The Washington Post Sunday
Defying the Supreme Court is back in fashion
The spirit of two Southern governors from more than half a century ago — Arkansas’s Orval Faubus and Alabama’s George Wallace, who defied the Supreme Court regarding race — is infecting the nation today, with different objectives. The Faubus-Wallace spirit of anti-judicial insurrection produced the Biden administration’s extension of the eviction moratorium after the court judged it illegal. And the same spirit produced the Texas abortion law that leaves enforcement to private citizens to shield the state from legal vulnerability for a law that is ostentatiously incompatible with the court’s abortion precedents. Those precedents, although muddled, should be challenged frontally, not evaded by legislative trickery.
Nowhere, however, is the FaubusWallace stance of contempt for the court as flagrant as in Washington state. There, the government and a government employees union have collaborated in a cynically presented, but nonetheless obvious, attempt to nullify two court rulings. On Sept. 27, the court will likely decide whether to act in self-defense by agreeing to hear the challenge against Washington’s two-pronged assault on 2014 and 2018 rulings.
In those, the court held that statemandated public-sector unions are constitutional only if members have a right to opt out of paying dues that subsidize unions’ political speech. In 1977, while upholding government compelling nonunion government employees to pay fees to support public employee unions’ activities, the court uneasily acknowledged the “truism” that such unions exist to influence government policies, so their activities are political — akin to a political party’s.
In 2014, the court affirmed the “bedrock principle” that only rarely can people be compelled to subsidize a third party’s speech that they oppose. In 2018, the court said this principle means that nonmembers can opt out of supporting unions, and nonmembers’ fees cannot be automatically deducted from their wages.
The 2014 case concerned in-home care providers, of whom Washington state today has about 40,000. They, unlike workers in traditional workplaces, are dispersed, isolated and have a high turnover rate of up to 40 percent annually. This makes it difficult to notify them of their constitutional right to opt out of paying fees. On this right, the court says, the constitutionality of public-sector unions depends.
Three years after the court’s 2014 affirmation of opt-out rights, thousands of Washington’s in-home care providers had chosen not to subsidize the governmentdesignated collective bargaining agency, the Service Employees International Union. The SEIU responded not by attempting to persuade dissatisfied fee payers of the union’s benefits, but by trying to prevent the dissatisfied from learning about their right to opt out.
Only Washington’s state government, which reimburses these workers, has their contact information. So, the SEIU supported a ballot initiative to give only the SEIU — which has a financial incentive to keep the workers ignorant of their right to opt out of SEIU — access to this information.
The initiative was advertised as protection of the elderly from identify theft, but no one offered a shred of evidence connecting public-records requests with identity thieves. Such thieves do not usually file public information requests concerning their victims.
The SEIU, in collaboration with the state’s heavily Democratic government (the state’s last Republican governor was elected in 1980), violated the First Amendment twice: by engaging in viewpoint discrimination (only one side of the argument would have access to the audience), and by nullifying the opt-out right on which, the court has said, the constitutionality of public-sector unions depends. This case also concerns political speech in another way: Government employees unions are conveyor belts, moving money extracted from members into Democratic Party coffers.
The SEIU’s audacity is commensurate with its ingenuity in creating for itself a monopoly on information about the identity and location of voters in union elections, thereby locking in these captive workers indefinitely. This speaks volumes about SEIU’s confidence in its ability to convince workers that it is beneficial.
Government employee unions nationwide, and their state legislative collaborators, are watching. If Washington state can effectively nullify constitutional rights the court has twice affirmed, other states will concoct similar measures to skew, to the point of suffocation, public debate. Within hours of the court’s 2018 decision, New York Gov. Andrew M. Cuomo, of fragrant memory, restricted access to information about members of government employee unions.
Somewhere the ghosts of Faubus and Wallace are experiencing admiration mingled with regret. Admiration for the oblique but effective tactic of burdening, to the point of extinction, constitutional rights. Regret that they, both Democrats, lived before defiance of the court became popular within their party.