Yesterday, the Supreme Court agreed to hear a case involving public-sector unions that could go a long way toward limiting the power of such unions to influence politicians outside of the collective bargaining process:
With a conservative majority back in place, the Supreme Court on Thursday announced that it will once again hear a challenge to the required payment of fees to public-employee unions, an important but controversial tool for the American labor movement.
Some public employees say their free-speech rights are violated by the requirement, and conservative legal activists have at least twice asked the Supreme Court to overturn a decades-old precedent that allows “agency fees.” Approximately 20 states allow them.
It appeared the challenge would be successful the last time the issue was before the court, in January 2016. But Justice Antonin Scalia died a month later, and the court announced that it had split 4 to 4 on the issue.
With a conservative majority back in place, the Supreme Court on Thursday announced that it will once again hear a challenge to the required payment of fees to public-employee unions, an important but controversial tool for the American labor movement.
Some public employees say their free-speech rights are violated by the requirement, and conservative legal activists have at least twice asked the Supreme Court to overturn a decades-old precedent that allows “agency fees.” Approximately 20 states allow them.
It appeared the challenge would be successful the last time the issue was before the court, in January 2016. But Justice Antonin Scalia died a month later, and the court announced that it had split 4 to 4 on the issue.
The lead plaintiff in the case the court accepted is Mark Janus, a child-support specialist at the Illinois Department of Healthcare and Family Services.
Union leaders responded to the court’s decision to take the case by saying the real players behind the effort are those who want to blunt the effect of public-employee unions, the most muscular part of today’s labor movement.
“The Janus case is a blatantly political and well-funded plot to use the highest court in the land to further rig the economic rules against everyday working people,” said Lee Saunders, president of the American Federation of State, County and Municipal Employees.
“The billionaire CEOs and corporate interests behind this case, and the politicians who do their bidding, have teamed up to deliver yet another attack on working people by striking at the freedom to come together in strong unions,” he said.
As noted, this isn’t the first time that the Supreme Court has agreed to hear a case involving this issue. In the summer of 2015, the Court accepted an appeal in Friedrichs v. California Teachers Association, a case in which a California public school teacher was objecting to state laws requiring them to pay dues to the teacher’s union notwithstanding the fact that they had objections to the political positions that the union took outside the collective bargaining process. After it heard the case in January 2016, the Court appeared poised to rule that such fees are unconstitutional pursuant to the First Amendment in that a private citizen cannot be compelled by the state to support political positions they disagree with. When Justice Scalia died roughly a month later, the outcome of that case was thrown into doubt due to the fact that his vote, which likely would have sided with the conservatives and the Plaintiff, and the case ended in a 4-4 tie that left the decision of the Ninth Circuit Court of Appeals in favor of the union standing. Now, with Justice Scalia’s seat filled by Justice Gorsuch, it seems as if conservatives will once again have the majority they need to overturn a precedent that they have been seeking to undo for the past forty years.
The case in question is Abood v. Detroit Board of Education, a 1977 case that ruled that public sector unions could require non-union members to pay fees for services provided to all employees regardless of union members such as contract negotiations and administration. In recent years, though, lawyers representing non-union members of such unions have argued that requiring a non-member to pay what amounted to dues to an organization they aren’t a member violated their First Amendment rights with respect to both an individuals freedom of speech and free association. As I’ve noted before, there are real First Amendment issues involved in cases such as this, not only in the manner in which a person in the Plaintiffs are forced to join a union in order to hold a job, and also due to the issue of the compelled subsidization of political speech via union dues. It’s not a completely clear-cut issue, of course. People in the position of the Plaintiffs in cases such as this do present something of a ‘free rider’ problem to the extent they benefit from the terms negotiated by the union without contributing to the costs of collective bargaining. However, that fact alone is arguably not a sufficient answer to the problem created when union dues are used for purposes not related to collective bargaining. It’s well-settled that people cannot be compelled to speak on political matters as a condition of employment and cannot be compelled to subsidize that speech. Additionally, even under a system where the fees charged to non-members are reduced to cover only “non-political” activities, the fact remains that the fungible nature of money means that the fees they pay ultimately do help subsidize speech that a member may disagree with. One solution to that, obviously, would be strict requirements that unions limit their activities to collective bargaining, but that would First Amendment problems of its own and would be largely unenforceable.
In recent years, though, the Court’s decision in Abood has come under increasing criticism, especially from the political right, which has long viewed public sector unions skeptically. The result has been a series of court challenges that have slowly but surely chipped away at the Abood precedent without explicitly overruling it. The most recent of those cases was a case out of Illinois that challenged a law that required mandatory unionization of home healthcare workers tied unto the state’s Medicaid system. In that case, Harris v. Quinn, the Court invalidated the rule but did not go as far as some thought they might and attack the precedent in Abood itself. When the Court accepted the appeal in Freidrich, many conservatives hoped, and many on the left feared, that the Court would use it to strike the final nail into Abood’s coffin and have the effect of seriously reducing the power and influence of public-sector unions such as the SEIU and AFSCME. As noted, only Justice Scalia’s death seems to have delayed that seeming inevitability. This time around, with the Court back to its full membership of nine Justices and the Court’s conservatives back to the position they were in prior to Scalia’s death, it seems as though it is going to be difficult if not impossible for the Justices to avoid dealing with Abood and the fundamental issues that it presents. Given the majority in Harris, it would seem that the odds are quite good that the Court will rule against the union here, which is no doubt the reason that public employee unions and their allies are seemingly so unnerved just by the fact that the Court has accepted the case for review at all.
As an aside, it’s worth noting that the outcome in this case would have no real impact on private-sector unions. Since the jobs involved in those cases are not government jobs, the First Amendment typically would not apply. There may be some exceptions, of course, in cases where there are laws requiring that people who choose not to be members of private-sector unions must still be pay dues to that union, but that issue is not before the Court in this case and would have to be the subject of future litigation.
Beyond the legal issues, there are also legitimate questions about the entire idea of public employee unions that have been raised in the past, not only by conservatives but also by President Franklin D. Roosevelt himself:
Roosevelt’s reign certainly was the bright dawn of modern unionism. The legal and administrative paths that led to 35% of the nation’s workforce eventually unionizing by a mid-1950s peak were laid by Roosevelt.
But only for the private sector. Roosevelt openly opposed bargaining rights for government unions.
“The process of collective bargaining, as usually understood, cannot be transplanted into the public service,” Roosevelt wrote in 1937 to the National Federation of Federal Employees. Yes, public workers may demand fair treatment, wrote Roosevelt. But, he wrote, “I want to emphasize my conviction that militant tactics have no place” in the public sector. “A strike of public employees manifests nothing less than an intent on their part to prevent or obstruct the operations of Government.”
And if you’re the kind of guy who capitalizes “government,” woe betide such obstructionists.
Roosevelt wasn’t alone. It was orthodoxy among Democrats through the ’50s that unions didn’t belong in government work. Things began changing when, in 1959, Wisconsin’s then-Gov. Gaylord Nelson signed collective bargaining into law for state workers. Other states followed, and gradually, municipal workers and teachers were unionized, too.
These are policy matters beyond the purview of the Court, of course, but they go to the reason why this case, and Harris, are important and why they are different from issues surrounding unions in the private workplace. Public employee unions are a powerful force, and not necessarily a beneficial one for either their members or for taxpayers. To the extent that their power can be restrained, perhaps we will all benefit.
