The U.S. Supreme Court is preparing to hear arguments next week on whether to outlaw mandatory public-sector union dues in a case that could fundamentally change labor law.
Lead plaintiff Mark Janus and two other Illinois state workers argue that mandatory dues violate their constitutional rights under the First Amendment. The lawsuit is aimed at reversing a decades-old ruling by the court which affirmed the right of labor unions to collect fees from nonmembers. The case is scheduled to be heard Feb. 26.
The American Federation of State, County and Municipal Employees (AFSCME) is the union the lawsuit is specifically challenging – with the eventual aim to end mandatory dues or fees for all public-sector workers. Janus v. AFSCME Council 31, as a result, could become one of the most impactful labor-related lawsuits in the country’s history.
The arguments comedown to whether mandatory payments to unions are beneficial to workers. Those on the left typically believe unions are critical to protecting workers and upholding their rights and should be compensated for that. Those opposed to that idea argue workers should have the right to choose whether paying a union is best for them.
Janus v. AFSCME specifically targets public-sector unions because they deal directly with the government. The U.S. Constitution bans compelled speech, which includes being forced to fund political activities. Labor unions currently can require dues in many states so long as nonmembers have the option of paying a nonpolitical fair-share fee.
The lawsuit argues that many activities conducted by public-sector unions are political in nature because they deal with the allocation of government resources. The National Right to Work Legal Defense Foundation (NRTW) and the Liberty Justice Center (LJC) have been assisting the state workers in their challenge.
“This is speech directed at the government,” Patrick Semmens, vice president for public information at NRTW, told InsideSources. “There is no question about that, that’s what a public-sector union does. The government selects the union, forces everyone else to subsidize the union just so it can turnaround and talk to the government.”
The fair-share fee can only cover the cost of representing that worker and not political activities. Labor unions and their supporters argue that the fair-share fee helps avoid what is known as the free-rider problem. Labor unions that get voted in as an exclusive representative for a workplace have to represent every worker regardless of whether they pay – so some workers might choose not to pay, knowing they’ll get the benefits anyways.
“The case aims to erode the freedom to form unions to improve our lives and the communities we serve,” AFSCME argued. “Real freedom is about making a decent living from our hard work; it’s also about having time to take a loved one to the doctor, attend a parent-teacher conference and retire in dignity. The corporate special interests behind this case do not believe that working people should have the freedom to negotiate a fair return on their work.”
Semmens counters that the argument doesn’t hold up because many political organizations advocate for policies that help people without expecting payment. NRTW, he argues, could make the same argument since it advocates for policies that help workers gain a choice on whether to pay their union. Some workers might also oppose the benefits their union is fighting for.
“We don’t view these people as free-riders, they are forced-riders,” Semmens said. “If you want to extend the metaphor, these are kidnap victims. They’ve been driven to a place they don’t want to go and then told it’s only fair for them to pay their share of the gas. It really doesn’t work. These people were forced into union representation they don’t want.”
Semmens adds that in many cases they are harmed by union representation that has been forced on them against their will. He points to seniority policies that many unions advocate for – which reward workers based on how long they’ve been working as opposed to how hard they work.
AFSCME might also argue that mandatory fees serve a compelling state interest in keeping labor peace. Laws or policies that impact fundamental constitutional rights are evaluated by the court using a strict scrutiny test. That test requires that the law have a compelling state interest to justify its impact on constitutional rights.
The U.S. Supreme Court has already ruled in favor of the union position during the 1977 case Abood v. Detroit Board of Education. The justices found that unions could require fees from nonmembers while also establishing the nonpolitical fair-share fee. But the new lawsuit argues public-sector collective bargaining and political lobbying are indistinguishable.
Semmens notes that Abood has caused problems over the decades because the line on what counts as political activities was not clearly defined. This has resulted in later court decisions that have contradicted each other. He notes, for example, that teachers’ unions could advocate for seniority without it being political merely based on how they do it.
“If they were to send a lobbyist into the state legislature to push for a bill to do that, in theory, they shouldn’t be able to charge nonmembers for that,” Semmens said. “But if they ask for the very exact same thing over a bargaining table, when they’re trying to get the school board or state to agree to that in a union contract, they charge people for that.”
The U.S. Supreme Court in recent years has begun applying a stricter standard on what constitutes political activities. Harris v. Quinn dealt with whether home healthcare providers could be unionized as state workers. Knox v. Service Employees International Union dealt more specifically with what the standard should be generally.
“A large part of it is pointing out what it said in Knox and Harris,” Semmens said. “Prior to that, the court had never really laid out what level of scrutiny applies to these forced fees to determine whether or not there is a First Amendment violation. And in Knox, for the very first time, they said strict or exact scrutiny is what applies.”
Semmens adds that the standard determined in Abood would not reach that level of judicial scrutiny which Knox later established. A decision in favor of the state workers, he argues, could fix some of these contradictions by establishing a clear line on what counts as political speech.
Labor unions and their supporters have also argued that the state workers are being used in a corporate scheme to undermine worker rights. The Economic Policy Institute (EPI), a progressive research nonprofit, tackled the issue Feb. 21 in a paper that allegedly found the case is a coordinated effort financed by wealthy donors.
“This case is one of the most important cases to corporate interest groups,” EPI labor counsel Celine McNicholas, who authored the paper, said in a statement. “The outcome of Janus will affect millions of working people across the country and will impact the public services we depend on these workers to provide.”
The U.S. Supreme Court heard a nearly identical case back in 2016. Rebecca Friedrichs and nine other teachers challenged mandatory payments to the California Teachers Association (CTA). Their lawsuit also sought to prove that public-sector union activities are political by nature.
Friedrichs and the other teachers eventually lost their case after the death of Justice Antonin Scalia. His death split the court which resulted in a tie vote by the justices. A split decision defaults to the lower-court which ruled against the teachers. Justice Neil Gorsuch was appointed to fill the empty seat and is likely to become the deciding vote.
Gorsuch is expected to rule in favor of the state workers against the union, but nothing will be known for sure until the final decision is unveiled later on. Such a decision would set a legal precedent at the highest court which could potentially apply to all public-sector workers.
Labor unions could lose a lot if the justices rule in favor of the state workers. The Bureau of Labor Statistics (BLS) reported that the union membership rate stands at 34.4 percent for public-sector workers, but only 6.5 percent for private. But the true impact is still unknown since its unclear how many workers will actually choose to leave.
AFSCME did not respond to a request for additional comment.