Janus v. AFSCME and the Future of Unions

By James Dail (CMC ’20)

Should someone be compelled to pay a fee to an organization whose values they do not agree with? This is the key question in the Supreme Court case Janus v. AFSCME, although its effects will be more far-reaching than only answering a question about freedom of speech. If the Court rules in favor of Janus, then this could cause the permanent decline of public sector labor unions. Even though there is established precedent that mandatory fees on nonunion members are not a violation of freedom of speech, the current makeup of the Court indicates that the precedent may be overruled.

The argument being made by Janus is that unions are inherently political in their nature, since many of their activities resemble lobbying. Since unions are often supporters of politically liberal organizations, such as Planned Parenthood, for example, then Janus, along with many other conservatives, is being compelled to pay fees to an organization whose views he disagrees with, his First Amendment rights are being violated. With his argument, Janus is trying to persuade the Court to grant nonunion members further free speech protections than what was established in Abood v. Detroit Board of Education forty years ago. In that case, the Supreme Court made a distinction between different types of union activities. It ruled that the union could extract fees from nonunion workers so long as those fees were going to activities that were essential to the union’s operation, and not activities that were purely political in nature.

The AFSCME’s argument is twofold, with the first resting on the precedent put forth in Abood. Forcing a nonunion member to pay union fees is not a violation of First Amendment rights since those fees are not being directly contributed to the political organizations that many conservatives take issue with. Its second argument is a fallback, that even if the Court does find this to be a violation of freedom of speech, then there is a plethora of precedent that states that the government may curtail the free speech rights of public sector workers if there is a compelling government interest for doing so. The government would have a compelling interest to preserve the union fees in this case because there is abundant evidence that shows that unions improve both the condition of the workplace they represent, and by extension, the overall quality of life within a community. These things affect everybody in the workplace.

This case is significant because the unions believe that a victory for Janus will mean the eventual end of public-sector unions. Fees from nonunion members represent a large portion of their revenue, and the withdrawal of those fees would financially cripple the unions and negatively affect their ability to represent workers. If the Supreme Court were to rule in favor of Janus, then it would cause a decline in public sector union power that would be similar to what has happened to private sector unions in “right-to-work” states. To show how steep that decline has been, consider that in the 1950s, roughly a third of private sector workers belonged to a labor union. Today, just five percent do.

Even with the established precedent and the threat to labor unions, the Court is likely to rule in favor of Janus. During the prolonged vacancy after the death of Justice Antonin Scalia, the Court heard oral arguments on a case of a similar nature, Friedrichs v. California Teachers Association, and issued a split four to four decision. Now that Neil Gorsuch, a conservative, has joined the Court, it will almost surely rule in favor of Janus unless one of the other justices changes their minds. If the Court overturns Abood and rules in favor of Janus, then that will likely mean that public sector workers will see increasing wage stagnation, and possibly a corrosion in American community life. States with lower rates of union membership have lower GDP, lower per capita incomes, and lower trust levels. The Court already has precedent for this case. It should not stray from it.

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