Waking Unions Up: Why No One Lost in Janus
In a landmark decision this past June, the High Court deemed long-standing “agency fees” unconstitutional in recognition of the forced speech that such fees mandated. The case, titled Janus v. AFSCME, overturns 41 years of precedent established in Abood v. Detroit Board of Education, which held the exact opposite ruling in favor of agency fees. Justice Alito wrote in the Court’s Opinion, “We upheld a similar law in [Abood] and we recognize the importance of following precedent unless there are strong reasons for not doing so. But there are very strong reasons in this case. Fundamental free speech rights are at stake.”
*The irony of this situation cannot be understated. It was, after all, the hated Citizens United v. FEC, 58 U.S. 310 (2010) that allowed Unions, corporations, and other entities to donate to individuals, campaigns, and parties.
The issue with this particular fee arises when those same public sector unions donate to political campaigns* regardless of the political views or wishes of their non-members. Free Speech advocates claim that both their Freedom of Association and their Freedom of Speech are being abridged. By forcing the individual to pay Agency Fees, the government is forcing monetary participation in an association, and by allowing unions to make political contributions (even if it is technically with “different” money), they are allowing those hostaged funds to speak for the bound-and-gagged non-union member.
In defense of these agency fees, public sector unions propose the necessity (not quite the prestigious rank of a Right) to uphold “labour welfare” and, as quoted from the Georgetown Undergraduate Law Review’s Abood To Janus: A Transition From Empowerment To Incapacitation,
“The Supreme Court while adjudicating Abood recognized the inherent worth of both these [first amendment rights and “labour welfare”] interests...By refusing to deprive recognized unions of funding while ensuring that workers’ contributions do not subsidize specific political initiatives or beliefs, the Supreme Court’s position accommodated both workers’ employment-related interests and free speech.”
This grand compromise may seem just, even Solomon-esque, but it naïvely overlooks the intentionally specific role of the Supreme Court: While immensely powerful, the nine Justices are bound by strict rules, and must remain so. These rules The US Constitution) demand they merely interpret the law, not please both sides.
The critical flaw of Abood to Janus, however, can be found only three paragraphs later: “the facts of Janus pit first amendment rights against an equally important competing interest: the protection of collective bargaining power”. The difference between our Freedom of Speech and the government's interest in advancing workers’ power are in entirely different leagues. There’s no equality here.
The crux of the entire issue lies in the ever-useful phrase: “You’re not special”. Unions cannot be considered a separate and superior class of organizations from corporations, non-profits, book clubs, or cults. All must enjoy “equal protections”.
With this in mind, I am not a rabid anti-unionist. I simply believe that, for the maintenance of a properly adjusted market and, believe it or not, for the union’s own self-interest, the government cannot be managing a union’s finances.
It is unfortunate but true that Union’s may suffer financially in the immediate wake of this decision. This may even translate to a weakened position for workers. However, it is important to remember that these unions are not facing discrimination or persecution, they are simply stepping down from an artificial and unjust boost in revenue.
To properly analyze the flawed Abood decision, consider an analogy: The National Rifle Association, which contributes around $1 Million to political PACs and individuals, Democrats and Republicans, claims to fight for every American’s right to bear arms. This organization believes itself to benefit every citizen who wishes to bear arms (and those who do not). For those on less comfortable with the NRA, consider that the ACLU defends immigrants, legal and illegal, political agitators from Neo-Nazis to Hippies and Communists, and many other rights issues. Neither organization has ever demanded agency or similar fees, and it would be absurd for them to do so.
So, while believers in the First Amendment should celebrate their victory and newly won rights, union advocates and workers do not necessarily have much to fear for the future of collective bargaining. Unemployment is at local lows and economic growth is on the uptick again, putting workers skilled and unskilled back in demand. Of course, like any historical pivot, its effects are yet to be felt, so either side could yet be vindicated or refuted in the coming years, but to quote one of Labor’s fiercest advocates, “History will absolve me!”