With ruling, workers have new rights but union allies looking to keep the money flowing

The U.S. Supreme Court often waits until the final week of the term to release its most anticipated rulings. So it was this year, with the court putting out its decision in the much-watched Janus v. AFSCME labor case last week.

The court ruled that government employees have a 1st Amendment right to opt out of union participation entirely. They can’t be required to pay “representation fees,” and governments cannot make paying dues or fees a condition of employment.

With this ruling, the court majority acknowledged that the previous precedent, 1977’s Abood decision, is basically unworkable. That court tried to find a middle position between government workers’ 1st Amendment rights and the “free rider” problem of some workers benefitting from a union’s collective bargaining work without paying anything toward it.

As a workaround, the 1977 court instituted a system where workers were required to pay fees for a union’s collective bargaining work but could opt out of membership and from contributing to a union’s political activities.

Ruling concedes distinction isn’t so clear
This compromise assumed there’s some sort of bright line between collective bargaining and politics. It also assumed it was easy to know how much of a union’s money and efforts went toward each category.

In reality, it was common practice for unions to overvalue the collective bargaining work – keeping “fair share” fees for dissident workers high – and underestimate the political functions.

Plaintiff Mark Janus successfully argued that everything his union in Illinois does is essentially political. Janus is philosophically opposed to the deals his union strikes with state government, believing them to be unfair to taxpayers and unsustainable in the long run.

His argument exposed that the “politics over here, collective bargaining over there” distinction isn’t a real one. “Politics” is more than supporting candidates and initiatives. When your organization exists primarily to convince government to hire more public employees and pay each public employee more – and raise taxes to support that level of spending – even those collective bargaining activities are political through-and-through.

Shouldn’t government employees have a 1st Amendment right to opt out of a union that they oppose in every way? With this new ruling, they do.

Trying to get around it
Since this decision will apply to all public employees around the country, it will be interesting to watch if officials in our state accept the new rights of workers or try to effectively block outreach to them in a way that makes government less accountable. I’ll also be keeping an eye on union dues levels – will any unions lower them in a bid to hang on to more members?

One concern: State governments will move to just pay unions directly for their collective bargaining work. One New York lawmaker “plans to introduce legislation that would allow unions to include collective-bargaining costs in their contracts with government agencies to replace the mandatory fees banned under last month’s Janus v. ­AFSCME ruling.”

This, of course, is nothing but a way to keep union coffers full even if they’re losing members. It would also set up a situation where government is paying what is supposed to be a kind of adversary to bargain against it.

Bad idea? Yeah – but unions and their friendly politicians are looking at all options to keep the money flowing.
-Rob McKenna

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Rob McKenna
Rob served two terms as Washington’s Attorney General, from 2005 to 2013. He successfully argued three cases before the U.S. Supreme Court and negotiated three of the largest consumer financial protection settlements in national history, all involving mortgage lending and servicing. He is a recognized leader in the development of consumer protections on the internet, in data protection and privacy regulation.