On Monday, the U.S. Supreme Court ruled that no government employee can be fired for refusing to financially support a union. The decision frees workers who do not wish to join a union from being forced to pay the union nevertheless. This will likely spark a massive exodus from the ranks of public sector unions, weakening the Democratic Party.
“States and public-sector unions may no longer exact agency fees from nonconsenting employees,” Justice Samuel Alito wrote in the 5-4 decision. Chief Justice John Roberts and Justices Anthony Kennedy, Clarence Thomas, and Neil Gorsuch joined in his opinion. Justice Sonia Sotomayor filed a dissent, and Justice Elena Kagan filed a separate dissent, in which Justices Ruth Bader Ginsburg, Stephen Bryer, and Sotomayor joined.
“Under Illinois law, if a public-sector collective-bargaining agreement includes an agency-fee provision and the union certifies to the employer the amount of the fee, that amount is automatically deducted from the non-member’s wages. No form of employee consent is required,” Alito explained. “This procedure violates the First Amendment and can not continue.”
“Forcing free and independent individuals to endorse ideas they find objectionable is always demeaning,” Alito wrote. “Compelling a person to subsidize the speech of other private speakers raises similar First Amendment concerns.”
President Donald Trump celebrated the victory.
Supreme Court rules in favor of non-union workers who are now, as an example, able to support a candidate of his or her choice without having those who control the Union deciding for them. Big loss for the coffers of the Democrats!
— Donald J. Trump (@realDonaldTrump) June 27, 2018
Janus settled the issue in the 2016 case Friedrichs v. California Teachers Association, in which the Court deadlocked at 4-4.
The case involved Mark Janus, an Illinois child support staffer who refused to join the local union, AFSCME Council 31. Despite refusing to join the union, he is still required to pay “agency fees” — a large portion of union dues — on the theory that since he benefits from the union’s bargaining, he must be forced to support the organization.
Janus objected, saying he did not want to support the union financially. He was “forced to support a government union as a condition of employment,” and argued that “this is a gross violation of my First Amendment Rights to free speech and freedom of association.”
The American Federation of State, County & Municipal Employees (AFSCME) argued that if the Supreme Court honored Janus’ objection, it would “take away the freedom of working people to join together in strong unions to speak up for themselves and their communities.” This case “aims to erode the freedom to form unions to improve our lives and the communities we serve.”
The AFSCME argued that “real freedom” is not about being able to refuse to support an organization you disagree with, but rather about “making a decent living form our hard work.” The union claimed that “the corporate special interests behind this case do not believe that working people should have the freedom to negotiate a fair return on their work.”
Indeed, the case traced back further than Mark Janus. The challenge to agency fees began with Gov. Bruce Rauner (R-Ill.), and Janus later took it up. The Liberty Justice Center in Chicago and the National Right to Work Legal Defense Foundation represented him in the case.
This does not mean that Janus — and the millions of employees who might face termination if they refuse to financially support unions — should be forced to contribute to causes they disagree with, however.
As Thomas Jefferson wrote in the Virginia Statute for Religious Freedom, “To compel a man to furnish contributions of money for the propagation of opinions which he disbelieves and abhors, is sinful and tyrannical.”
“There is a large pent-up demand among public sector workers to get out of the union and to stop financially supporting it,” Patrick Wright, vice president for legal affairs at the Mackinac Center for Public Policy in Michigan, told PJ Media. He presented the story of Michigan’s public workers, who left unions after right-to-work legislation was implemented in 2013, as an example.
“About 20 percent of the Michigan Education Association members left the union,” Wright noted. In 2013, the year the right-to-work law went into effect, MEA had 113,147 members. By 2016, that number had fallen by 19.9 percent, to 90,609. The union dues money declined 22 percent during the same period, Wright recalled.
This would hurt, but not cripple, the public sector unions, the Mackinac Center lawyer argued. He cited a large internal AFSCME poll, which found that, without agency fees, 35 percent of union members would remain, 15 percent would leave, and 50 percent said they were undecided. He argued that evidence from Michigan suggests a 20 percent figure, which would not destroy unions in the way that AFSCME warned.
Nearly half the states in the U.S. (22) permit unions to demand agency fees, and the majority of state and local government jobs require these fees in 11 states, covering 4.5 million government workers, Wright explained.
Earlier this year, David Dewhirst, chief litigation counsel for the Freedom Foundation, laid out the key issue in this case. “Telling somebody to pay the union is compelled speech, compelled political speech, which is absolutely prohibited by the First Amendment.”
The Supreme Court attempted to get around this obstacle in the 1977 case Abood v. Detroit Board of Education. This case allowed public sector unions to impose agency fees, in order to cover the cost of collective bargaining and prevent workers from becoming “free riders.” The Court ruled that agency fees could be separated from the political aspects of a union, but both Dewhirst and Wright disagreed. The Supreme Court struck Abood down in Janus.
“The problem is, even though that fee is not supposed to allow the union to spend political dollars in their names, everything a public sector union does is political, because they bargain with the government over employee wages and working conditions,” Dewhirst told PJ Media.
“At their core, public sector unions are strange, because you don’t have an employee representative bargaining against an employer, a business owner. You’re bargaining against the people,” the Freedom Foundation counsel argued. “You’ve created a negative dimension to this relationship, where public servants are trying to stick it to the public.”
Dewhirst argued that Abood had “spawned all types of corrupt problems.” Washington Governor Jay Inslee, for example, benefitted from more than $700,000 in union dollars at the very time Inslee himself was negotiating with these unions in 2016.
“It creates this corrupt cycle of political dependency, where government continues to grow because more pay leads to more public employees, which produces more money in union coffers, and at the same time politicians who encourage that type of government growth are thrust into office again and again because of the power wielded by these unions,” Dewhirst told PJ Media.
Furthermore, the supposedly non-politial agency fees at AFSCME went to promoting Democrat Hillary Clinton at the union’s 2016 convention. As the Competitive Enterprise Institute (CEI) noted, AFSCME Council 31 (the union to which Janus is required to pay agency fees) spent $268,855 for “Convention expense,” taking this from the funds gathered by “non-political” agency fees.
The AFSCME convention in July 2016 involved political advocacy, featuring a lengthy “AFSCME FOR HILLARY” program, culminating with a speech by the candidate herself. One speaker led attendees in a chant of “I’m With Her!” On the very first day of the convention, the union’s president led attendees in booing Donald Trump. On the third day, the convention adjourned early, so members could participate in a “TRUMP HOTEL DIRECT ACTION”protest march. The convention even chartered buses for the protest.
In her dissent, Justice Elena Kagan defended Abood, arguing that “a government entity could require public employees to pay a fair share of the cost that a union incurs when negotiating on their behalf over terms of employment. But no part of that fair-share payment could go to any of the union’s political or ideological activities.” It is this very statement the Court disagreed with — even the bargaining of public sector unions is inherently political (as Franklin Delano Roosevelt warned), but AFSCME has also used “non-political” funds to support Hillary Clinton.
Kagan made a consequentialist argument against the First Amendment claims of the Court’s conservatives. “Public employee unions will lose a secure source of financial support,” she argued. “Across the country, the relationships of public employees and employers will alter in both predictable and wholly unexpected ways.”
Sure. That doesn’t invalidate the idea that Mark Janus should not be compelled to donate to a political cause in order to keep his job. Ironically, Kagan described Abood as “workable,” despite the political use of “non-political” agency fees.