(Emily Larsen, Liberty Headlines) Compulsory union fees for public employees could be ruled unconstitutional by the Supreme Court if it hears a case from Illinois. The certiorari petition is the latest development in growing momentum against compulsory union fees, along with changes on the Supreme Court, new court cases, and increasing right-to-work sentiment.
The National Right to Work Legal Defense Foundation asked the Supreme Court to hear Janus v. the American Federation of State, County, and Municipal Employees (AFSCME), which could result in government employees no longer being required to pay “administrative” collective bargaining fees to a union, regardless if they are a member or not, as a condition of employment. The case is being brought on First Amendment grounds, with the argument that it’s unconstitutional for the government to require public servants to subsidize union officials’ speech.
“Requiring public servants to subsidize union officials’ speech is incompatible with the First Amendment,” said Mark Mix, president of the National Right to Work Legal Defense Foundation, in a press release.
While the Right to Work Legal Defense Foundation has defended Right to Work laws and challenged compulsory unionism since 1968, it hasn’t been able to focus on First Amendment argument until recently. A 1977 Supreme Court decision, Abood v. Detroit Board of Education, ruled that mandatory fees from public employees to unions to cover the costs of collective bargaining (salary and benefit negotiations for a whole group of employees, regardless of union membership) did not violate the First Amendment as long as the fees were used for “administrative” costs and not political purposes.
But changes on the court and increased scrutiny of the details of recent cases regarding public sector employees (Knox v. SEIU in 2012, Harris v. Quinn in 2014, and Friedrichs v. California Teachers Association in 2016) mean that it is both possible and likely that the Supreme Court could rule that compulsory union fees for public sector workers are unacceptable. Had it not been for Justice Antonin Scalia’s death in 2016, that may have happened in the 2016 Friedrichs decision, which ended in a 4-4 tie. Scalia’s replacement, Justice Neil Gorsuch, is expected to rule similarly to Scalia.
Ruling compulsory union fees unconstitutional would not affect private employees in non-right-to-work states, who may have to pay collective bargaining fees to unions depending on their contract with the union. Public entities have a constitutional requirement to uphold free speech, whereas private entities do not.
Even if the Janus outcome does not completely rule compulsory public employee fees to unions unconstitutional, a different case or other actions could spell the end of the fees. Momentum is growing for right-to-work laws, which make it illegal to require union membership or to pay union dues or fees as a condition of employment — including private entities. Twenty-eight states have passed right-to-work laws, with traditionally union-heavy states Kentucky and Wisconsin being recent additions.
Local governments are not thrilled about having to handle the accounting tasks of withholding union dues and fees from employee paychecks and then paying those fees to the union. New Mexico Governor Susana Martinez stood against the practice during contract negotiations in 2014.
The National Right to Work Legal Defense Foundation is working on cases representing public sector employees fighting the same issue in several other states. In Pennsylvania, four teachers sued to keep their jobs without paying fees to the state teacher’s association. In Connecticut, state troopers sued after still being charged union dues after resigning from the union. The foundation is working on similar cases in Massachusetts, Kentucky, and New York.
In the case of Janus v. ASFCME, plaintiff Mark Janus, an employee of the Illinois Department of Healthcare and Family Services, said he got into his line of work because he cares about kids. But he doesn’t want to be forced to give up part of his paycheck to ASFCME every month in order to keep his job.
“[J]ust because I care about kids doesn’t mean I also want to support a government union. Unfortunately, I have no choice. To keep my job at the state, I have to pay monthly fees to [AFSCME], a public employee union that claims to ‘represent’ me,” said Janus in a press release.
AFSCME, an AFL-CIO affiliated union, is the largest public-sector union in the United States representing 1.6 million local government workers. It regularly endorses candidates, organizes activist campaigns for or against legislation, and donates to campaigns. Lee Saunders, AFSCME president, says that the ultimate goal of the Janus v. ASFCME lawsuit is to benefit the wealthy by making labor cheaper.
“It is clear that the corporate CEOs and wealthy special interests behind this case will stop at nothing to make it harder for public service workers like teachers, firefighters, nurses, and public safety workers to speak up together for better public services, stronger communities, and wages and protections that benefit all Americans,” said Saunders in a statement about the case.