By Lucy Ren

Governor Bruce Rauner declares in a federal lawsuit that the “fair share” union fees are “unconstitutional,” as the Supreme Court has repeated recognized from recent cases that “compelling a state employee to financially support a public sector union seriously impinges upon the free speech and association interests protected by the First Amendment.”

Steven Schwinn, associate professor at the John Marshall Law School, opined that if the case goes eventually to the Supreme Court, Rauner will win. “The Supreme Court will ineffably hold that the fair share fees are violating the First Amendment,” he said. “I disagree with that personally, but I think he’s probably right about that.”

Rauner also issued on Monday an executive order to exempt state workers who do not want to join a union from paying union fees. Anticipating backlashes to his order, Rauner filed the pre-emptive federal lawsuit against state unions to seek for declaration of his decision legal.

Under the Illinois Public Labor Relations Act, it is currently permissible for collective bargaining agreements to require state employees who are not full member of the unions to pay what are called “fair share” union fees. The fees are “designed to cover union expenses that benefit all employees,” said Schwinn, “like collective bargaining.”

The constitutionality of such provisions was first considered by the U.S. Supreme Court in Abood v. Detroit Board of Education in 1977. The case holds that fair share fees are constitutional, “because they avoid the free rider problem in an union shop, and they promote labor peace,” Schwinn explained.

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“It’s very strange that he would file a suit like this,” Schwinn added. “Ordinarily, the way that it would work is that the union would file a suit to challenge the executive order.”

“The Abood case is just barely hanging by a thread,” Schwinn said, “and I think what Governor Rauner is trying to do is just delivering the final blow and bullet.”

Illinois Statute prohibits the fair share fees from being used for political activities, but Rauner believes it is impossible to separate public sector unions from the government. He noted that in the Knox v. Service Employees International Union case decided in 2012, the Supreme Court “recognized that ‘a public-sector union takes many positions during collective bargaining that have powerful political and civic consequences.’”

The unions represent over 45,000 state employees collectively, or about 93 percent of the state employees covered by the Unions’ bargaining agreements.

Rauner’s action came after his attorney Dan Webb and his powerhouse law firm Winston & Strawn reviewed the result of Harris v. Quinn, which was decided by the Supreme Court in 2014. The ruling declares that “except perhaps in the rarest of circumstances, no person in this country may be compelled to subsidize speech by a third party that he or she does not wish to support.”

Pamela Harris, the plaintiff of the Harris v. Quinn case, applauded Rauner’s decision after Rauner announced his executive order. “State employees can still organize, join a union and pay dues,” she wrote in an email to the National Right to Work Legal Defense Foundation. “What has changed is now all state employees have the freedom to choose whether or not to support a union.”

“I think what Governor Rauner is trying to do is just delivering the final blow and bullet.”

– Steven Schwinn, John Marshall Law School

The Teamsters Union, Service Employees International Union, Illinois Nurses Association and AFSCME are among the 28 state unions being sued by Rauner.

According to the governor’s complaint, the fair share fees of the sued unions amount to between 79 percent and 100 percent of the total dues charged to their members.

AFSCME Council 31 calls Rauner’s executive order “a blatantly illegal abuse of power,” according to a statement released by Executive Director Roberta Lynch on Monday.

The statement also asserts, “It is crystal clear by this action that the governor’s supposed concern for balancing the state budget is a paper-thin excuse that can’t hide his real agenda: Silencing working people and their unions who stand up for the middle class.”

“We think his action is very unfair and undemocratic,” INA’s executive director, Alice Johnson, said. “We will be doing educational activities for our members and the public.” She added that there would be “legal challenges” following the lawsuit.

Anthony Riedel, spokesmen of NRTW, wrote in an email that its staff attorneys were “prepared to provide workers with a wide range of legal assistance if needed, ranging from explanations of the executive action and how workers can go about in exercising their rights under it, to the possibility of assisting workers in filing legal actions and briefs.”