Column: Janus v AFSCME

The U.S. Supreme Court recently announced, for the second time in two years, that it would address one of the most significant and contentious labor issues in recent decades. By accepting Janus v. AFSCME, the court seized an opportunity to end the injustice of states forcing public employees to pay dues or fees to a labor union against their will.

The court heard a similar case, Friedrichs v. California Teachers Association, in 2016, but Justice Antonin Scalia’s sudden death left the court deadlocked 4-4.

While federal employees can’t be forced to financially support a union and many states have passed right-to-work laws that prevent public employees from being required to pay union dues or fees as a condition of employment, millions of state and local government workers in 23 states can be fired if they refuse to do so.

From a consumer standpoint, being forced to purchase workplace representation services from a monopoly provider is bad enough. The fact that government unions use the dues they collect to engage in political and ideological activity at odds with the views of many of their members amounts to nothing less than compelled speech in violation of the First Amendment.

In its 1977 decision in Abood v. Detroit Teachers Association, the Supreme Court attempted to draw a line between unions’ representational and political activity. Since that decision, public employees could avoid financially supporting their union’s explicitly political activity if they jumped through enough hoops, but still had to pay a hefty “agency fee” to the union.

The problem, as Illinois state employee Mark Janus argues, is that collective bargaining in government directly affects the size, cost, and services of government and, as such, is inherently political.

As a group of Washington teachers explained last year in the Seattle Times, they are forced to subsidize, through their agency fees, a labor union that disrupts “services to our students and families through illegal strikes,” forces taxpayers to “pay the salaries of union officials,” and opposes “reasonable standardized testing and teacher evaluation.”

Unions counter that government’s interest in ensuring the financial viability of unions and avoiding labor disputes that disrupt the delivery of critical government services justifies the infringement of First Amendment rights that mandatory agency fees entail.

To support the labor peace argument, unions point to the strikes by public employees seeking collective bargaining rights in the 1960s and ‘70s. Many state laws passed during this period establishing collective bargaining in government also permitted unions to compel dues payment. Though often passed simultaneously, collective bargaining for public employees and mandatory unionism are two distinct issues.

Many right-to-work states permit public employees to collectively bargain, and a favorable decision for the plaintiff in Janus would do nothing to limit unions’ ability to bargain as they do now.

An analysis of two federal databases of strikes and work stoppages indicates that public employees in states allowing forced payment are, in fact, far more likely to go strike and stay on strike longer than their counterparts with right-to-work protections, strongly indicating the initial wave of public employee strikes decades ago was about the larger question of collective bargaining rights, not the narrower issue of whether unions should be allowed to compel dues payment.

Unions’ second argument, that “free riding” workers will prevent unions from being financially viable, is similarly untenable. Undoubtedly, fewer public employees will pay dues or fees when they are no longer compelled by law to do so. However, just as many other thriving membership organizations operate on a voluntary basis, many government unions in right-to-work states boast high membership rates and considerable influence.

Having to engage more directly with their members may even prove healthy for unions. As Ben Johnson, former president of the Vermont AFL-CIO, recently contended, “…it’s time for labor to deny what one prominent union leader called the persuasion of power and return to the power of persuasion… The truth is that if your union is worth its salt is has nothing to worry about.”

Regardless of the Supreme Court’s ultimate decision in Janus, labor leaders would do well to heed Johnson’s advice.


Maxford Nelsen is the director of labor policy for the Freedom Foundation, a nonprofit think-tank based in Olympia.