The Supreme Court dealt troubled public-sector unions another setback today, ruling that they can no longer collect fees from workers who don’t want to belong to a union. In a 5-4 ruling in Janus v. AFSCME, the court reasoned that even bargaining on behalf of workers by public-sector unions is inherently political, so compelling nonmembers to pay so-called “agency fees” impinges on their free speech. The result is likely to hasten what has been over the last decade an ongoing decline in union membership among government workers.
Illinois social worker Mark Janus had sued to overturn a state law that required him to pay a local unit of AFSCME a fee, even though he wasn’t a member. The law was based on the notion that nonmembers receive some benefits from the work that unions do in representing employees, such as negotiating employee benefits, thus warranting paying a mandated fee for that service. Janus objected to the fees, which in Illinois amounted to 78 percent of full union dues, because he didn’t want to support a union whose political philosophy and local organizing efforts he rejected. He blamed the union for the ongoing financial mess in Illinois state government. “For years [AFSCME] supported candidates who put Illinois into its current budget and pension mess,” Janus observed in 2016.
The Court agreed with Janus’s position. “[U]nion speech covers critically important and public matters such as the State’s budget crisis, taxes, and collective bargaining issues related to education, child welfare, healthcare, and minority rights,” Justice Samuel Alito observed in the majority decision. He argued that the 1977 Abood v. Detroit Board of Education opinion, which had originally sanctioned compulsory fees for government workers, was wrongly decided, in part because it was based on previous decisions that applied to private-sector unions. “Abood did not appreciate the very different First Amendment question that arises when a State requires its employees to pay agency fees,” he wrote.
Over the years, public unions’ aggressive application of agency fees generated growing discontent and led to a series of lawsuits that set the stage for the Janus ruling. When a California local of the Service Employees International Union assessed a special fee on state employees in order to build a campaign war chest, several nonmembers sued, charging that their rights had been violated. In a 7-2 decision in Knox v. SEIU, the court agreed. In the majority opinion, Alito noted that the case raised larger issues that encouraged the Janus suit. “Because a public-sector union takes many positions during collective bargaining that have powerful political and civic consequences, the compulsory fees constitute a form of compelled speech,” Alito wrote for the Knox majority. “Our cases to date have tolerated this ‘impingement,’ and we do not revisit today whether the Court’s former cases have given adequate recognition to the critical First Amendment rights at stake.”
Preceding Janus, a handful of California teachers, led by Rebecca Friedrichs, had sued the California Teachers Association over agency fees. In their argument, the plaintiffs noted that the union justified its $650 annual fee to nonmembers by claiming that a host of seemingly political activities were part of its mission to represent workers, including money spent on a conference on gay-lesbian-bisexual-transgender issues, and the cost of the union’s heavily political magazine. Friedrichs v. CTA ended in a 4-4 deadlock after the death of Justice Antonin Scalia.
With the appointment of Justice Neil Gorsuch, unions feared the outcome of the Janus case. After all, many union members have stated that they would give up their memberships if the court ruled that compulsory fees were illegal. An officer of the Communications Workers of America, which represents government employees in New Jersey, told an AFL-CIO convention last fall that only 54 percent of its 60,000 members said that they would remain in the union if they could opt out of paying fees. The California Teachers Association, meanwhile, crafted a 2019 budget that anticipated that as many as 23,000 members would leave if the court overturned the Illinois law. The union will also suffer from the loss of revenues from 28,000 nonmembers who’ve been paying agency fees, and will presumably stop doing so now that they’re no longer compelled. The union, according to a published report, estimated it could suffer a loss of some $20 million annually as a result.
Even before the ruling, government unions were reeling. Their membership has declined from a peak of 7.9 million in 2009 to 7.2 million today—a drop of nearly 9 percent. The portion of government workers in unions, which peaked in the mid-1990s at 38.7 percent, is now down to 34.4 percent, according to unionstats.com. Some of the decline is due to a significant reduction in the number of government workers after the 2008 financial crisis; even today, nine years into a recovery, the total number of government workers remains 10 percent lower than before the recession—a loss of 233,000 positions. But unions have suffered an even bigger falloff, because when government employment began trending back upward in 2014, union membership stayed flat. Many of the gains in government jobs since then have been in nonunion positions.
Unions have suffered big losses in Wisconsin, which banned compulsory unionization in the public sector in 2011. Some 140,000 union positions have dried up as workers chose not to retain their memberships. But other states that continued to compel workers to join a union or pay agency fees have also seen major losses, including New York, where union membership has fallen by 150,000, Illinois (down 88,000), Pennsylvania (down 54,000), and New Jersey (down 50,000). Those declines are reflected in union numbers, too. The National Education Association, the largest teachers’ union, has lost nearly 250,000 members, or about 8 percent of its membership, since 2009. AFSCME’s national membership has shrunk by 200,000, or 13 percent.
Some of these declines may be attributable to growing doubt about the role of public unions. A recent poll by Harvard’s Program on Education Policy and Governance found that only 37 percent of those surveyed say that teachers’ unions are a positive impact on schools, while 37 percent say that their influence is negative. In the poll, just 37 percent of the public voiced support for agency fees, while 44 percent opposed them. Even teachers in the poll were more likely to oppose the fees.
The court ruling will have little impact in the 28 states that have right-to-work legislation, which already allows a worker to decline to join a union or pay a fee. But the remaining states, where union membership or agency fees are compulsory, include places where, consequently, rates of unionization among government workers are high. In New York, Connecticut, and Rhode Island, for instance, more than 60 percent of public workers are in unions. By contrast, in right-to-work states like North Carolina and South Carolina, fewer than 10 percent of government workers are unionized.
Politicians in some forced-unionization states are already lining up to cushion the blow from Janus. In April, for instance, New York governor Andrew Cuomo signed legislation guaranteeing that public unions get access to the names and addresses of new employees, so that labor leaders can try to persuade them to enlist in the union. The legislation also lets unions cut deals with government employers that provide benefits that only union members can enjoy. In May, New Jersey governor Phil Murphy signed a similar law, and California’s legislature is also contemplating one.
Facing a potential hemorrhaging of members, unions may have to shift strategy. In states where fees were compulsory, public unions paid decreasing attention to representing workers and poured more and more of their effort—and money—into fighting broader political campaigns. Unions like the American Federation of Teachers and AFSCME, for instance, are among the biggest political contributors over the last 30 years. Since 1990, AFSCME has spent $115 million in campaign contributions on federal elections alone. Nearly 99 percent of the money that it contributed to individual candidates during that time went to Democrats.
Labor’s increasing political activism hasn’t always sat well with members. “Plenty of represented workers aren’t enthusiastic about their unions,” a writer at Labor Notes observed several years ago, as a predecessor to the Janus case worked its way through the courts. The problem, the pro-labor publication noted, was that the unions increasingly “focus on advocating for causes far removed from members’ day-to-day work.”
Now unions are looking to turn their attention back to worker representation. While the Janus case was still being tried, AFSCME committed to meeting with most of its 1.3 million members, trying to persuade them of the benefits of staying in the union, and even encouraging them to sign recommitment cards. Such back-to-basics organizing efforts will now have to be a permanent part of government-union work.
But the cost of dues in the public sector has gotten steep and a substantial portion of workers may wonder what they get for the money. In a 2011 Harris Interactive Poll, for instance, 47 percent of respondents from union households said that they didn’t believe that union dues were worth the cost. No wonder unions are scrambling after today’s Janus decision.
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