On Monday, the Supreme Court of the United States heard arguments in a case that could permanently handicap the power of public unions in America, Janus v. American Federation of State, County, and Municipal Employees, Council 31" (known as Janus v. AFSCME). Like so many blockbuster Supreme Court cases, the case’s outcome will have important legal and political repercussions. Although we won’t find out the court’s decision until early summer, the cynical prediction that the court will vote five-to-four — with a decision that benefits Republicans and harms Democrats — is likely true.
At issue in the case are the laws in 22 states which allow public unions to require that public employees who are not union members to pay so-called “agency” or “fair share” fees. The idea is that even public employees who are not members benefit from the collective bargaining of that union, and therefore should pay for the union’s representation. Without the ability of unions to charge these agency fees, unions would be spending a great deal of time and money negotiating contracts that benefit both members of unions and non-union members. This creates the problem of non-union “free-riders” — workers who benefit from the union’s collective bargaining efforts but don't pay for them.
The Supreme Court blessed this arrangement in a 1977 case called Abood v. Detroit Board of Education, in which the court found that public employees could be forced to pay for expenses associated with collective bargaining and other related activities, but not for political activities. Despite the court’s ruling in Abood, Mark Janus, a public employee who is not a member of a public union, claims that the state law allowing unions to require him to pay agency fees violates his First Amendment rights. Janus specifically argues that by forcing him to pay for union activity with which he disagrees, he is being compelled to speak for and associate with the union.
Janus argues that by forcing him to pay for union activity with which he disagrees, he is being compelled to associate with the union.
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At first blush, Janus’ argument seems to make some sense. Even if he does benefit from the public union’s collective bargaining, there’s something problematic about forcing him to spend money to support activities he doesn’t endorse.
The problem is that Janus isn’t actually forced to pay for these activities. Instead, what Janus and other public employees are forced to do is to sign a letter, usually once per year, asking to opt-out of the union’s political spending and then wait for the refund of the percentage of agency fees that were spent on political activity.
The state laws that currently allow public unions to compel non-members to pay agency fees are far from perfect. For example, it can be difficult to separate union political spending from spending on collective bargaining. The idea that we can treat those two types of spending as distinct assumes something that Janus urges us to reject: that spending on collective bargaining isn’t inherently political. The current framework also puts the burden on employees to opt out of union political spending, as opposed to putting the burden on unions to trying to get employees to opt in.