This Supreme Court Case Is The Biggest Threat To Organized Labor In Years

Mark Janus doesn’t want to pay fees to the labor union that represents him. If the Supreme Court gives him the chance to opt out, the Illinois state employee will gladly take the justices up on their offer.

So, too, could millions of other public sector workers across the country, which would be a huge blow to the U.S. labor movement and, by extension, the Democratic Party.

Janus, a child support specialist at the Illinois Department of Healthcare and Family Services, is at the center of what could be the most consequential labor case the court has heard in years. He works under a contract negotiated between the state and the American Federation of State, County and Municipal Employees, a union he wants nothing to do with. But AFSCME has to advocate for Janus whether he wants it to or not, because the law requires a union to represent everyone in a bargaining unit equally.

The contract stipulates that each worker in Janus’ unit must chip in to cover the costs associated with collective bargaining ― commonly called “fair-share” or “agency” fees. No one can be forced to be a full-fledged member of a union or to help pay for its political activities. But in Illinois and many other states, workers like Janus can be required to pay these mandatory fees if a union represents them.

After Illinois Gov. Bruce Rauner (R) tried to challenge the state’s law allowing fair-share fees, Janus joined the lawsuit as an injured party. The Supreme Court will hear his case, Janus v. American Federation of State, County, and Municipal Employees, Council 31, on Feb. 26.

Although fair share fees have been upheld as legal for decades, the high court’s conservative majority is likely to strike them down as unconstitutional. If the court rules against AFSCME, the entire U.S. public sector would essentially be a “right-to-work” zone ― meaning employees could no longer be required to pay anything to the unions that bargain on their behalf. There are already 28 “right-to-work” states; the Janus case would affect the other 22 states, which have an estimated 5 million public sector workers.

A ruling in Janus’ favor would squeeze a critical revenue stream for organized labor at a time when overall union membership rates are already hovering near historic lows.

“I think for some unions it will be existential, in the sense that they haven’t prepared for it and don’t have the solidarity to survive it,” said Paul Secunda, a labor law professor at Marquette University Law School. “The unions that are run well and have dedicated members will come out okay, and those that are just relying upon the mandatory fees will not.” 

Conservative groups have planned for this moment for years. Their chance nearly came in 2016, after the Supreme Court took up a similar case involving a group of public school teachers in California who were paying agency fees to their union. The death of Justice Antonin Scalia led to a deadlock on the court and a reprieve for labor. But the confirmation of President Donald Trump’s Supreme Court nominee, Neil Gorsuch ― after the stonewalling of President Barack Obama’s nominee, Merrick Garland ― gave union opponents the conservative majority they needed for another shot.

Janus declined an interview request with HuffPost through his lawyer, Jacob Huebert, of the Liberty Justice Center, an Illinois legal group with libertarian leanings. According to Huebert, Janus doesn’t support AFSCME partly because he believes the union is trying to secure too much pay and benefits for workers like himself, at too great a cost to Illinois.

“I can’t speak for his political views,” Huebert said. “But I do know he objects to the positions AFSCME has taken in bargaining, in part because he thinks AFSCME demands would impose an unreasonable financial burden on the state, at a time when the state already can’t pay bills.”

“I’m definitely not anti-union. Unions have their place and many people like them. … I was never given a choice,” Janus told the Washington Free Beacon in October. “I really didn’t see that I was getting any benefit [from union membership]. I just don’t think I should be forced to pay a group for an association I don’t agree with.” 

The Supreme Court upheld the legality of fair share fees in the landmark 1977 public sector union case Abood v. Detroit Board of Education. The court reasoned that since all workers in a bargaining unit benefit from union representation, then a contract can require all the workers to pony up for it. Such an arrangement, the court decided, would promote labor peace. What workers don’t have to pay for is the union’s political expenditures ― campaign donations, election canvassing and the like. That’s why workers can opt to pay only the fair share fees, which are normal dues minus the portion that would go to politics.

But the conservative groups that have funded the lawsuit and filed briefs in support of Janus argue that workers should not have to pay any fees at all on First Amendment grounds. Drawing a distinction between private-sector and public-sector unionism, they claim that collective bargaining for government workers is inherently political, as what the union bargains for ― salaries and benefits for their members ― impacts state budgets and the use of taxpayer dollars. Therefore, the reasoning goes, being required to pay fair share fees amounts to compelled speech.

If the court accepts that argument, it could be harder for public sector unions to survive.

There are plenty of reasons a worker might want to opt out of supporting a union that represents them. Maybe they don’t like the union’s politics. Maybe they think the union’s leadership is lousy. Maybe the union got them a weak contract. But there will be workers who know they benefit from the union but choose to opt out anyway, for the simple reason that it’s in their economic self-interest to do so. After all, the union will have to continue representing them whether they pay fees or not.

Unions call this the “free-rider” conundrum.

“It’s a collective action problem,” explained Martin Malin, a labor law expert at the Chicago-Kent College of Law. “It’s a rational decision ― even for someone who wants to be represented in collective bargaining ― to not become a member, because their dues wont make any [noticeable] difference, and the benefits of collective bargaining are collective goods.”

In other words, the real problem for unions is not workers like Mark Janus, whose personal aversion to AFSCME was strong enough to sustain a yearslong lawsuit. Unions could lose the much greater number of workers who are simply indifferent toward their union and suddenly have the chance to bow out.

Part of the problem for unions is that many of them have had a relatively easy road unionizing workers in the public sector. Local governments, particularly in labor-friendly strongholds like the Northeast, can be far less hostile to collective bargaining than private employers, who often spend large sums of money on union-busting consultants. So a lot of public employee unions haven’t had to continuously fight and organize the way, say, a union of meatpacking workers would have to in the South.

“When you organize so easily, you don’t really build a union. You’re not used to fighting the employer,” said Kate Bronfenbrenner, the director of labor research at Cornell University School of Industrial and Labor Relations. “Now they are going to have to fight the employer. Now they are going to have to fight for every single member. And that’s like private-sector organizing. Their organizers are going to have to be trained. If they don’t do it, they are going to have a lot less money.”

For all the problems Janus’ case presents unions, a ruling against them could force them to be better at what they do. On that, both sides agree: If workers can stop paying fair-share fees, unions will have no choice but to prove their value to those workers. Inattentive and undemocratic unions could no longer afford to coast. The mere specter of Janus ― and the Friedrichs case before it ― has already compelled unions to reflect on their missions in a way many hadn’t before.

The largest public sector unions have undertaken “internal organizing” campaigns to prepare for the case, trying to make committed union members out of the workers they already represent. The hope is that engaging with these workers now will make them much more likely to support the union when they no longer have to.

“Would it have been better if people had taken the issues ― and I hold myself responsible, too ― of member engagement and community involvement as seriously 15 years ago as we are taking it right now? Yeah, of course,” said Randi Weingarten, president of the 1.7 million-member American Federation of Teachers, a prime target of the Janus case. But “people are pretty transformed by the experience right now.”

Peter MacKinnon, president of the Services Employees International Union Local 509, in Massachusetts, said his union has tried to touch base with every one of its 8,300 public sector members and have them sign “recommitment” cards to the union. So far, they have rounded up roughly 5,000 signatures. In many cases, the conversation has been as simple as asking a member what the union means to them and what it could be doing better.

“It’s a shift that’s been really, really helpful,” said MacKinnon, a social worker. “There’s been some skepticism with members: Wait, you’re actually asking me what I care about? Because we hadn’t done that. And I think that’s the case with a lot of unions. But members are seeing now that this is their union.”

For all the solidarity it builds, the internal organizing comes at a cost. Whatever resources unions are pouring into maintaining their current membership rolls are resources not put into growing them. Much like the state-level attacks organized labor has been fending off ― the rollback of public-sector collective bargaining in Wisconsin, and the right-to-work battles around the country ― a loss in the Janus case will force unions to devote time and money to holding onto the status quo.

And the status quo isn’t so rosy. A mere 10.7 percent of U.S. workers belong to a union now, according to the Bureau of Labor Statistics. That’s roughly half the membership rate in 1983, the first year for which government data is available, and far below the rate in the 1950s, when roughly 1 in 3 workers were in a union. The particularly high rate of public sector union membership ― precisely what’s threatened by the Janus case ― has helped to prop up organized labor as a whole. The membership rate for government workers is a robust 34.4 percent, compared to just 6.5 percent in the private sector.

Driving those numbers down helps the Republican Party. Unions not only steer far more money to Democrats than to Republicans, they also provide a lot of the ground game for Democratic candidates, in the form of phone banking and get-out-the-vote operations. A new paper from the National Bureau of Economic Research suggests that right-to-work laws cost Democratic candidates dearly. Comparing presidential election results in adjacent counties across state lines, researchers found that the implementation of a right-to-work laws cuts Democrats’ share of the vote by 3.5 percentage points.

A weakened Democratic Party, in turn, puts unions in an even more precarious spot, as they have fewer defenders in Washington and in statehouses, making it easier for Republicans to pass laws that hurt labor. So as Janus looms, unions are rethinking not only what sort of candidates they need to support for office, but what exactly unions are supposed to be for their members.   

“I think there are things we can do to not only survive but thrive, but it’s going to require changing what we do as a movement,” said MacKinnon. “If we’re viewed as more than just a contract enforcement organization ― as an organization that stands for the values our members care about ― then that’s where the hope is.”