Public-sector unions, long accustomed to getting their way, received a rude awakening this morning. By 5-4, the U.S. Supreme Court ruled in Janus v. AFSCME Council 31 that nonmember state and local government employees are not required to pay partial dues (“agency fees”) to a union representing them. The decision overturns over 40 years of union monopoly power now practiced in nearly two dozen states. In so doing, it will hamper the ability of public-employee unions to route dues collections toward political activism. Justice Samuel Alito, writing for the majority, stated, “States and public-sector unions may no longer extract agency fees from nonconsenting employees.” Union officials fear that millions of workers now will be able to choose whether or not to pay dues. Frankly, such a prospect should be welcomed, not feared.
Union Corruption Update described this case in detail last fall after the Supreme Court had granted standing. Mark Janus (in photo), a child support specialist for the State of Illinois, believed that the roughly $45 per month assessment imposed upon him by an affiliate of the American Federation of State, County and Municipal Employees (AFSCME) effectively infringed upon his First Amendment liberties. In a January 2016 guest editorial for the Chicago Tribune, Janus explained: “I am not anti-union. Unions have their place. And some people like them. But unions aren’t a fit for everyone. And I shouldn’t be forced to pay money to a union if I don’t think it does a good job representing my interests.” His lawsuit reflected a reasonable position. And it was decades in the making.
Back in 1977, the Supreme Court had ruled in Abood v. Detroit Board of Education that a local teachers union had the constitutional authority to collect dues from nonmember employees under contract even if the employees objected. This decision opened the door for public-sector unions across a wide range of occupations to escalate contract demands and elect (and re-elect) supportive political office-seekers. With labor and management more than ever sharing an interest in expanding the size and reach of government, public-sector wages, salaries and benefits grew well out of proportion relative to those of the private sector. Union contracts, more than any other factor, have locked in state and local governments in Illinois, New Jersey, Rhode Island and other states into virtually unsustainable long-run pension commitments.
At the same time, public-sector workers covered by a union contract were challenging this monopoly power. Often, they took their cases to the U.S. Supreme Court. In 1986, the High Court ruled in Chicago Teachers Union v. Hudson that a union cannot decide on an agency fee schedule for nonmembers without first soliciting their views. In 1991, the Court ruled in Lehnert v. Ferris Faculty Association that public-sector fees must be “germaine” to the collective bargaining process and must not “significantly add to the burdening of free speech that is inherent in allowance of an agency or union shop.” In 2012, the Supreme Court concluded in Knox v. SEIU Local 1000 that a Sacramento affiliate of the Service Employees International Union (SEIU) had acted illegally in imposing a special assessment on all covered employees in order to fund opposition to certain California state ballot initiatives. And in 2014, in Harris v. Quinn, the Court ruled that nonunion private-sector home care providers in Illinois could not be forced to pay agency fees to a public-sector union simply because some or all of their paychecks were derived from state Medicaid funds.
Despite these rulings, the basic framework laid down by Abood remained in place. If a worker wanted to keep his job, he had to pay up. That would begin to change, however, in June 2015 when the Supreme Court agreed to hear the case of an Orange County, Calif. public school teacher, Rebecca Friedrichs, who along with several other teachers, sued the California Teachers Association, an affiliate of the National Education Association (NEA), to recover agency fees they had paid. That the High Court granted certiorari was somewhat remarkable given that the case previously had been dismissed by a federal district court and then a circuit court. The plaintiffs might well have won that case were it not for the untimely death of Justice Antonin Scalia in February 2016. The following month the Supreme Court announced that it was irrevocably deadlocked at 4-4. The circuit court dismissal thus stood intact. But that hardly ended matters. Another test case was almost inevitable. That’s where the Janus case came in.
Mark Janus, like Rebecca Friedrichs, had an upward battle to get heard. He had been rebuffed by at the both the district and circuit levels. But Donald Trump was now president. And his nominee to replace Justice Scalia, Neil Gorsuch, having been approved by the full Senate, ascended to the Supreme Court bench in April 2017. That September, the High Court granted standing to Janus, whose original suit had been filed on his behalf by Illinois Republican Governor Bruce Rauner in February 2015. Organized labor, well-funded and ready to fight, was not happy. A coalition of public-sector unions – AFSCME, the American Federation of Teachers (AFT), the NEA and the SEIU – issued a joint statement calling the lawsuit “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.” AFSCME, the defendant, weighed in on its own, denouncing the lawsuit as “attacking the freedom of working people.” Joining AFSCME was Illinois Democratic Attorney General Lisa Madigan. Joining Mark Janus, in addition to Governor Rauner, were the Springfield, Va.-based National Right to Work Legal Defense Foundation and the Chicago-based Liberty Justice Center. The Supreme Court heard arguments this February. A decision was imminent by the end of this June.
Today the ruling happened. By a 5-to-4 margin, the Court ruled that Mark Janus could not be compelled by his union to pay agency or “fair share” dues. Deciding for the majority were Chief Justice John Roberts and Justices Anthony Kennedy (who announced his retirement only hours later), Clarence Thomas, Samuel Alito and Neil Gorsuch. Joining in the minority were Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan. “We recognize the importance of following precedent unless there are strong reasons for not doing so,” Justice Alito wrote in his majority opinion. “But there are strong reasons in this case. Fundamental free speech rights are at stake. Abood was poorly reasoned. It has led to practical problems and abuse.” Responding to the frequent charge leveled by unions that non-payers are “free riders” mooching off workers who pay, Alito incorporated Janus’ words: “He argues that he is not a free rider on a bus headed for a destination that he wishes to reach but is more like a person shanghaied for an unwanted voyage.” Justice Kagan wrote in her minority opinion that the decision will have “large-scale consequences” and that “judicial disruption does not get any greater than what the court does today.” In the end, however, the individualist view prevailed.
Mark Janus’ supporters were elated. President Trump tweeted: “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!” Mark Mix, president of the National Right to Work Legal Defense Foundation, issued this statement, a mix of celebration and caution:
Today’s decision is a landmark victory for the rights of public-sector employees coast-to-coast that will free millions of teachers, police officers, firefighters and other public employees from mandatory union payments. While this victory represents a massive step forward in the fight to protect American workers from forced unionism, that fight is far from over. Union officials and their allies in state government have already taken steps to prevent workers from exercising their rights under the Janus decision, while millions of private-sector workers in states without Right to Work protections are still forced to pay union fees or else be fired. Further, workers of all stripes continue to have their freedom of association violated by being forced under union monopoly ‘representation’ against their will. So while we celebrate today’s decision, there remains much work to do to both enforce and expand upon this historic victory over coercive unionism.
One of the states that already had neutralized the impact of the ruling is New York. This April, anticipating a 5-4 decision in favor of Mark Janus, Governor Andrew Cuomo signed a bill passed by the legislature that requires public employers to inform unions of all new hires and allow them to meet with (i.e., accost) these workers within 30 days. It also authorizes unions to deny certain services to workers who opt out of paying agency fees. Opting out, in fact, is what a lot of workers across the nation may do. A report issued in May by the Illinois Policy Institute, the parent organization of the Liberty Justice Center, projected that the Janus ruling will shrink public-union membership nationwide by 726,000 workers, or 15.3 percent in the 22 states that until today had required public-sector workers to pay dues. Of the workers likely to decline to pay, 136,000 are in New York State alone.
Union leaders and their champions, needless to say, are infuriated. Roberta Lynch, director of AFSCME Council 31, the defendant union, called the decision “a blatant political attack by Bruce Rauner and other wealthy interests on the freedom of working people to form strong unions.” Randi Weingarten, president of the 1.6 million-member American Federation of Teachers, said: “It’s really a race. This is an existential threat.” AFL-CIO President Richard Trumka tweeted, “LIVE: I’m reacting to the #Janus decision. Don’t mourn. Organize. #UnionStrong.” He also termed the ruling “a political stain” on the history of the Supreme Court. And a union partisan in Congress, Rep. Barbara Lee, D-Calif., issued this statement: “The Supreme Court decision today attacks the basic freedoms of working people to organize and secure a better life for their families. American workers are more productive than ever – but the excessive power of greedy corporate interests prevents families from getting ahead.”
This sort of moral theater obscures the basic issue of worker liberty. Public-sector union officials should not be assumed to be public-spirited. They are intensely focused on their interests and on the formation of political alliances. Union leaders argue that employees whom they represent have an obligation to pay tribute. Since these workers owe their prosperity to union representation, the union argument goes, they must pay their fair share. This is a distortion. Unions, it is true, confer benefits upon members and fee payers. But they also impose costs. It is up to each individual worker to decide whether or not the costs are worth it. Mark Janus believed they weren’t. By sticking his neck out and winning, he has enabled millions of public-sector employees in the U.S. to have a choice as well.