Bench Memos

Law & the Courts

When Is a Union Agency Fee Like a Tax?

(Photo: Nick Cannella/Dreamstime)

Eugene Volokh, summarizing an amicus brief he has written with Will Baude, writes that in Janus v. AFSCME the Court should uphold the imposition of “agency fees” on non-members of public-sector unions, in order to defray the costs of collective bargaining from which all employees putatively benefit.

His reasoning is that on the management side of public-sector collective bargaining, expenses are paid by the extraction of funds from persons perhaps equally unwilling to contribute to the enterprise — namely taxpayers. But everyone concedes that taxes are constitutional even when used to fund activities of which taxpayers disapprove. Hence, by parity of reasoning, the state should be able to compel its own employees to contribute to unions of which they disapprove.

Volokh’s argument is too clever by half. The fact that taxpayers fund the management side of the public employer-employee relationship should be of no moment in the Janus case. Taxes are paid to fund the public interest, which in the case of schools is represented by school boards, which are typically also elected by the public (which thereby gains some leverage over how their taxes are spent). If Volokh wants to argue that teachers’ unions represent the public interest equally as much as do school boards, his argument should be for taxpayer funding of union bargaining expenses, not for the compulsory employee funding of those expenses. And then, of course, the public should elect the union officers.

Matthew J. Franck is the Director of the William E. and Carol G. Simon Center on Religion and the Constitution at the Witherspoon Institute in Princeton, New Jersey.

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