Public sector unions, the real strength of American unionism today, have been dealt a serious blow by the U.S. Supreme Court. In a strongly worded 5-4 decision written by Justice Samuel Alito, the court ruled in favor of Mark Janus, who works for the Illinois Department of Healthcare and Family Services as a child-support specialist. Janus chose not to join the union that represents employees of the State of Illinois: the American Federation of State, County, and Municipal Employees (AFSCME). Nevertheless, Janus was compelled to “donate” part of his paycheck for each pay period to the coffers of AFSCME. The arrangement, a matter of state law in Illinois, required the payment as a condition of continuing employment.
Well, that compulsory fee, often called an “agency fee” or “fair share” payment, is now unconstitutional.
The high court found that Janus’s involuntary payments ran afoul of his First Amendment free speech rights by forcing him to financially support negotiating positions taken by AFSCME that were necessarily political and were often contrary to his own political views. Justice Alito cited West Virginia Bd. of Ed. v. Barnette (1943), where Justice Jackson had said: “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics … religion or other matters of opinion or force citizens to confess by word or act their faith therein.”
AFSCME argued, relying on Abood v. Detroit Board of Education (1977), that it is only using the “agency” payments to pay for “collective bargaining costs,” which that earlier decision allowed it to “charge” to nonmembers. Further, AFSCME maintained that it was not charging nonmembers for political expenditures. It claimed that Janus had been given an explanation of this breakdown of expenses as required by law. The court noted two key problems with this arrangement: First, the union itself calculates which of its expenses are chargeable (non-political) and which are nonchargeable (political) expenses. Secondly, what is included in the two categories is exceedingly vague. In this case, for example, Janus was told he had to pay for “lobbying,” “social and recreational activities,” “advertising,” “membership meetings and conventions,” “litigation,” and “services.” In total he was “billed” for just over 78% of full union dues!
Justice Alito sums it up: “Abood’s line between chargeable and nonchargeable union expenditures has proved to be impossible to draw with precision.” Moreover, even though a nonmember could challenge the union’s computation of the agency fee, the Court called such a challenge a “daunting and expensive task.”
Janus’s central point, however, is that the distinction set forth in Abood between political and non-political expenditures does not hold up even if the union is giving an honest accounting of its expenditures; that is, not “cooking its books.” Why? Virtually every collective bargaining demand made by a public sector union has the potential to impact the state government’s fiscal status and condition. Union bargaining demands for higher wages and benefits, if agreed to by the state government, require it to either raise taxes on its citizens or require it to spend less on other governmental services. In addition, Justice Alito points out that briefs submitted by public sector unions and other supporters of AFSCME show that public sector unions, during and outside of negotiations, express views on a wide variety of issues, including child welfare, minority rights, healthcare, gender identity, merit pay, and a host of other controversial issues. In other words, collective bargaining by unions has a political/policy impact, one with which Mr. Janus, and employees like him, disagree and yet are required to subsidize.
Therefore, the structure of the Abood decision is faulty: “Abood was wrongly decided and is now overruled.”
Mr. Janus’s freedom to refrain from supporting views contrary to his own is infringed, says the Supreme Court. However, under free speech jurisprudence, the court must still inquire whether the State of Illinois has “interests” that are “compelling” enough to override Mr. Janus’s freedom of speech rights. Since speech is such a highly valued constitutional right, the court applied a very high standard which Illinois must meet. The court, drawing from an earlier but recent case (Knox v. Service Employees, 2012), says that it looks at any reasons Illinois provides with ‘exacting scrutiny.” Illinois provides two “interests” which it claims meet this standard. It says that agency fees from nonmembers must be allowed because (1) they promote “labor peace” and (2) they prevent nonmembers from being “free riders;” that is, benefiting from union-bargained gains without paying anything for them.
The court refuses to recognize either of these as “compelling.” Labor peace has been maintained in states and in federal government departments like the Post Office, where agency fees are prohibited. As for the “free-rider” argument, the court seems to agree with the petitioner, Janus, that “he is not a free rider on a bus headed for a destination that he wishes to reach but is more like a person shanghaied for an unwanted voyage.”
How will the decision change things for public sector unions—teachers, police officers, and other municipal and state employees—where the rate of union membership is slightly over 34% compared with 6.5% in the private sector? First, it will greatly reduce the number of public sector employees who will continue to pay the “agency/fair share” fees. In states that have passed “paycheck protection” acts which prohibited the compulsory collection of such fees by unions, the number of employees opting to pay their fees has declined markedly.
As a result of this loss of revenue, public sector unions will try to make it harder for current employees to halt the automatic pay deductions and trap new employees into perpetual pay reductions. Steven Greenhut, writing for the California Policy Center, cites new language, which unions are already inserting into their membership applications, that makes union membership “irrevocable” unless the employee gives written notice to the union within a limited “window.” No doubt unions will fight with their legal muscle efforts by individual employees to stop paying agency/fair-share fees. Advocacy groups that favor employee freedom will be busy combating these new tactics for confused public sector employees. However, the Alito opinion seems to anticipate this tact when it says that “neither an agency fee nor any other payment to the union may be deducted from a nonmember’s wages, nor may any other attempt be made to collect such a payment unless the employee affirmatively consents to pay.”
The long-run impact of the decision will be that when the funds available to public sector unions take a substantial hit, the political support for candidates by public sector unions will decrease. Since that support is overwhelmingly for Democratic Party political candidates, those candidates will be hurt. Scott McKay reports that spending by public sector unions such as the National Education Association, the American Federation of Teachers, Service Employees International Union, and AFSCME, went 90% to Democrat candidates. In fact, if one looked at AFSCME candidate support in 2016, that union did not support a single Republican candidate “anywhere in the country.”
All of this is recognized by the spokespersons for public sector unions, further supporting the conclusion of the court that these unions, for the most part, had become little more than partisan political action organizations, favoring only one side of the political spectrum.
— Dr. John A. Sparks is the retired dean of Arts & Letters at Grove City College and a fellow for The Center for Vision & Values. He is a graduate of the University of Michigan Law School and a member of the State Bar of Pennsylvania. He is a frequent contributor of articles based upon U.S. Supreme Court developments.