fbpx

Will the Janus Case Strike the Deathblow to Public Sector Unions?

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 political activities, 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 distinction between 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 Janus case. 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.

Reader Discussion

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.

on February 26, 2018 at 07:24:49 am

http://www.presidency.ucsb.edu/ws/?pid=15445

FDR's letter on the Resolution of Federation of Federal Employees Against Strikes in Federal Service
August 16, 1937

All Government employees should realize that the process of collective bargaining, as usually understood, cannot be transplanted into the public service. It has its distinct and insurmountable limitations when applied to public personnel management. The very nature and purposes of Government make it impossible for administrative officials to represent fully or to bind the employer in mutual discussions with Government employee organizations. The employer is the whole people, who speak by means of laws enacted by their representatives in Congress. Accordingly, administrative officials and employees alike are governed and guided, and in many instances restricted, by laws which establish policies, procedures, or rules in personnel matters.

Particularly, I want to emphasize my conviction that militant tactics have no place in the functions of any organization of Government employees.

read full comment
Image of Roosevelt by any other namesake
Roosevelt by any other namesake
on February 26, 2018 at 11:45:23 am

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.

What would such a theory say about the use of school vouchers for religious schools? The SCOTUS has held that there is no wrongful endorsement of religion when government-financed vouchers are used in religious schools, with the understanding that the vouchers are paying for (secular) education services. The fact that the organization that receives the funds also engages in religious proselytizing is deemed not to be relevant. If that’s true for vouchers, why not for union dues? Or, if it’s not true for union dues, should we now conclude that it’s also no longer true for vouchers?

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.

Why not?

Pretty much all taxpayers subsidize the “overhead” and the “administrative expenses” of the Democratic Party. Wherever the party has offices, taxpayers fund the roads that reach those offices. They fund the police and fire services that serve those offices. They pay for the military and border patrols that keep the Russians from engaging in more direct electoral meddling. They pay for the standard units of currency with which the staff are paid. Etc. Such funding of administrative costs is omnipresent in our society.

Indeed, I (and people of many political affiliations) disagree with the president on a number of things. Why should we have to pay federal taxes? Isn’t that compelled speech?

read full comment
Image of nobody.really
nobody.really
on February 26, 2018 at 11:46:21 am

[T]he 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.

Oh, those naughty unions, wielding their clout over feckless officials to push through ruinous pension plans.

In other news, Republicans pass a massive tax cut to reward their corporate masters, propounded on the threadbare pretext that that tax cuts pay for themselves. Because in Pulliam’s word, government debt is bad only when it’s less than $1.5 trillion and designed to help the middle class?

read full comment
Image of nobody.really
nobody.really
on February 26, 2018 at 11:48:58 am

Finally, a word on editing:

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.”

* * *

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.

Pulliam’s commentary ably documents how the Janus case threatens one of the major funding sources available to progressive causes. So what is the point of disparaging progressive responses as “breathless” and “hysterical”? If Pulliam’s analysis is accurate, then I can’t fault progressives for employing every means at their disposal to influence the case’s outcome. Would we characterize the Allies’ response to the Nazis on D-Day as “breathless” and “hysterical”?

This characterization seems especially biased when contrasted with Pulliam’s characterization of conservative’s efforts to influence the case: “an outpouring.”

Elsewhere on this blog I had a discussion with a commenter on the benefits of presenting policy analyses without overt injections of personal preferences. I commend the idea more generally.

read full comment
Image of nobody.really
nobody.really
on February 26, 2018 at 13:36:03 pm

" Would a requirement that state or local government employees contribute to the Democratic Party..."

Are you kidding me, Mark?
What the heck do you think they are presently doing!

read full comment
Image of gabe
gabe
on February 26, 2018 at 13:41:40 pm

Really now, can you be more unserious?

How about a NYC Fire Dept Official" - yes, that means he was not even a Fireman but a human resources bureaucrat - with an annual pension of $284,000+ - twice his highest pay as an official?

You did use the right word - RUINOUS!!!!

Care to take a guess at what municipal pension liabilities total out to!!!!!!

But here is the best thing:

Citizens have an option and many are exercising that option' MOVE OUT OF THE JURISDICTION; then again, so too are many corporations.

I guess we will allow the noble nobodys of the world to pay the tolls ?

read full comment
Image of gabe
gabe
on February 26, 2018 at 13:43:39 pm

Three long comments from “nobody.really” on a single post proves my point: the Left is in full-blown hysteria. I rest my case.

read full comment
Image of Mark Pulliam
Mark Pulliam
on February 26, 2018 at 14:38:27 pm

"[nobody really] is in full-blown hysteria. I rest my case.

Hey so what is new for the defender of the minions in that vast [left] wing conspiracy aka Public Sector employees. -apologies to the Fat Lady in a Pantsuit, of course.

read full comment
Image of gabe
gabe
on February 26, 2018 at 15:35:47 pm

Thank you for the reply, and the testimony. Convenient that we can each demonstrate the merits, such as they are, of the other's arguments.

read full comment
Image of nobody.really
nobody.really
on February 26, 2018 at 15:39:55 pm

Glad you feel that way. So I'll make you a deal: Let's have my side pick up the cost of state and local public employee pensions, and your side pick up the cost of the national debt. Agreed?

read full comment
Image of nobody.really
nobody.really
on February 27, 2018 at 10:36:17 am

OK, YOU LOSE!!!

Total pension liabilities for Fed, State and Municipal authorities exceeds the 17 trillion or so for the Federales unless you include Soc Security and I ain;t signing up for that. And remember California has escaltor and guaranteed rates of return on pension plans

But clever of you to exclude Federale pension costs on your side. I suppose, like most lefties, you don;t want to pay for yourself.

read full comment
Image of gabe
gabe
on February 27, 2018 at 14:34:59 pm

[…] the exercise of raw political power.” Additional commentary on Janus comes from Mark Pulliam at Law and Liberty, Michael Paarlberg in an op-ed at The Guardian, the editorial board of The New York Times, Robert […]

read full comment
Image of Osibogun and Partners - Law Firm
Osibogun and Partners - Law Firm
on February 27, 2018 at 15:18:51 pm

Uh ... dude? Have you checked the size of the national debt recently?

read full comment
Image of nobody.really
nobody.really
on February 27, 2018 at 19:34:20 pm

Uh... like i said, I ain;t taking on the unfunded Fed pension / Social Security liabilities - so I kept the figure low. Yep, it is closer to $20T BUT add-on Soc Sec / Med and Pension and we are in FIFTEEN FIGURE territory.

So I guess we had BOTH better go out NOW and buy our Wine and Bourbon before we start paying this ghastly sum off.

read full comment
Image of gabe
gabe
on February 28, 2018 at 11:54:55 am

Since Democrats like unions so much I expect the big tech democrat supporters will soon have unions for all of their workers.

read full comment
Image of Clair webb
Clair webb
on February 28, 2018 at 12:50:46 pm

When I was a graduate student at UCDavis, I had to be a member of the SEIU because they represented teaching and research assistants. I had to pay dues out of my little stipend and the university had to pay into a pension fund. Needless to say, in my 2 years, I never benefited from representation, nor did I benefit from the pension much (I got a $200 payout when I graduated). They were just exploiting students for an income stream. Hopefully Janus will put an end to such abuses and ensure that unions deliver value to all their members, and people who they don't serve are not forced to pay in.

read full comment
Image of Josh
Josh
on February 28, 2018 at 13:13:24 pm

Some kind of divide seems necessary between public service, and politics. The example that comes to mind is whether the military should become a union, and influence or subordinate elected officials to their will. That violates, to my way of thinking, a fundamental expectation of the U.S. system of government. Allowing public employees to become political, as they have, illustrates the danger.

read full comment
Image of Jaime Manzano
Jaime Manzano
on March 04, 2018 at 02:57:42 am

[…] v. AFSCME: The Supreme Court hears oral arguments in a free speech case that could end forced payment of dues for public sector unions. […]

read full comment
Image of The Pentecaust: Parkland, Free Speech Cases, Southern Baptists & Demographic Replacement – Sons of Europa
The Pentecaust: Parkland, Free Speech Cases, Southern Baptists & Demographic Replacement – Sons of Europa
on December 06, 2018 at 06:02:15 am

[…] one of the most important—and closely-watched—cases decided during the 2017-18 term, Janus v. AFSCME, the U.S. Supreme Court overruled Abood v. Detroit Board of Education [1] and held that requiring […]

read full comment
Image of After Janus, What’s Next?
After Janus, What’s Next?
on December 24, 2018 at 06:07:26 am

[…] laborious road to Janus allowed the Court to review—and carefully scrutinize—its precedents regarding the […]

read full comment
Image of Beyond Janus: Revisiting the Unified Bar
Beyond Janus: Revisiting the Unified Bar
on March 13, 2019 at 06:02:09 am

[…] year’s decision in Janus v. AFSCME (2018) is properly seen as a landmark ruling in the area of compelled speech (e.g., here and here), […]

read full comment
Image of Getting Over the New Deal with Janus
Getting Over the New Deal with Janus

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.