Nationally, public-sector unions may have lost nearly one in five dues-paying members.
Nationally, public-sector unions may have lost nearly one in five dues-paying members.
Editor’s Note: This is the second article in a series of occasional pieces on the political impact of the U.S. Supreme Court’s 2018 Janus ruling, which affirmed the rights of government employees who had been forced to pay fees to unions that subsidized political candidates and causes contrary to their principles. The first article can be found here.
T hese may not seem like rough times for public-sector unions, but do not be fooled.
True: Not letting a crisis go to waste, national and big-city teachers’ operations such as the NEA and AFT — which fund and wield immense control in the Democratic Party at all levels — have fought diligently and successfully to keep America’s schools closed, and those government workers known as teachers at home. Far from the pandemic’s heroic front lines, there are many a “W” being taken in living rooms in Chicago, San Francisco, New York, and numerous other municipalities, places where monotonous “for the children” claptrap has disappeared, courtesy of the bald-faced contempt for in-classroom education.
Also true: News cycles, even persistent ones, aside, America’s public-sector unions — whose many millions in annual compulsory dues, often dunned from the paychecks of those averse to progressive and Leftist agendas, are and for decades have been the lifeblood of Democratic politics — and those who’ve grown accustomed to their largesse are in for a hell of a time.
They are hemorrhaging members.
The reason is largely due to the United States Supreme Court’s 2018 Janus v. AFSCME ruling, in which an irked Illinois government worker, Mark Janus (a thoroughly nice guy, profiled in this 2019 National Review cover story) sued to protect his First Amendment rights, which, if protected, would mean an end to the practice of public employees being forced to pay dues to AFSCME, SEIU, AFT, NEA, and other union bigfoots that used the reliable stream of plentiful boodle to play and pay for — and indeed rule — partisan politics at national, state, and local levels.
And Mark Janus’s rights were protected, and then some: In a historic majority opinion, Justice Samuel Alito safeguarded not only the workers’ free-speech rights in theory, but in practice, overturning the long-established practices that had guaranteed a flowing cash spigot for union coffers, while narrowing the wiggle room that displeased bosses would find quite tight for navigating:
States and public-sector unions may no longer extract agency fees from nonconsenting employees. The First Amendment is violated when money is taken from nonconsenting employees for a public-sector union; employees must choose to support the union before anything is taken from them. Accordingly, neither an agency fee nor any other form of payment to a public-sector union may be deducted from an employee, nor may any other attempt be made to collect such a payment, unless the employee affirmatively consents to pay.
Across the country, conservative and pro-liberty organizations immediately grasped the consequence of the Janus affirmative-consent requirement — also known as “opt in” and “opt out,” depending on the spin — and began or expanded operations that sought to educate public-union workers on their rights. These, if exercised by refusing to give affirmative consent, would mean clear consciences and — over the course of a typical dues-paying career — many more thousands of dollars kept in their wallets and unavailable for unions to use as capital for increasingly leftist agendas and candidates.
These education efforts, which use an array of marketing techniques ranging from knocking on doors to hosting webinars to launching Janus-follow-up lawsuits (intimidation and the denial of rights is alive and well), have had an immediate impact on union membership in many states, and the flow of cash into the union buckets.
An excellent example is found in Oregon, where the fall-off in union dues-paying has been dramatic. In the 2016 election cycle, the SEIU 503 (consisting of home-health providers and state employees) dropped $6.1 million in political spending, a tad more than the $6 million spent by the Oregon Education Association. The 2020 cycle’s figures are radically reduced: The SEIU expenditures were down to $2.5 million, while the teachers’ union proved a shadow of its former self, with an expenditure of only $686,000. The state’s AFSCME, American Federation of Teachers (AFT), and school-employees union (OSEA) all saw similar, dramatic declines in accessible cash with which to play politics.
Actually, Freedom Foundation, which has been battling for workers’ First Amendment rights, particularly in the Northwest, commenced its fights in Oregon and elsewhere before Janus was handed down, using instead that verdict’s legal harbinger, Harris v. Quinn, to take a bite out of Big Labor political antics. Harris was the important 2014 SCOTUS case concerning Illinois home-service health-care providers. A potential major source of new dues-revenue, many felt strong-armed into government-employee status via a Big Labor-contrived executive order (issued in 2003 by then-governor Rod Blagojevich). Pamela Harris — paid to take care of her son, then hit with mandatory SEIU dues — didn’t like that. She sued. She won.
Despite this win, victory in these types of cases was elusive in lower courts. But then came SCOTUS, which overturned their verdicts, holding that “The First Amendment prohibits the collection of an agency fee” from personal-care providers “who do not want to join or support the union.” Justice Alito’s 5–4 opinion (a precursor to his definitive Janus decision) was narrow, but nevertheless began the dismantling of the High Court’s prevailing Abood precedent, a 1977 ruling that had been a bankrolling godsend to Big Labor.
Freedom Foundation’s efforts to educate workers on their rights have realized significant results: SEIU 503 has seen 40 percent of its home-health providers opt out of dues and agency fees. Along with 503’s state-employee contingent (33-percent drop), OSEA (36 percent), AFT (35 percent), and AFSCME (19 percent), the bottom-line hit to bank accounts of the Beaver State’s public-employee unions has been $15.3 million.
Maxford Nelsen, the Foundation’s director of labor policy, says its Opt Out Today successes have been accomplished by a mix of outreach efforts: “They consist of email, postal mail, doorbelling, leafletting outside government offices, text messaging, billboards, radio ads, and digital advertisements.” All that hit a wall in 2020: “COVID-19 forced us to pause our in-person outreach methods, though we’re looking forward to being able to restart those soon. It also forced us to get more creative.” For example, the organization “recently started hosting webinars” for public-school teachers in Washington State “to learn more about alternatives to traditional union membership/representation.”
The Foundation’s efforts in its Washington home have been as successful as in neighboring Oregon. The big kahuna of Big Labor in the Evergreen State is the Washington Federation of State Employees/AFSCME Council 28 (a.k.a “WFSE”). A year after Janus was rendered, Nelsen says the data shows dues- and fees-paying membership fell a staggering 27.4 percent, from 43,290 to 31,447. Using state payroll information obtained through FOIA requests, the Foundation declared that as of this past January, the WFSE membership-drop number now stands at 32.6 percent.
Smaller-fry unions, such as Washington Public Employees Association, a mix of workers from state agencies and community colleges, have seen similar declines. Again, on the heels of Janus, the dues-paying rolls had fallen 25 percent. Nelsen says that number is now closer to 30 percent.
Another state seeing eye-opening membership declines is Michigan, where the respected Mackinac Center for Public Policy has made the fight for workers’ First Amendment rights a priority.
If lore ever implied a “union” enclave, it was Michigan — a perception that went kaput in 2012 when the political world snapped its head at the news that it had become a right-to-work state. That year, per public records — according to Stephen Delie, Mackinac’s groovily titled “director of Workers for Opportunity” — there were 222,399 dues-paying members of government unions, over half of them (117,265) with the Michigan Education Association, and the rest with the AFSCME (48,720) and AFT (25,068). As of 2020, Mackinac reports that Michigan has but 152,738 dues-paying public union members. That’s a drop of over 31 percent.
In what Mackinac profiles as the collapse of the state’s largest public-sector union, the powerhouse MEA rolls fell by 30 percent, AFSCME by an astonishing 39.2 percent, and AFT by 28 percent. The ensuing cash crunch proved so severe the MEA resorted to hiring collection agencies to squeeze members who owed back dues.
How did the Michigan collapse happen? The right-to-work status kicked off the new reality of declining membership and less dues for Big Labor — but not by much initially.
Then came Janus, but a big factor toward implementing it in practice was a 2020 decision by the Michigan Civil Service Commission. Persuaded by the hard-to-mischaracterize mandate of Justice Alito’s finding for “affirmative consent” (something that has proven elusive with regulators in many other states), the MCSC enacted new rules to implement the decision that union membership cannot be presumed:
If agreed to in a collective bargaining agreement, the state may deduct the dues or service fee of a member of an exclusively represented bargaining unit through payroll deduction. An appointing authority cannot deduct membership dues or service fees unless the employee has made a voluntary authorization, which shall be retained while relied upon to authorize deductions.
The Commission also held that starting in 2022, Michigan “shall not deduct service fees by payroll deduction,” concluding for public-sector Big Labor the days of one-stop dues-collecting. And then there was MCSC’s determination to protect opt-out workers from potential game-playing. The new regulations also declared:
Effective September 1, 2020, an authorization will expire if not authorized or reauthorized during the previous year. The director shall provide annual notice to all exclusively represented employees of the right to join or not join an exclusive representative without affecting employment status, the right not to maintain membership in an exclusive representative to retain employment, an exclusive representative’s duty of fair representation to all bargaining‐unit members, and the prohibition on union activities during actual‐duty time.
These opt-in regulations — which have survived court challenges — have resonated with the workforce. Delie says Mackinac’s analysis shows it accounts for nearly one-third of the overall decline in membership. Its financial impact is serious, denying public unions over $2.8 million in evaporated annual dues.
Ouch.
Proud of what has been accomplished at home, Delie notes a disappointment in the implementation of Janus across the country, where actions by government agencies and officials are limited — and that’s an understatement.
In a recent Wall Street Journal op-ed, he noted some important exceptions to the widespread dawdling in Texas and Indiana, where respective attorneys general have advocated for legislation to make clear and frequent opt-ins state law, and in Alaska, where in 2019, then-Attorney General Kevin Clarkson and Governor Mike Dunleavy teamed up to formally note the state was denying workers their Janus rights, and to issue an executive order that established a formal opt-out system (which has been tied up in courts).
Inactivity and Janus-aloofness by state officials aside, the foot soldiers at Mackinac (which has also launched a national project dubbed “My Pay. My Say.”), the Freedom Foundation, the California Policy Center, and other outfits have drawn blood — deeply in some places. In total, these actions are a noteworthy accomplishment, if not a phenomenon — of both partisan politics and of fundamental rights. This ought to be rightly considered as consequential.
Given its national interest in educating workers, Mackinac has compiled information from many states (derived from public records requests filed by the Mackinac Center to the states and their largest school districts, cities, and counties) as evidence. Of the 15 states where Delie says there is confidence in the data, “we have seen an average drop of 17.6%” from dues- and fees-paying union rolls through 2020. New Mexico (with a decline of over a third) and Michigan top the list. Other states with impressive results are California (21.6 percent), Pennsylvania (19 percent), Vermont (18.7 percent), New Jersey (17.5 percent), and Minnesota (14.7 percent).
Some will look at these numbers and see success: They’d be right to think such. Others will see that there’s much more gold to be had in them hills, and they’d be right, too.
Still others look beyond what is quantifiable, past any denial of moolah to Big Labor, and are attentive instead to the essence of what Mark Janus, Pamela Harris, and the great Rebecca Friedrichs (her 2016 SCOTUS case against the California Teachers Union, handed down after the death of Justice Antonin Scalia, lost on a 4–4 tie) were fighting for — their First Amendment rights — and fighting against, which Justice Alito’s decision aptly expressed as “forcing free and independent individuals to endorse ideas they find objectionable.”
They may be the most right of all.
The fight continues, at the doorbells, and in the courts. A final, forthcoming installment of this little series will pay attention to some important Janus-spawned legal battles now working their way through the system. You have been warned!