Janus case: Friends of the court offer weak defense of mandatory union dues

By Steven Greenhut
January 25, 2018

Sacramento

The nation’s public-sector unions have all but thrown in the towel on the notion of mandatory dues, yet various legal theorists and organizations have submitted briefs to the U.S. Supreme Court defending the right of unions to arm-twist dues from those who don’t agree with the union’s agenda. After reading their arguments, it’s clear why the unions are worried.

The issue before the court – Janus v. American Federation of State, County and Municipal Employees 31, et al. – seems like a clear First Amendment case. Why should government employees be forced to subsidize private organizations that can then use the funds to advance policies the employee might find to be repugnant? Why should such financial support be a condition of one’s employment?

Tossing these rules is a no-brainer for most libertarians. That’s why a recent article on the libertarian Reason website has caused a stir. Based on a friend-of-the-court brief he signed, Eugene Volokh argued that “there’s no First Amendment problem with compulsory union agency fees.”

His argument is fascinating, but not compelling: “The government can constitutionally require people to pay money to the government (in taxes), money that the government can then use for ideological purposes (e.g., supporting a war, opposing racism, promoting environmentalism, and so on). Likewise, the government can constitutionally require people to pay money to unions, money that the unions can then use for ideological purposes.”

The problem, however, is the government is not taking the money and using it for governmental purposes. As commenter Jonathan Adler noted, few of Volokh’s examples “involve monopoly provision of the required service.” Government employees aren’t being forced to just pay for union representation – “they must pay for representation from a specific monopoly provider.”

Volokh also argues that the government forces doctors and attorneys to take continuing education classes. Here, again, Adler offers the appropriate rebuttal: “When a lawyer is required to obtain (continuing education) … they have a choice of the provider – and even some choice about what service will be provided and in what way.” Indeed, the Janus case comes down to choice v. compulsion. Volokh touts himself as a writer who is “sometimes contrarian” and “often libertarian.” In his article, it’s more of the former and less of the latter.

Another unexpected brief comes from U.S. Conference of Catholic Bishops. It’s not surprising that the group would take a pro-union position, given its generally left-of-center political pronouncements. What is surprising, however, is the bishops’ blithe dismissal of the concept of individual choice. The bishops noted that, regarding the general concept that “union security provisions restrict the freedom of workers generally” that such a concept of freedom was “too absolute and extreme.” Like other workplace rules, mandatory unionization “served the orderly functioning of the workplace and the common good of workers.”

The bishops quoted from a past statement opposing states’ “right to work” laws: “Do these measures undermine the capacity of unions to organize, to represent workers and to negotiate contracts? Do such laws protect the weak and vulnerable? Do they promote the dignity of work and the rights of workers? Do they promote a more just society and a more fair economy? Do they advance the common good?”

Those are interesting political and theological questions. I’d answer that laws that give employees a choice about representation actually help unions organize and represent workers. As even some union activists have argued in the face of Janus, the compulsory situation has caused the union leadership to become complacent. Because they don’t need to win over the support of employees, they don’t need to listen to the needs of their members.

Removing such compulsion clearly helps the weak and vulnerable, who are now subject to the whims of union leaders. It’s hard to see how forced dues extractions in promote fairness, justice or the common good. The Janus case involves government employees, and excess union power has driven up government pay and benefit levels to such extremes that it is undermining the public services that the poorest and most vulnerable residents rely upon.

Furthermore, the Christian faith is built on the relationship between God and individual. It’s why the bishops oppose abortion, the death penalty and euthanasia, for instance. So it’s sad to see the upholders of the Catholic tradition put the “common good” above individual conscience.

But none of this philosophizing, interesting as it might be, has much to do with the legal and constitutional question that is now before the high court. Likewise, many of the union arguments against the Janus position focus heavily on rhetoric rather than First Amendment issues.

The case “is nothing more than a politically-motivated assault on the freedom of working people to earn a better life and an attempt to further rig the rules in favor of billionaires and corporate interests,” AFSCME wrote in a recent statement. Labor Notes saw the case in political terms: “When labor activists imagine a world of competing members-only unions, they typically express hope that it will give rise to more militant, progressive and rank-and-file-led organizations that will challenge unions from the left.” But the publication fears “this competition can produce further fragmentation as unions face business-aligned challengers from their right.”

Currently, government workers must pay dues to the designated bargaining unit even if they choose to opt out of union membership. They may exempt themselves from a small portion of the dues that is used for direct political purposes, but they must pay the bulk of their annual union bill. This goes back to a 1977 high court decision (Abood v. Detroit Board of Education) which deemed only the political payments a violation of the First Amendment.

The Janus case pits an Illinois state government employee against a local chapter of AFSCME. Mark Janus argues that “agency fees” – the term for the collective bargaining-related portion of union dues – “inflict the same grievous First Amendment injury as the government forcing a citizen to support a mandatory advocacy group to lobby the government.”

Everything that a government union spends, he argues, involves a political decision. If unions negotiate for higher pay, that means there will be fewer available dollars for other programs. The high court was about to rule in the similar Friedrichs case, but deadlocked 4-4 after the passing of conservative Justice Antonin Scalia. Scalia has been replaced by Donald Trump-appointee Neil Gorsuch, which is why unions are preparing for big change.

After reading these defenses of the union position, it’s clear that the case doesn’t just hinge on the political makeup of the court. Those who want an end to the mandatory collection of dues have a much more compelling constitutional position.

Steven Greenhut is contributing editor for the California Policy Center. He is Western region director for the R Street Institute.

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