On the last day of the US Supreme Court’s October 2017 session, on June 27, 2018, the Supreme Court dealt what appears likely to be a serious blow to public sector unions. It issued its opinion in Janus v. AFSCME.
Specifically, and by a 5-4 vote, SCOTUS said that government employees who are represented by a union, but who are not members of that union, cannot be required to pay union dues, not even the scaled-down form of union dues designed for this situation 40 years ago in the Abood decision.
The underlying issue is this: if a labor union represents all the employees in a particular bargaining union (a “shop” in the usual phrasing) then all of those employees stand to benefit from the union’s success in negotiating on their behalf. Even non-union members stand to benefit from that success. In the private sector, as in the public, even non-members have long been required to pay into the union that represents them. These dues are called “agency fees” rather than dues when applied to non-members, and the institution is called an “agency shop” rather than a “closed shop.”
Mandatory agency fees have long been justified in the eyes of many on the argument that otherwise a free-rider effect will undermine the union, to the harm of all the working people involved.
One complicating consideration, though, is that unions often engage in activities that go beyond their core function of negotiating for the workers who pay their dues and fees. Unions, for example, support political candidates, and lobby for or against legislation of interest to their leadership in Congress and the state capitals. This is what the Abood decision addressed, in the public union context. The Supreme Court then said that the agency fees charged non-members must be discounted by the amount of a union’s expenses that are expended in political activity, rather than in the core union functions that can be presumed to help all workers in the unit. So long as they are properly discounted, though, agency fees for non-members are constitutional.
The composition of the Supreme Court has completely changed since the 1970s, and the nature of the workforce in the US has changed as well. So it is unsurprising that the issue has come up again.
Justice Alito wrote for the majority in Janus, and explicitly overturned Abood. Charging either the full dues or the lesser agency fees to public sector employees who are not members of unions, for the benefit of the unions, has now been deemed unconstitutional on First Amendment grounds, because the core expenses of a union can’t plausibly be separated from its political activism, so any such agency charge compels non-members “to subsidize private speech on matters of public concern.”
Left Wing View
The breakdown of opinion about this decision has been entirely predictable in its polarization. Almost every commentator who identifies with the right or conservatism praises it, almost every one who identifies with the left, whether the Clintonite or the Sanders left, criticizes it.
By way of example: Elizabeth Bruenig, a leftward opinion columnist at the Washington Post,
tweets that the decision “gives workers the kind of freedom capital wants you to have, which is also known as ‘alienation.’”
Representative Ted Lieu (D – Ca), who represents Los Angeles County, likewise tweeted his view that the decision was “an attack on unions and an attack on working people and the causes we fight for every day.”
Mark Joseph Stern, writing in the center-left web publication Slate, called the opinion a “massive, possibly fatal blow to the political strength and bargaining abilities of unions across the country.” He supports that point with the standard ‘free rider’ argument discussed above.
Salon, which is usually a bit further left than Slate, runs a more intriguing take on the Janus decision, in a brief piece by Aaron Tang. Tang says that states (presumably the ‘blue’ ones) have the power to reduce Janus to a footnote. They could simply reimburse public sector unions for their negotiating expenses from the state treasury. This would solve the free-rider problem while still being “respectful of the objections of a worker like Mark Janus” who would not send money from his paycheck to an organization to which he was opposed.
Matt Ford, writing on this decision in The New Republic, contends that the court is “weaponizing” the first amendment, using it as a sword against the interests of everyone who isn’t part of the ruling elite, and that Janus was not the only example. He cites the ruling this session allowing greater leeway to anti-abortion pregnancy crisis clinic in California, also on first amendment grounds, as another (in his view a likewise lamentable) example of the weaponizing trend.
He says the refashioned First Amendment has “potentially dire consequences for democratic governance.”
Right Wing View
Mark Janus, the plaintiff, stated the general right-wing view with some concision. “We now have 5 million public sector non-union members that can make their own choices as to whether they want to be part of that union. It will not affect the collective bargaining. Unions will have that continued right.”
The City Journal emphasized the partisan nature of public-sector unions. “Since 1990, AFSCME has spent $115 million on federal elections alone. Nearly 99% of the money that it contributed to individual candidates during that time went to Democrats.”
Twitter denizen Dan Proft proclaims, “workers are more free and America is a better place” due to Janus, and to the decision that now bears his name.
Streiff, at the conservative blog RedState, is just as enthusiastic, saying that due to Janus (and the above mentioned first-amendment decision involving pro-life pregnancy crisis clinics as well) this deserves to be known as the week that saved free speech in America. The illustration to Streiff’s column is a classic Norman Rockwell illustration of a working man about to make a speech at what appears to be a town meeting.
The conservatives at the venerable National Review are likewise delighted. Jason Richwine writes there, and makes one argument that goes beyond the usual back and forth. He says that public sector employees’ union “now will have to work harder to convince members that their unions are worth supporting.” He also says that in this necessary effort they are not being well supported by the “labor-oriented think tanks” which always argue that the employees in that sector are underpaid. If they are underpaid, Richwine asks, isn’t it because the unions haven’t been doing a good job as their agents, and why should any employee with a choice want to continue supporting them now — just in order to continue to be underpaid?
It is important to observe, as a final thought, that agency shops still are permissible in the private sector, at least in those states that have not enacted “right to work” laws. In such states, whether all members of a work unit shall have to pay some amount of fees to the union is a matter to be bargained out between the recognized union and the employer.
Public unions are treated different from their private brethren because, after all, the first amendment exists precisely to protect people from censorship and related injustices by the federal government in the first instance and (since the end of the civil war) by the state governments as well. The First doesn’t protect people from censorship or related injustices by private employers and/or from their officially recognized counter-parties at the negotiating table.
The subject of whether the Janus decision will have indirect consequences for private unions is a matter of active speculation.