Did the "Fair Share" Order Contribute to Governor Rauner's Court Criticism?

I haven't been blogging with any consistency as of late (my bad!). I do want to comment on a couple of recent developments that may be related.

Earlier this week, certain media outlets and blogs were positively atwitter about a comment made by Governor Rauner that called into question the, ahem, purity of the judicial system. The Governor stated the following:

Asked by the newspaper if he believes the state's high court is part of a "corrupt" system, Rauner said: "Yes, correct. Yes. Yes. We have a system where we elect our judges, and the trial lawyers who argue cases in front of those judges give campaign cash to those judges. It's a corrupt system."

The Governor isn't suggesting that the justices are somehow individually corrupt or of poor moral character, only that a system where judges accept financial donations in order to fund campaigns to obtain their seats might have a less than ideal effect on the ability of a justice to be as impartial as possible. It's a fair point. And there's a strong argument to be made that justices should be appointed for life to best insulate them from politics.

Anyway, the point of this post isn't to address that particular issue. Rather, I wanted to contextualize the Governor's comments by considering why he may have opted to criticize the court this week. Some believe that his comments were intended to apply pressure to the Illinois Supreme Court as it deliberates over the fate of SB 1 (pension reform). If his comments don't succeed in nudging the court to find the pension reductions constitutional (and I don't believe that his comments would), then he can always fall back on the "see, I told you so" response if the court sides with the unions.

There was, however, another judicial development this week that may have contributed to the Governor's comments. We learned the following on Friday:

A judge has issued an order requiring Illinois government agencies to immediately reinstate mandatory union dues for nonmembers. 

Friday’s order by St. Clair County Associate Judge Christopher Kolker requires the Rauner administration to “remit fair share fees . . . pending the resolution of the case” and to transmit “the correct payroll information” regarding gross pay for affected employees to Illinois’ comptroller. The order is based on an agreement between the administration and unions.

Note the bolded sentence, which indicates that the order was not a surprise to the administration. The decision simply says that, while the legal battle over "fair share" works its way through the court system, the state won't withhold "fair share" dues.

I don't know enough about how this process works to be able to tell if the administration found it necessary to work something out with the unions ahead of a perceived unfavorable ruling on the matter, or if they really did have an incentive to do so. The following statement by the administration suggests it was the latter:

A spokesman for Rauner said the move was part of an agreement the administration struck with unions to give them access to the money in exchange for an expedited timeline to move the case along.

Again, I really don't know. I can see why the administration would want an expedited consideration of the broader "fair share" question. It is surprising that they would concede the restoration of the "fair share" collections after working so diligently to find a "workaround" to withhold the dues at the agency level when the plan to have the Comptroller withhold them fell through. 

But I do wonder if the administration's foreknowledge that the court was going to temporarily reinstate the "fair share dues," pending an ultimate decision on the broader issue, contributed to the Governor's statement about the objectivity of the judiciary. 

A Brief Explanation of the "Empowerment Zone" Debate

To the abject horror of labor unions, Governor Bruce Rauner used his State of the State Address to advocate for the creation of local "empowerment zones." Kentucky is cited as an example of these empowerment, or "right-to-work" zones. 

In Kentucky, several counties have elected to use their home rule powers to become "right-to-work" counties and thereby end mandatory union membership and dues collections within their borders. Workers are permitted to voluntarily join unions in these counties, but they can't be fired or compelled to pay "fair share" dues if they don't join the union. 

Unions believe that federal law only grants states and territories with the authority to pass "right to work" laws. To date, 24 states have opted to pass such laws. But defenders of "right-to-work" contend that the United States Supreme Court has not ruled against local "right-to-work" zones, and that the law is at best favorable, and at worst silent on the matter. Right-to-work supporters are encouraging local counties and municipalities to establish "right-to-work" zones by ordinance in the belief that any eventual litigation will redound in their favor. 

Brace yourself because this fight will be epic.

Unions are concerned that the "right-to-work" concept will reduce union membership and financial muscle. Their concern is justified based upon what has happened in states like Oklahoma, Michigan, and Wisconsin. According to unions, "right-to-work" drives down wages and hurts "working families." But the evidence is mixed. In one sense, average wages are lower in "right-to-work" states. However, proponents of "right-to-work" point out that many "right-to-work" states are in the south, which is less economically developed and generally benefits from a lower cost of living than other regions. Proponents further argue that studies controlling for this regionalism provide evidence that wages are slightly higher in "right-to-work" states. 

But the two central arguments offered in favor of "right-to-work" are constitutional and economic. First, opponents of forced union participation and mandatory dues payments believe that such requirements are a violation of First Amendment free speech rights. The second argument is that "right-to-work" laws generate higher levels of economic activity, business investment, and job creation. Proponents cite statistics as evidence of these trends. 

The theory behind the creation of local "empowerment zones" is that states with pro-union legislatures won't pass "right to work" laws, so the best way to proceed is to bypass the legislatures by passing local ordinances. If businesses begin flocking to the local jurisdictions with investment and jobs, then other local jurisdictions, and eventually the states themselves, will be pressured to enact "right-to-work" laws.

There is a political dimension that goes beyond the economic arguments. Eliminating forced unionization and union dues will weaken what some believe to be the disproportionate amount of power held by public sector unions over Illinois politics. It will also harm the Democratic Party, which has emerged as the primary beneficiary of union money. And that's how a blue state begins to turn purple. That's also why there will be fierce opposition to any efforts to give "right-to-work" a foothold in Illinois. 

These are the general arguments that will be heard over the coming months and, perhaps, years. The outcome is unknown, but in a complete break with some of his avidly pro-union predecessors, Governor Rauner will make sure that the broader debate over "right-to-work" occurs in Illinois. 

Governor Rauner Foreshadows "State of the State" Speech to Suburban Municipal Officials

I attended the Northwest Municipal Conference (NWMC) Legislative Brunch on January 24. It's an annual event where the suburban council of governments rolls out its legislative priorities to federal and state legislators. This year, Governor Rauner was a featured speaker and delivered a PowerPoint presentation about the challenges confronting the state budget and economy. Apparently his decision to appear at the event came together on Friday. I was able to capture the audio of his 30-minute presentation.


I understand that the Governor has been delivering this presentation at various venues in the run-up to his February 4 "State of the State" address. He discussed cost drivers like state employee health insurance, Medicaid, pensions, and state payroll expenditures relative to employment levels. Issues like outmigration, state mandates, shared revenue, workers' compensation costs, state and local taxation, perceived conflicts of interest between unions and legislators, job growth, and flat wages were also included within the presentation. Give it a listen to get the likely contours of the forthcoming "State of the State" speech.