Unions have been on the decline since 1954—which was their high point in membership as a percentage of the workforce. Today, unions represent a paltry 6.4 % of private sector employees. Their real strength in membership and funding is the public sector—teachers, police officers, and other municipal and state employees, where the rate of union membership is slightly over 34%. But the funding success of public sector unions may soon come to an end. Employees who chose not to join a public sector union are challenging the constitutionality of being compelled to pay the equivalent of dues to the union when collective bargaining positions of the union are antithetical to their own political and ideological beliefs.
The Supreme Court has agreed to hear just such a case—Janus v. AFSCME—brought against the background of last term’s 4-4 tie over a California teacher’s challenge which raised the identical issue. That deadlock was brought about by the untimely death of Justice Scalia. With President Donald Trump’s appointment of conservative Justice Neil Gorsuch, it was only a matter of time until a similar case would once again present the issue.
Mark Janus, who works for the Illinois Department of Healthcare and Family Services as a child support specialist, chose not to join the union that represents employees of the State of Illinois, namely, the American Federation of State, County and Municipal Employees (AFSCME). Nevertheless he must pay part of his pay check each pay period into AFSCME’s coffers. This is usually called an “agency fee” or “fair share” amount. His legal duty to pay money to the union results from state labor laws which compel Janus to make the payment of such a fee as a condition of continuing employment.
Janus argues that these involuntary payments violate his First Amendment free speech rights by forcing him to financially underwrite negotiating positions taken by AFSCME that are necessarily political in nature and are contrary to his interests and political views. Public employee unions, including AFSCME, counter that they are relying on the 1977 Supreme Court decision Abood v. Detroit Board of Education. In that case, the Supreme Court ruled that unions in the public sector were allowed to charge non-members agency fees to cover the costs of negotiating (collective bargaining) but not for political expenditures such as electioneering for candidates and lobbying activities.
The distinctions made in Abood between political and non-political union expenditures seemed plausible to the majority at the time. However, even then, Justice Powell warned that these distinctions raised serious constitutional questions. Who is right here, the Abood court or Janus?
Public employees who voluntarily join a union can expect to pay membership dues. No one disputes that. However, the law allows employees to decline becoming actual members in the union, and a percentage of employees do indeed decline. However, under “fair share laws,” these non-members have to pay a portion of their pay to support the union, because, it is argued, they reap the fruits of union representation in collective bargaining negotiations (wages and benefits) and gain from the union enforcing the contract during its duration. Therefore, the public sector union itself, like AFSCME, is allowed to collect a fair share or agency fee from non-members.
In order to arrive at this fair share amount the union reviews its expenditures for a given year and classifies them according to the Abood distinctions. It counts collective bargaining expenses as non-political and, therefore, able to be charged proportionately to non-members (chargeable expenses). Other expenditures, again following Abood, that are for lobbying or electioneering cannot be charged to non-members (non-chargeable expenses). AFSCME concluded that Janus and other state employees who were non-members had to “contribute” from their pay checks an amount equal to a whopping 78% of full union dues! In other words, it claimed that most of its expenditures it makes had no political aims or content.
Janus and other recent litigants believe that the Abood distinctions are fundamentally wrong and should be scrapped. They say that whenever a public sector union negotiates with a state government, it is, of necessity, engaged in political activity. Collective bargaining and contract enforcement are at root political. Why?
Virtually all the demands of the union directly impact the state government’s fiscal status and condition. Inevitably those union demands, if agreed to by the state government, require it to either raise taxes on its citizens or require it to reallocate spending priorities in order to meet the new demands. These decisions are clearly political. Put another way, Janus is saying that the Abood Court failed to see that public sector unions advance their political goals as much through collective bargaining as through more direct political lobbying and the supporting of political candidates.
Janus offers his own state as a stunning example of a state where contracts made with unions now threaten the financial stability of the state. Illinois owes creditors billions of dollars and carries billions more in unfunded pension obligations. Janus believes that union bargaining positions have made the state’s budget and pension crisis worse. Even more distressing to him is that he is financially supporting those destructive positions and policies with his fair share payments.
Since Janus is funding those political goals against his will, his freedom of speech is infringed because he is compelled as a matter of law to support the positions taken by the union with which he disagrees. This problem of compelled speech is as old as the classic 1943 case of West Virginia State Board of Education v. Barnette. There the court proclaimed that the First Amendment speech protections prevent citizens from being compelled by governmental decree, in this case, the State of Illinois, to support a position against their convictions. That is precisely what AFSCME has been given the power to do by the state’s labor laws.
Agency shop and fair share regimes of public sector unions should be ended as unconstitutional, and that portion of Abood that wrongly held that collective bargaining and contract enforcement were non-political should be overruled.
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