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Public Unions Are About To Lose Forced Dues In Supreme Court; What Will They Do?

Forbes Online

Wednesday, November 1, 2017  |  Commentary  |  George Leef , Contributor

Unions, labor (55)
One of the biggest cases the Supreme Court will hear this year is Janus v. AFSCME. If those letters don’t ring a bell, it’s the American Federation of State, County, and Municipal Employees, the huge union for public workers.

Mark Janus is a child support specialist employed by the Illinois Department of Healthcare and Family Services. He has declined membership in the union, as is his constitutional right, but under the Illinois Public Labor Relations Act he’s still is required to pay the union an “agency fee” as a condition of keeping his job. That fee is supposed to cover his share of the union’s expenses outside of politics – 84 percent of the full member dues last year (by the union’s calculation).

His argument is that all public union spending is so entwined with politics that he should not be compelled to subsidize any of it.

Writing this commentary piece in the Chicago Tribune, Janus said, “To keep my job at the state, I have to pay monthly fees to the AFSCME, a public union that claims to ‘represent’ me. The union is not my voice. The union’s fight is not my fight.”

Janus believes that this compulsory arrangement violates his rights under the First Amendment. He is being forced to subsidize speech of others – AFSCME officials – and the First Amendment protects against the government making us speak just as much as it protects against the government censoring our speech.

In a complicated case that began with Illinois governor Bruce Rauner suing the union (details available here), the federal court that first heard the case as well as the Seventh Circuit Court of Appeals ruled against Janus. They did so because a 40 year-old Supreme Court precedent, Abood v. Detroit Board of Education, dictates that result.

Janus is represented by the National Right to Work Legal Defense Foundation, which fights on behalf of workers who have been wrongfully forced to join or support unions. The Foundation’s brief, argues that Abood should be overruled because it conflicts with the Court’s current First Amendment jurisprudence. Abood was severely criticized in the Court’s 2014 decision in Harris v. Quinn, giving six reasons why the analysis in that case was weak. The only reason why Abood wasn’t overruled then was that doing so was not necessary to decide the Harris case.

Following Harris, Court watchers were quite sure that it would overrule Abood and strike down compulsory dues for public union workers in Friedrichs v. California Teachers Association, which presents the same legal question as does Janus. But the sudden death of Justice Scalia left that case a 4-4 tie.

A year before Abood, the Court decided a similar case, Elrod v. Burns, which also involved public employees in Illinois, who were then required to support the Democratic Party or lose their jobs. In Elrod, the Court held that it was a violation of the First Amendment to compel workers to turn over money to a political party. As the NRTWLDF brief above observes, “There is little distinction between forcing Illinois public employees to directly support the Democratic Party and requiring them to support advocacy groups with agendas closely aligned with that political party.”

That’s right. If there is any distinction between having to support a political party and having to support a union that is a cog in a party’s operations, it is not one of constitutional significance.

With Justice Gorsuch, whose philosophy on free speech is presumed to put him in the “overrule Abood and protect the rights of public employees” camp, on the Court, it’s likely that Janus will win. The Court said in Harris that it’s 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.” That is exactly the situation Mark Janus wants to escape.

It will be a shock if the Court upholds the status quo and allows public unions to continue pocketing millions taken from the earnings of public employees who disagree with them. The upshot is that those unions will have to get their funds the way all other private organizations do – through voluntary payments.

Evidently, the unions expect to lose and will have to adjust to a world of worker choice. Writing in City Journal in June, Larry Sand, a retired teacher and president of the California Teachers Empowerment Network, noted, “The unions are planning for the worst-case scenario. California Teachers Association Executive Director Joe Nunez wrote in January that the CTA should be prepared for a 30 to 40 percent membership drop, but then hedged, saying he doesn’t believe the decline would be that dramatic.”

How much membership and the inflow of money declines will depend on how successful the unions are at persuading workers, which is a very different situation from persuading politicians to give them the privilege of taking the workers’ money.

Ah, but true to form, it appears that some unions will resort to trickery to keep as many members and as much money as possible. Kim Crockett revealed in this Wall Street Journal article that the Minnesota affiliate of the National Education Association is prepared to distribute membership renewal cards for current members, which includes an authorization to deduct full dues in fine print. It reads: “This authorization shall remain in effect and shall be automatically renewed from year to year, irrespective of my membership in the union, unless I revoke it by submitting written notice to both my employer and the local union during the seven-day period that begins on September 24 and ends on September 30.”

Thus, teachers who sign are stuck with paying for the union indefinitely, unless they submit the necessary withdrawal in that six-day window in September. That’s the kind of underhanded practice you expect from a fly-by-night business.

Crockett writes, “If unions are putting this ‘renewal’ strategy in place in Minnesota, it’s likely they are making similar plans elsewhere. Teachers confronted with these cards should read the fine print with the same focus they expect their students to have in class. If Mr. Janus wins, teachers will have to be taught that signing a union card doesn’t erase their constitutional right not to pay dues.”

We probably won’t know how the Court decides this momentous case until next June.