No worker should be forced to financially support an organization against his or her will. For too long, government employee unions have possessed the power to compel workers to pay for representation they may not want.
But that could change soon. This week, the U.S. Supreme Court could decide to hear a lawsuit challenging the constitutionality of compulsory union dues among public sector workers.
The lawsuit, Janus v. American Federation State, County, and Municipal Employees, Council 31, challenges, on First Amendment grounds, the validity of “agency fees,” which require non-union public employees to pay fees to an exclusive representative—the union. The plaintiffs argue that laws forcing public employees to subsidize the speech of a third-party union to speak and contract with government over work conditions, pay, and benefits infringes on public employees’ First Amendment rights of free speech.
Currently, over 20 states allow unions to collect forced union dues from teachers, bus drivers, and other public employees.
If the Supreme Court decides to hear the case and rules in favor of the plaintiffs, it would free millions of public servants from compulsory dues payments. A nearly identical lawsuit over the constitutionality of forced union dues was heard by the Court in 2016, but the untimely death of Justice Antonin Scalia led to a 4-4 split. The justices may want to take another shot at the issue with a full court.
In the recent past, justices have criticized the logic behind forced union dues precedent. Justice Samuel Alito called Abood, the 1977 Supreme Court case that set the precedent allowing agency fees, “something of an anomaly,” and went on to say: “Agency-fee provisions unquestionably impose a heavy burden on the First Amendment interests of objecting employees.” It is a “bedrock principle that, except perhaps in the rarest of circumstances, no person in this country may be compelled to subsidize speech by a third party that he or she does not wish to support.”
This is made clear in how government unions spend agency fees. Although there are restrictions on how forced union dues may be spent, labor unions have found loopholes to this limitation that have allowed them to spend considerable sums on politics.
In an amicus brief to the Supreme Court in support of Janus, the Competitive Enterprise Institute highlights that unions often use forced union dues to pay for union conferences and conventions, where many activities are political in nature. Political advocacy at these conferences has included “speech promoting severe gun control laws, pro-Hillary Clinton rallies, a ‘direct action’ protest march against a Trump hotel, and even advocacy for the United States to adopt the metric system and for public funding for Planned Parenthood.”
More importantly, collective bargaining in the public sector is inherently political. Forced union dues fund this activity. Most items bargained over in the public sector, such as class sizes, teacher tenure, and pension funding, involve political choices that should be up to duly elected officials to decide. While it is debatable whether unions have a place in government (progressive stalwart Franklin Delano Roosevelt certainly didn’t think so), public employees should not be forced to pay for a union to take bargaining positions they may not agree with.
Ultimately, the lawsuit is about worker freedom. Research shows most unionized workers, in both the public and private sectors, never got a chance to vote on the union that represents them. Workers simply inherit union representation that was voted on by past workers, and are forced to pay for it without any choice in the matter.
Labor unions are well aware that collecting dues becomes much tougher when workers have a choice. As the New York Post reports, the United Federation of Teachers is in the midst of devising a plan to slash its $182 million budget because if forced union dues stop “membership and dues revenues would likely plummet by 20 percent to 30 percent, labor sources said.”
The Supreme Court is expected to announce its decision on whether it will take up the case on September 28. Hopefully, this time next year, public employees will be free to financially assist labor unions because they value their service, not because they are forced to do so.
Trey Kovacs is a policy analyst with the Competitive Enterprise Institute, a public policy non-profit group in Washington, D.C.
Editor's Note: This piece was originally published by the Competitive Enterprise Institute.