Forced Public-Union Dues on Trial
The Supreme Court will decide the constitutionality of forcing non-union public employees to pay union fees.
The U.S. Supreme Court heard oral arguments in Janus v. AFSCME on Monday to decide the constitutionality of forcing non-union public employees to pay union fees. The outcome of this case could have far-reaching impact on the power of public-sector unions, and the hope is that it will settle a legal battle that has been going on since before any sitting justice joined the High Court.
In 1977, the Burger Court ruled in Abood v. Detroit Board of Education that governments could force non-union public-sector employees to pay fees to unions in lieu of dues. This decision was a clear intrusion on employees’ First Amendment rights because it basically compelled them to support public-sector union political positions with which they did not agree. Numerous lawsuits have been attempting to walk back Abood ever since.
Supreme Court cases in 2012 and 2014 chiseled away at Abood’s standing and prevented public-sector unions from expanding their reach. But it was the 2016 Friedrichs v. California Teachers Association case that came closest to overturning Abood outright. Unfortunately, the death of Justice Antonin Scalia left the case with a 4-4 split, sending it back to the Ninth Circuit, which promptly reaffirmed its decision in favor of the unions. Shocking, we know.
Janus concerns Mark Janus and other Illinois state workers who have been forced to pay “agency fees” to the American Federation of State, County and Municipal Employees even though they refused to join the union.
Monday’s oral arguments indicated a concern among the Court’s left wing as to the impact on public-sector unions should agency fees be ruled unconstitutional. Solicitor General Noel Francisco, arguing for Janus, pointed out that collective bargaining agreements expire after a few years, and current agreements are being “negotiated under the shadow of Harris and Knox,” the 2012 and 2014 Supreme Court cases that reduced the power of Abood. In other words, the handwriting has been on the wall for a while, so public-sector unions should be prepared for this eventuality.
Justice Sonia Sotomayor asked whether it would be fair for unions to collectively bargain on behalf of free riders who are neither union members nor pay any fees to the union. Bill Messenger from National Right to Work Foundation, also representing Janus, responded that the unions are required by law to represent members and non-members alike. Furthermore, 27 states already do not permit mandatory agency fees, and public unions still exist in those states.
The public-sector unions and their supporters sidestep some serious issues when advocating for their so-called agency fees. First, they worry about free riders. What about forced riders? People who chose for one reason or another not to join the union are compelled to pay fees to support that union’s activities regardless of their approval of the union’s stand on political issues. And public-sector unions are inherently political. Unlike a private-sector union, which sits across the bargaining table from a private company, in a public-sector union negotiation, the government sits on both sides of the table. There is fundamentally no way to keep politics out of the equation. And the argument that agency fees only go toward administrative expenses and not political lobbying does not hold. As George Will points out, “Money is fungible: Money extracted from reluctant nonmembers can fund activities that otherwise would have been paid for with money that now can be devoted to other political causes.”
Union supporters would also have us believe that ruling in favor of Janus would be detrimental to public-sector pensions. As is typical of government-held money, state retirement funds for public employees are paid out at will, not from contributions collected over time and placed in funds. Remember how Social Security was meant to be a big pool of money collected over time and paid out to retirees when they reached the right age, but it was plucked dry by politicians to pay for other things? Well, this is the same thing, except on a state level. In states with high numbers of public-sector employees (yes, mostly blue states), the unfunded liabilities will lead to massive budget shortfalls. Illinois is but one example.
This is a sad situation for people who have worked all their lives, only to reach retirement and find out they have been shafted by their employers. And it only further proves that the current public-sector union system is in need of reform. If the unions can’t even guarantee that their workers will get their pensions, then they have failed at one of their basic duties — protecting their workers.
The Left is clearly concerned about losing this case and seeing Abood overturned. Public-sector unions are a major source of support for Democrats. Their campaign donations and their lobbying have propped up many otherwise politically vulnerable Democrats. It can be said that Dems and public-sector unions are the Toxic Twins of the bureaucracy, each protecting the other while working toward the endless growth of government power on the state and federal level.
Janus won’t be decided until June, but there is a pretty good indication how the case will go. Unless one of the eight justices who heard Friedrichs in 2016 gets struck by lightning, they are not likely to change their position. Justice Neil Gorsuch was uncharacteristically silent during the oral arguments, but if his track record is any indication of how he will vote, then the agency fee provision may be gone by summer. Let’s hope so.