Supreme Court Rules That Public Sector Agency Fees Are Unconstitutional

On the last opinion day of the 2017-2018 term, the Supreme Court issued a long-expected decision prohibiting public sector collective bargaining agreements from requiring employees who are not members of the union to pay agency fees. In a 5-4 decision written by Justice Alito, the Court overturned 41 year old precedent and ruled that requiring non-members to pay a fee to the union representing them violates the free speech rights of employees who disagree with the union’s positions. Janus v. AFSCME.

In 1977, the Supreme Court held that a union representing state and local government employees could require non-members to pay an “agency” fee  (a percentage of full union dues) to cover union expenditures attributable to the collective bargaining process, as opposed to activities related to political and ideological activities.  Abood v. Detroit Bd. of Education, 431 U.S. 209.  Mark Janus is an Illinois state employee who is represented by AFSCME, but did not want to join the union because he opposed many of the positions it took, including those in collective bargaining. The union required that Janus pay an agency fee equal to 78.06% of full union dues as a condition of his employment with the state of Illinois. Janus sued, alleging that the requirement that he pay an agency fee violated the First Amendment.

Writing for the Court majority, Justice Alito, joined by Chief Justice John Roberts and Justices Anthony Kennedy, Clarence Thomas and Neil Gorsuch, agreed with Janus’ argument.  “Compelling individuals to mouth support for views they find objectionable,” even if they are part of collective bargaining that benefits that employee, affronts a “cardinal constitutional command,” he wrote. “In most contexts, any such effort would be universally condemned.”

The Janus decision is expected to have a dramatic impact on public sector unions.  Some studies have predicted that state and local union membership will decline by 10% or more.  After Wisconsin enacted Act 10 (prohibiting compulsory union membership in for public employees) in 2011 and followed with a right to work law four years later, union membership declined by 38%.

Janus could also have a significant impact on the political front. In the 2016 election cycle, public sector unions spent $64.6 million on political activities, and 90% of that went to Democratic candidates. If a substantial number of public employees now elect not to pay union dues, this loss of revenue will likely limit the ability of these unions to contribute to political candidates and causes.

It is important to keep in mind that Janus affects only employees of state and local governments, not private sector employees. Unless an employee works in one of the 28 states with “right to work” laws, a employee can still be forced to pay union dues as a condition of employment.

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