Springtime for Union Busting?

By Ian Millhiser

June 28, 2017

Late June has become a time of terror for anyone on the left. These early days of summer are traditionally the last of the Supreme Court’s term, and at a time when the Court is dominated by Republican appointees, Democrats, liberals, and leftists alike often spend the last week of June dreading what the Court is about to do to health care, workers, and the rights of women or racial minorities.

This June, however, was different. With the Court down a justice for most of the last year, its members avoided most politically charged cases that were likely to produce a 4-4 split. Compared to past terms, the last year at the Supreme Court was relatively boring. The term’s biggest decisions—an erosion of the separation of church and state and a lamentable decision to temporarily reinstate parts of Trump’s Muslim ban—both were decided after Republicans placed someone in the Court’s final seat.

Remember how good this boredom feels, because it won’t last. With Neil Gorsuch now occupying the seat that Republicans held open more than a year until Donald Trump could fill it, the next term will not be boring at all. And the Court’s Republican majority has a familiar target in its sights: the American worker

Last year, many of America’s unions had a near-death experience.

In January of 2016, the Supreme Court heard oral arguments in Friedrichs v. California Teachers Association, a case that sought to starve public sector unions of the money they need to operate. The arguments before the justices seemed to herald an impending disaster for the unions, with Anthony Kennedy—the closest thing to a swing vote—appearing visibly angered by some of the pro-union arguments presented to the Court. After the arguments phase, there was little doubt that organized labor would lose in a 5-4 decision that threatened many unions’ ability to operate.

Then Antonin Scalia died.

Without Scalia to cast the fifth vote against labor, the justices split 4-4 in Friedrichs and the threat to unions seemed to have passed.

Now, however, Gorsuch occupies Scalia’s old seat. And Gorsuch is, if anything, well to Scalia’s right. The Supreme Court’s war on unions, in other words, will now resume. And there’s already a case in the works that will allow the Court’s Republican majority to pick up where it left off in early 2016.

Earlier this month, lawyers led by the anti-union National Right to Work Legal Defense Foundation asked the Court to hear Janus v. AFSCME, a case that is nearly identical to Friedrichs. Both challenge what are sometimes called “agency fees” or “fair share fees.” And Janus, like Friedrichs, is an existential threat to many public sector unions.

By law, unions must bargain on behalf of every worker within a bargaining unit, regardless of whether each individual worker joins the union. That creates a free-rider problem, because each individual worker gets to keep the higher wages and increased benefits that normally accompany unionization without having to pay membership dues.

Collective bargaining, moreover, is an expensive process that can require a team of lawyers and financial experts. Hiring good negotiators costs money. If too many workers refuse to pay union dues, unions can find themselves without enough funds to operate.

To solve this free-rider problem, union contracts often contain a provision requiring non-union members to reimburse the unions for their fair share of the costs of collective bargaining. These are called “agency fees.” That means that just as everyone gets to share the benefits of unionization, everyone also pays their share of the costs.

Many state legislatures, in an effort to weaken unions, ban these agency fees—that’s what so-called “right-to-work” laws do. As the Economic Policy Institute’s Elise Gould and Will Kimball explain, such a law is “associated with $1,558 lower annual wages for a typical full-time, full-year worker.”

Janus asks the Supreme Court to impose a right-to-work regime on all public sector unions. And with Gorsuch now occupying a seat on the Court, it is overwhelmingly likely that the Court will side with the anti-union attorneys behind Janus.

Should these lawyers prevail, the effects will be threefold.

First, wages and salaries will decline. According to Gould and Kimball, wages in right-to-work states “are 3.1 percent lower than those in non-RTW states.” State and federal workers who currently aren’t bound by a right-to-work law can expect to see similar downward pressure on their own earnings.

Second, Republicans will gain ground on Democrats. Unions provide much of the Democratic Party’s political infrastructure, including thousands of volunteers. Though agency fees cannot lawfully be spent on political activity, Janus is likely to starve many unions for cash and could cause some unions to fail entirely. That places the party of Neil Gorsuch in a much stronger position each election year.

Finally, even when Democrats do perform well at the polls, the Democrats elected in a post-Janus world are likely to act much more like Republicans. Because organized labor plays such a crucial role in the Democratic coalition, Democratic politicians take anti-labor positions at their own peril. As labor’s role diminishes, those politicians will have less to fear from labor—and more to fear from the big donors unleashed by decisions like Citizens United.

By lashing out at unions, in other words, the Supreme Court can help ensure that its future members look more like Gorsuch and less like the blocked Barack Obama nominee, Merrick Garland.

A majority of the Court, moreover, is likely to rule against public sector unions in Janus, despite the fact that the plaintiff’s arguments in this case are weak.

In essence, the lawyers behind Janus argue that agency fees violate the First Amendment because they compel non-members of a union “to subsidize the speech of a third party…that they may not wish to support.” When unions bargain, they must engage in speech to do so. And a non-union member might disagree with that speech. So that, according to the lawyers behind Janus, is unconstitutional forced speech.

It is true that, as a general matter, the government cannot compel someone to speak. But different rules apply to government workers, and for good reason. If the state hires me to teach algebra, the First Amendment doesn’t let me keep my job if I decide instead to teach my students about Japanese art, or to teach them nothing at all. As Justice Kennedy explained in Garcetti v. Ceballos, “government employers, like private employers, need a significant degree of control over their employees’ words and actions; without it, there would be little chance for the efficient provision of public services.”

Moreover, if the Supreme Court holds that bargaining between an employer and its employees is a First Amendment–protected activity, that could have absurd results. Consider a hypothetical that Justice Scalia offered in an earlier case involving agency fees.

Suppose you have a policeman who is dissatisfied with his wages. So he makes an appointment with the police commissioner, and he goes in and grouses about his wages. He does this, you know, 10 or 11 times. And the commissioner finally is fed up and tells his secretary, I don’t want to see this man again. Has he violated the Constitution?

It would be difficult, to say the least, to run a workplace if managers cannot discipline a government employee who harasses their supervisors with frivolous requests. The First Amendment has never been understood to impede workplace management in this way.

Janus, in other words, asks the Supreme Court to embrace a novel and dubious reading of the First Amendment. And it does so in service of a cause that will harm workers and greatly benefit the GOP. And there is little doubt as to how the five Republicans on the Supreme Court will vote.