Constitutional law expert Ian Millhiser...
By Brad Friedman on 1/11/2016, 5:29pm PT  

Today on The BradCast, new polls reveal Bernie Sanders far outpacing Hillary Clinton in head-to-head match-ups against all potential Republican challengers and public sector unions take a beating in the U.S. Supreme Court.

First up today, new pre-election polls from NBC/WSJ and PPP in both Iowa and New Hampshire echo recent national polling suggesting that, contrary to so-called "conventional wisdom", Sanders is more electable against the leading Republican opponents than Clinton is.

Then, constitutional law expert Ian Millhiser joins us to report on today's "brutal" oral arguments before the U.S. Supreme Court in Friedrichs v. California Teachers Association, a case which threatens to gut public sector union funding.

Millhiser, author of the new book, Injustices: The Supreme Court's History of Comforting the Comfortable and Afflicting the Afflicted, was at the Court for today's hearing, and the news is not encouraging. As he explains, the case challenges the federal government's allowance of "agency fees" charged to non-union members in public sector union shops to help defray the costs of union negotiations. That fee makes sense, since non-union workers must receive the same wages and benefits at such shops as their union colleagues. Non-union workers benefit from those negotiations, he says, since "workers in unionized shops on average receive about 12% more pay than workers in non-unionized shops."

"As a general rule," Millhiser wrote after today's oral argument, "the First Amendment does not permit the government to compel someone to say something they disagree with, and the plaintiffs claim that requiring non-union members to subsidize collective bargaining by a union that they may not agree with essentially rises to the level of compelled speech."

He tells me today that striking down the right to charge these agency fees "creates what's called a 'free rider' problem. If I get something, whether I pay for it or not, a lot of people are going to say 'Well, why would I pay for this when I get it for free?'" That, in turn, threatens the viability of such unions entirely.

Millhiser goes on to say: "It was pretty clear today that there were five votes that are ready to strike down these agency fee agreements --- and that's going to be not great for the future of many public sector unions."

We also discuss how an adverse decision for the public unions here may also potentially be used by the Right to go after private unions as well. "What we've seen from conservative movement attorneys over the last seven or eight years is an extraordinary entrepreneurship. They've been really, really clever in coming up with creative news ways to try to convince courts to implement their policy preferences," he says.

Citing both that point and Texas Gov. Greg Abbott's new call for nine, incredibly radical (and regressive) amendments to the U.S. Constitution (which Millhiser describes as the new Republican governor's "plan to repeal the 20th century"), I ask why it is that Democrats and progressives don't show similar "entrepreneurship" in pushing forward their own agenda.

In response, Millhiser defends Dems and progressives by noting a peculiarity about this particular moment in history: "I think conservatives right now increasingly believe that the last 80 years of American history are illegitimate. They believe that our society has started to go off the rails and we have to fundamentally rethink what our government does. Democrats are now in the unfamiliar position of being the nation's conservative party. I don't mean in the sense that they are now to the right of the Republicans. I mean 'conservative' in the sense that Democrats are conservative in the sense that it wants to preserve the gains that we already have."

The result is that Dems are put on the defensive, instead of pushing new, progressive programs forward, as I argue in return, leaving voters less than clear about what it is Democrats hope to do when and if they are elected to office.

Finally, we offer a short goodbye to David Bowie and receive late breaking word from the the U.S. Supreme Court concerning imprisoned former Gov. Don Siegelman (D-AL)'s final appeal for a new trial...Neither of those news items are encouraging either, unfortunately.

Download MP3 or listen to complete show online below...

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