For over 40 years, the U.S. Supreme Court has recognized the right of public sector labor unions to collect agency fees from non-union members that they represent in collective bargaining negotiations with management regarding job site working conditions which affect the entire workforce. Now, with the justices about to rule in the Janus vs. AFSCME (American Federation of State, County and Municipal Employees) case, that could change.
The plaintiff, Mark Janus is an Illinois state employee who doesn’t want to pay the union fee that was established as being constitutional in the 1977 Abood v. Detroit Board of Education case. That precedent was first challenged in the Friedrichs v. California Teachers Association Supreme Court case in 2016, which resulted in a 4-4 split ruling after the death of Justice Antonin Scalia, where no action was taken.
The Janus case is supported by right-wing anti-union groups and activists, including the billionaire Koch brothers, the National Right-to-Work Legal Foundation, the Bradley Foundation and the pro-Trump Mercer family. Their objective is to further weaken labor Democratic Party candidates that unions fund, and undermine worker rights. Between The Lines’ Scott Harris spoke with independent journalist Ari Paul, who assesses what’s at stake for public sector labor unions in the Janus case, which was argued before the Supreme Court on Feb. 26.
ARI PAUL: Mark Janus is a civil servant in the city of Chicago who was an agency shop fee payer in Chicago at AFSCME, who argued that it is a violation of his free speech to be compelled to pay an agency shop fee for the union that he is not a member of. The idea here that the Coalition of the Right to Work advocates say is that to have an agency shop fee violates someone’s free speech because you’re compelling their speech – you’re forcing them to make a political statement, because if you pay the union money, you are somehow endorsing everything the union says or does in public.
The argument against that came up from the union side in the Janus case is that this opens up sort of a Pandora’s box. This means that any kind of fee that anyone is compelled to pay in the public realm is then subject to litigation. For example, if a homeowner disagrees with something its local school board does, does it mean one doesn’t have to pay property taxes? If you are compelled to pay a car registration fee at the DMV, are they somehow compelling your speech?
It’s sort of an argument based on any kind of payment to someone else somehow endorses everything that other person or entity stands for. But as shaky as a case that might be, it plays to the conservative majority’s belief that they have said over several years, that money is considered speech and it works to their ideological stance that they would like to disempower unions. In the oral arguments, Justice Kennedy essentially stopped arguing about any constitutional issues and just scolded the solicitor from the state of Illinois to say that unions bankrupt governments, they protect bad teachers, all this sort of litany of anti-public sector union talking points. Sort of just basically showing his hand, that he just wants any kind of case to disempower labor unions.
BETWEEN THE LINES: Now Ari, one of the unstated, but certainly, one of the priority goals of anti-union legislation and this case now before the Supreme Court is to damage labor unions’ ability to fund political candidates, particularly Democratic party candidates. And this, as I understand it, is really a partisan fight going here in the guise of a labor union vs. corporate issue.
ARI PAUL: Yeah, I mean, it’s very clear that organized labor, with some exceptions, but for the most part – organized labor is alive in the Democratic party. More or less and especially on the local level in cities where there’s a lot of union density, labor unions are powerful political players and endorsements can make or break a candidate.
And so, especially in union states with high unionization rates, like New York, California, Illinois, labor unions still are one of the forces that keep those states blue, because of their influence. In the same vein as voter suppression, it’s very important for the political right to make sure they can disempower voters of colors and key states to advance and to also gerrymander districts to favor Republicans. We saw that in Pennsylvania very recently but it was struck down by their Supreme Court, by the state Supreme Court.
This is de-empowering the labor unions; it weakens the Democratic Party hand. But it’s not just the ability to get behind candidates. It’s also their ability to act as advocates in the workplace. It will mean if unions are living under this regime and they’re losing members, that’s less money for union organizers to fund campaigns, to have an office where union staffers and members can meet, strategize and organize. It’s partly political, but it’s also partly economic.
BETWEEN THE LINES: Ari, is there any way to calculate the damage and fallout for the public sector labor unions if this case goes the way we think it will go, in terms of a win for Janus and against AFSCME?
ARI PAUL: Yeah, in worst case scenarios, unions have the right to work states lost, the biggest loss is somewhere in the neighborhood of 20 percent, which, depending on the size of the union, can be a pretty big chunk of change. But it’s also political influence.
One of the arguments that the anti-union side makes when posed with the accusation that they’re not about free speech but really just about disempowering labor unions, they say well everyone is perfectly free to voluntarily pay these dues. And if the union is a “good one” people will go ahead and pay.
And there are unions that maintain high density rates. For example, in the state of Nevada, a right-to-work state, the casino workers union usually stay somewhere in the neighborhood of 95 percent. This is touted as a sort of a success story of a union operating in the right-to-work environment.
But this is where it becomes hard to calculate, because even though they’re keeping the membership and they’re keeping the revenue flow into the union, this means that it changes the focus of how a union operates. The organizers, rather than going out to workplaces and organizing around health and safety campaigns or for the next contract. Or going out and organizing new workplaces. They’re simply having to go around workplaces and find new members and sign them up. It’s a drain on union resources and union money.
So, in the worst case scenario, you’re losing a lot of members. But even in the best case scenario when you keep a lot of your members, it really keeps the union overly focused on keeping members so you have a high density rate. This affects their ability to be politically lnfluential.
For more information on Ari Paul’s articles, visit
• jacobinmag.com/author/ari-paul
• forward.com/author/ari-paul
• jacobinmag.com/author/ari-paul
• forward.com/author/ari-paul
