This column first appeared Feb. 26 on Liberty and Law.
The Supreme Court will hear oral argument today [February 26] in one of the term’s most important—and highly publicized—cases, Janus v. American Federation of State, County, and Municipal Employees, Council 31. As many readers are aware, the case involves the constitutionality of “agency shop” arrangements in public sector collective bargaining agreements, which compel non-member employees to make payments in lieu of union dues as a condition of their employment. Agency shop clauses are commonly used in public-sector labor contracts, enabling powerful unions representing teachers and other government employees to collect large sums of money from workers who never consented to such exactions (and who, for that matter, never voted in favor of union representation).
The critical issue is whether the First Amendment prohibits such clauses as “compelled speech.” In both the private and public sectors, agency fee-payers cannot be compelled to support the unions’ purely politicalactivities, such as lobbying, election canvassing, and campaign contributions. Mark Janus, a state employee from Illinois, objects to being required to pay AFSCME $45 per month to keep his job. Janus contends that the mandatory payment of even so-called “collective-bargaining expenses” for government employees—the cost of contract administration and grievance adjustment, for example—is unconstitutional because public sector unions are inherently political, the political component of their activities is not divisible, and—most importantly—unlike the private sector, “state action” exists because the employer is a governmental entity.
“Dissenting employees,” as they are sometimes called, complain that being forced to pay agency fees to a public-employee union is like being required to support a political party against their wishes. Would a requirement that state or local government employees contribute to the Democratic Party be less offensive if the payment was earmarked for “overhead” and “administrative expenses” rather than messaging activities and candidate support? Of course not.
In the controversial and momentous decision in Abood v. Detroit Board of Education,[1] the Supreme Court in 1977 failed to draw a distinction between private sector union contracts (which have been authorized under federal law since the Wagner Act in 1935), and public sector contracts, which are governed by state law. Many critics (myself included)[2] condemned Abood for overlooking the fundamental distinctionbetween private businesses and the government as employer, an oversight that possibly resulted from the Court’s unfamiliarity with public-sector unions 41 years ago (since public employers are excluded from the National Labor Relations Act), and the fact that the unionization of government employees was at a relatively early stage in 1977.
Not anymore. As I noted here in a 2016 post, entitled “The Decline of Self Rule,” in recent decades public employee unions have outstripped their private-sector counterparts in terms of membership and influence. Indeed,
"an astounding 45 percent of local government employees—including the heavily unionized occupations of teachers, police officers, and fire fighters—are unionized. This rate is considerably higher than the peak of private sector union membership (around 35 percent) in 1954, when the auto industry was in its heyday, American steel makers dominated the world market, many industries (airlines, communications, interstate trucking) were still regulated (and therefore protected from competition), and domestic manufacturers faced few global rivals."
In heavily unionized strongholds such as California, New York, and Illinois, I observed that “the rate of union membership among employees of large municipalities approaches 100 percent—a phenomenon never observed in any private sector industry, even Detroit when the Big Three auto makers had a virtual monopoly in the domestic automobile market prior to 1970.” As union membership in the private sector has free-fallen, due to global competition and worker preferences, public employee unions have taken up the slack. A Huffington Post article breathlessly entitled “This Supreme Court Case Is The Biggest Threat to Organized Labor In Years” spills the beans: “The particularly high rate of public sector union membership . . . has helped to prop up organized labor as a whole.”
As the ranks of unionized public employees exploded since 1977, fueled in part by Abood, the pernicious nature of public sector unions became increasingly clear. Public sector unionism distorts democracy. Absurdly generous public employee pension benefits—bordering on plunder—resulting from one-sided “collective bargaining” between government employee unions and the feckless officials they elect have bankrupted many cities.
The Court began to retreat from the ill-advised reasoning of Abood, beginning in Knox v. SEIU (2012) (calling Abood “something of an anomaly”), and more obviously in Harris v. Quinn (2014) (labeling Abood“questionable” and “troubling,” and concluding that the Court had “seriously erred” and “fundamentally misunderstood” the private-sector precedents). Most observers regarded Abood as a dead man walking—a battered precedent about to be dispatched into well-deserved oblivion.
The case in which Abood was expected to be to administered the coup de grace was Friedrichs v. California Teachers Association in 2016. Unfortunately, the Court—due to Justice Scalia’s untimely demise—ultimately deadlocked 4-to-4 and upheld the judgment below in a one-line per curiam opinion. Once Justice Neil Gorsuch was confirmed last year, observers attentively watched to see if a successor case to Friedrichs was in the appellate pipeline. Janus is that case.
In light of the history, briefly summarized above, the liberal establishment—of which public employee unions are a major pillar—recognizes that Abood is on life support. Losing the right to collect agency fees from non-members represents an existential crisis for the Left because the experience in Wisconsin and Michigan—where the same result was achieved by statute—indicates that many government employees will decline to support unions absent compulsion. This mirrors the declining support for organized labor by employees in the private sector.
Without massive amounts of money to spend in elections, including hundreds of millions of fungible dollars in coerced “agency fees,” much of the political power wielded by AFSCME, SEIU, NEA, and other public sector unions will evaporate. Accordingly, liberal commentators have gone into full-blown hysteria, filing numerous amicus briefs in Janus, and predicting doom if Abood is overruled. The Left reserves this type of overheated rhetoric for watershed cases involving core progressive issues such as abortion rights, and Janus certainly qualifies.
The impending overruling of Abood has likewise inspired an outpouring of articles and amicus briefs from the Right side of the political spectrum. The Wall Street Journal recently devoted its lead editorial to the Januscase. Indeed, all the pomp and spectacle accompanying Janus invoke the image of a hyped prize fight, awaiting the opening bell. All that is missing is a tuxedoed Michael Buffer, intoning “Let’s get ready to rumble.” Grab some popcorn and watch. The constitutional title is on the line.
Public sector unionism—launched in the 1960s—was a bad idea, but compelled speech compounds the error by violating dissenting employees’ First Amendment rights. Public opinion is shifting on coerced payments to unions. Twenty-eight states have already passed “right-to-work” laws, which ban such payments, and the number is growing Abood now sticks out like a union sore thumb across an American landscape of enlarging worker freedoms. In a free society, union membership and financial support should be voluntary. In 1977, the Court made a grievous error. Forty-one years later, after the false start of Friedrichs and the tragic loss of Justice Scalia, it is time to correct the mistake.
[1] 431 U.S. 209 (1977).
[2] Mark Pulliam, “Union Security Clauses in Public Sector Labor Contracts and Abood v. Detroit Board of Education: A Dissent,” Labor Law Journal 31 (1980), 539.