme Court would be a mixed bag, since most — but not all — appeals court decisions have upheld the accommodation as not burdensome to religious practice.

Meanwhile, established labor law is on the line in Friedrichs v. California Teachers Association, where the court will consider whether public employees who choose not to join unions can still be required to pay fees for collective bargaining activities. A decision against the unions could mortally wound them.

According to the National Women’s Law Center, women are the majority of the public sector workforce, and the wage gap with their male counterparts is smaller for public union women than non-union women. The lower court favored the unions, so a tie would stave off a major blow to their viability. But that’s still a lot to risk.

Women are now also the majority of college students, and women of color could be greatly affected by a decision in Fisher v. University of Texas. In that case, the court will decide whether the school’s race‑conscious admissions program violates the Constitution’s equal protection principles.

Justice Elena Kagan has recused herself. So if the Senate leaves Scalia’s seat unfilled, the case will be decided by seven justices — which means there can be no tie. Three judges — John Roberts, Clarence Thomas, and Samuel Alito — oppose affirmative action, and a fourth, Anthony Kennedy, has previously expressed doubts about the University of Texas policy.

So what’s the score?

In four cases affecting women the most, two could go in women’s favor with tie votes. A third tie vote would go against women, and a 4-3 conservative majority would hurt them in the final case as well.

However you score it, Senate Republicans are leaving women in limbo until a new justice is chosen and new cases can be brought. That could take years. Women — and the country — deserve better.

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Martha Burk is the director of the Corporate Accountability Project for the National Council of Women’s Organizations (NCWO) and the author of the book Your Voice, Your Vote: The Savvy Woman’s Guide to Power, Politics, and the Change We Need. Follow Martha on Twitter @MarthaBurk.

Demanding Strict Constitutional Abidance Until It’s Inconvenient

Within minutes of the news breaking that Supreme Court Justice Antonin Scalia had died, Republicans said (more specifically Senate Majority Leader Mitch McConnell said) they would refuse to consider ANY Obama nominee to replace him, no matter what. Such a lengthy vacancy on the court would likely preserve the status quo in a number of high-profile cases this term, including those affecting the issues of affirmative action, immigration, abortion access and possibly even the president’s climate regulations. It would also leave in legal limbo countless other cases Scalia and his clerks have worked on this term.

Several critical cases are already pending before the Supreme Court, including:

• The latest attack on abortion rights in Texas
• President Obama’s Clean Power Plan to fight climate change
• The president’s action to allow the “Dreamer” undocumented immigrants to stay in our country
• The right-wing attack on the right of teachers and other workers to form strong unions
• An extremist proposal to roll back voting rights by ending the “one person, one vote” rule
• A Texas case that would limit affirmative action in higher education

It’s time to say resoundingly, “ENOUGH!” Republican obstruction has its limits. We, as Democrats, need to commit to doing everything it takes to retake the U.S. Senate this fall. If the Senate leaves town on recess (which they shouldn’t, the President should hold them in session), President Obama could make an appointment during that recess. And, if the GOP-controlled Senate does successfully manage to block all consideration of President Obama’s nominee, we need to make sure that we elect those who, once seated and sworn in the first week of January, will confirm President Obama’s nominee before our next President is inaugurated.

Along with other matters, such as overturning Citizens United, these cases remind us just how important it is that the next Supreme Court justice share America’s progressive values and rules the right way on these issues. We have an historic opportunity to have a progressive majority on the Supreme Court for the first time in more than 25 years.

Catherine Cortez Masto is running for the Senate seat being vacated by Senator Harry Reid. To assure that our concerns and issues are effectively considered and dealt with by the U.S. Senate, you need to make sure you get out this fall, either during early voting, or on election day, and cast your vote for Catherine. The last person we need claiming to represent Nevada’s interests is a Senator Joe Heck. It’s time to send him packing. We’ve seen what he did in the House and we don’t need even more of that in the Senate.

State Senator Ruben Kihuen’s Statement on Govenor Scott Walker’s Attack on Worker’s Rights

Ruben Kihuen, State Senator and Candidate for U.S. Congress in Nevada’s 4th District, released the following statement regarding Governor Scott Walker’s plan attacking worker’s rights released today in Las Vegas:

“Governor Walker’s assault on worker’s rights as an attempt to jump start his failing Presidential campaign is just a sad attempt to pander to the Tea Party instead of offering real solutions. He may earn the support of people like my opponent Congressman Hardy who think unions are ‘somewhere between a mob and a gang’ while he attacks labor in Las Vegas today but he will only underscore with voters just how wrong his ideas are for America. We need leaders in Congress and the White House who will fight on behalf of working families, not against them.”

State Senator Ruben Kihuen is running as a Democrat in Nevada’s 4th Congressional District. Ruben has a proven record of real results for working families. Born in Mexico, Ruben and his family immigrated to the United States in search of a better life. He worked his way through college and after graduation was inspired to “pay it forward” by working with other students at College of Southern Nevada. In the legislature, Ruben helped craft landmark bi-partisan bills increasing funding for our schools and making college more affordable, and he beat back a reckless Republican agenda attempting to dismantle worker’s rights, restrict women’s health care and repeal LGBTQ protections. Ruben is running for Congress to ensure everyone has a fair shot at the American Dream.

To Learn more about Ruben Kihuen and his campaign for Congress, visit www.rubenforcongress.com or follow Ruben on Facebook or Twitter.

2012-11-26: What I’ve Been Reading

Tax Rates For America’s Wealthiest Fell In 2010 Travis Waldron | News Report: Low capital gains rates have helped the wealthy pay lower and lower tax rates even as their incomes have skyrocketed. And while capital gains income makes up almost half of the incomes of the wealthiest Americans, it accounts for 2.2 percent or less for earners under $200,000. Half of all capital gains income goes to just to the richest 0.1 percent of Americans. The capital gains rate has been steadily eroded since President Ronald Reagan taxed such income equal to wages in the 1980s, and the result has been rising income inequality.

Warren Buffett Renews Call For Minimum Tax On The Ultra-Wealthy Warren Buffett | Op-Ed:  “We need Congress, right now, to enact a minimum tax on high incomes. I would suggest 30 percent of taxable income between $1 million and $10 million, and 35 percent on amounts above that. A plain and simple rule like that will block the efforts of lobbyists, lawyers and contribution-hungry legislators to keep the ultrarich paying rates well below those incurred by people with income just a tiny fraction of ours. Only a minimum tax on very high incomes will prevent the stated tax rate from being eviscerated by these warriors for the wealthy.

“It’s Mostly Punishment…” Oded Na’aman | Op-Ed: There’s one area close to Israel and another along the Israeli-Egyptian border… Israel’s sea border is twelve miles out, and Gaza’s is only three. They’ve only got those three miles, and that’s because of one reason, which is that Israel wants its gas, and there’s an offshore drilling rig something like three and a half miles out facing the Gaza Strip, which should be Palestinian, except that it’s ours… the Navy Special Forces unit provides security for the rig.

Marijuana Decriminalization Law Brings Down Juvenile Arrests in California Susan Ferriss | News Report: Backed by the California District Attorneys Association, the new pot law — passed by state lawmakers — did away with prior requirements that pot offenders be referred to treatment and now allows them to pay a $100 fine akin to that for jaywalking. When Gov. Arnold Schwarzenegger signed the law, he noted that simple pot possession in California was already “an infraction in everything but name.”

Private, Public, Union, or Management: Who Takes All the Money? Paul Buchheit , Op-Ed: Corporate executives and financial employees make up just one-half of 1% of the workforce, but with nearly a trillion dollars of annual income (11.3% of $8.12 trillion), they make more than ALL 15 million unionized workers in the United States, and almost as much as ALL 21 million government workers. Much of their income derives from minimally-taxed capital gains. Meanwhile, the great majority of their private company employees toil as food servers, clerks, medical workers, and domestic help at below-average pay.

Working for Change in Higher Education: The Abysmal State of Adjunct Teacher Pay Jeff Nall, Toward Freedom | News Analysis: Today, non-tenured, part-time instructors (adjuncts) comprise almost 70-percent of college and university faculties. And these teachers are paid very little.  Adjuncts teaching at the community college and state college level in a state like Florida, for instance, make under $2,000 per class. This means that teaching eight classes a year would yield $16,000 annually for the most highly paid community or state college adjunct. Typically adjuncts have no benefits to speak of. This translates into a growing number of college professors who face severe economic hardship.

Car Companies Are Seeing the Light Dan Morrell | Slate:  Automakers are experimenting with lightweight bodies and new engines to meet ambitious fuel efficiency standards.  In July 2011, the Obama administration reached an agreement with 13 major automakers—Ford included—along with the UAW and the EPA to dramatically increase vehicle fuel efficiency standards on all cars and light trucks sold in the United States: By 2025, every carmaker’s fleet would have to average 54.5 miles per gallon. It represented a near-doubling of the current standard of 29 miles per gallon—roughly the highway fuel efficiency of a Ford Taurus.