Law & the Courts

Janus v. AFSCME at the Supreme Court: What’s at Stake?

Mark Janus addresses the news media outside the Supreme Court in Washington, February 26, 2018. (Leah Millis/Reuters)
Should you be forced to subsidize political speech you dislike, and should you be coerced into joining a union?

A curious fiction in American political life is the tendency to treat coerced behavior as equivalent to voluntary action. The most prominent example of this might be the recent repeal of the Obamacare mandate to buy health insurance. When the mandate was in place, people faced financial penalties for not buying health insurance. But critics of the repeal lambasted it for taking insurance away from people, even though that insurance was chosen only under threat of fines. The fact is that the repeal simply gave people the option to voluntarily choose to not buy insurance.

We see this logic again in Janus v. AFSCME Council 31, in the Supreme Court this week. We hear that the case could decide the fate of unions, that it could “deal a major blow” to minorities, as Vox put it, and even that it could reintroduce segregation to America.

Janus thinks that the mandatory fees are compelled speech, because he is forced to subsidize political speech that he does not condone.

What, then, is it really about? Mark Janus, a child-support specialist who works for the Illinois state government’s Department of Healthcare and Family Services, is not a member of the American Federation of State, County, and Municipal Employees union. Despite this, he is required to pay “agency fees” to the union for any perceived benefits he receives as a result of the union’s bargaining. More than 20 states have mandated similar union fees for workers, whether or not they are union members. Janus thinks that the mandatory fees are compelled speech, because he is forced to subsidize political speech that he does not condone. He is especially troubled that the union, in its positions and policies, ignores the state’s fiscal troubles, which are considerable.

Such fees were upheld by the Supreme Court in Abood v. Detroit Board of Education (1977), a case brought by Detroit public-school teachers who did not want to be affiliated with their union and did not think that political activities were fitting for public-sector employees’ organizations. If the Supreme Court rules in favor of the plaintiff this time around, it would reverse the Abood decision.

This would not, by any means, end public-sector unions. Indeed, 35 percent of surveyed AFSCME members state that they would remain dues-paying members even if not mandated to, 50 percent are on the fence, and only 15 percent would certainly forgo association with the union. Clearly, the union would not disappear if it lost the ability to force membership by extracting fees from non-members. (Mandated fees increase people’s incentives to join unions — if you have to pay the fee, you might as well join.) AFSCME would shrink, yes, but only because people would exercise their First Amendment right to not associate with the organization.

As the solicitor general of Tennessee, Andrée Sophia Blumstein, writes in an amicus brief in support of the petitioner (italics mine):

Proponents of the outcome in Abood argue that mandatory agency fees are justified, on the theory that nonmembers should not be “free riders.” Because the efforts of an exclusive representative will “benefit” even nonmembers, those beneficiaries should pay their “fair share” to compensate the union for its efforts. But this theory ignores the fact that public-sector unions are already well-compensated by the enormous power and concomitant advantages they get from choosing to become exclusive bargaining representatives. And it ignores the disproportionate toll on the free-speech rights of the nonmembers.

The nonmembers are not free riders; they are hijacked riders. Mandatory agency fees compel nonmembers’ union association. Mandatory agency fees also compel those who pay them to support particular speech. The nonmembers are forced to support a government-sanctioned advocacy organization to lobby the government and to influence public policies on behalf of a special-interest group from which they have purposefully disassociated themselves.

Mandatory financial contributions to unions put public-sector workers in an odd position: They belong to organizations that ostensibly advocate on their behalf in one capacity (as employees) in a way that comes at a cost to them in another capacity (as citizens and taxpayers). This is a fundamentally different from how private-sector unions work, because the actions of a public-sector union necessarily guide public policy. Indeed, this is why many stalwart supporters of unionization in the early days of the labor movement, such as Franklin Roosevelt, thought that public-sector unions should not engage in collective bargaining. It’s an inherently conflicted enterprise: The public unions bargain for higher wages and benefits for their taxpayer-funded workforce, but these employees must then pay for those increases with higher taxes. Plus, as citizens, union members and their friends and families are on the hook should something go wrong (as with Illinois’s fiscal crisis).

Rather than destroying unions, the end of mandatory contributions or membership will probably make them healthier and more dynamic organizations. Not only will their membership consist only of those people who want to belong, but they will be motivated to think through their policies in order to attract as many members as possible. Indeed, quite a large chunk of that 50 percent of the current membership who are on the fence could be won over yet. But coerced membership or payment to any organization is a losing moral proposition. Should it end, it would be a win for free speech and free association, and for the distinction between political partisanship and the smooth functioning of bureaucratic institutions.

Jibran Khan is the Thomas L. Rhodes Journalism Fellow at the National Review Institute.

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