The plaintiff, Mark Janus, works for the state of Illinois, where government workers are unionized. No state can compel workers to join a union. But Illinois is one of 22 states that allow unions to charge nonmembers, like Janus, for the costs of collective bargaining and grievance procedures. Those are called “fair share fees” or “agency fees.” In the other 28 states, called “right to work” states, state law prohibits unions from charging nonmembers these sorts of fees.
Janus argued that Illinois violated his First Amendment rights by requiring him to pay the fees — compelling him to speak through the union. Unions defend these fees by arguing that nonunion members such as Janus still benefit from higher wages, generous benefits and job protections negotiated by the union on their behalf. In siding with Janus, the court effectively imposed a “right-to-work” rule on public-sector unions in the 22 states that haven’t yet had one.
Here are three takeaways from today’s decision.
In siding with Janus, the court reversed the 1977 decision Abood v. Detroit Board of Education that had upheld the constitutionality of agency fees. The court then, led by Chief Justice Warren Burger, reasoned that dissenting employees could find other ways to show dissatisfaction with their unions while paying fair-share fees. Further, the Burger court found workers’ free speech rights were outweighed by the government’s compelling interest in helping unions to prevent employees from “free-riding” — taking advantage of the benefits secured by unions without helping to pay for their work.
That 1977 precedent had been upheld at least five times over its 40-year history — until the Trump administration took the opposite position by siding with Janus. Usually the court is reluctant to overturn such settled precedent. Janus shows that reluctance has waned.
The Janus decision comes as part of a broader push by conservative donors, activists and business interests to weaken the U.S. labor movement. The intellectual foundation for the case and funding for the costly litigation came from donors seeking to limit unions’ ability to raise funds and add new members.
One conservative organization’s internal fundraising documents, obtained by the news outlet the Guardian, spelled out the logic by noting that right-to-work laws would deprive the political left of the staffing and resources that unions typically bring to Democrats’ campaigns, at both the national and state levels. Elsewhere, one of us has dubbed this strategy as a “political weapon”: changing laws to durably disadvantage one’s political opponents.
One way to think about the Janus ruling’s potential impact is to see what has happened after states adopted right-to-work laws that ban agency fees, in both the private and public sectors. When we looked at these cases from 1980 to 2016, we found that when states change the law, unions shift their efforts away from political mobilization and toward membership recruitment and retention. Public sector unions in particular take a big hit in membership and dues. For instance, after right-to-work laws passed in Michigan (2012) and Wisconsin (2015), outlawing agency fees, teacher union dues in these two states dropped between one-third and one-half.
With that drop in income, unions come under financial pressure. They make fewer campaign contributions and are less likely to conduct campaigns to get Democratic voters to the polls. Democratic vote share and turnout falls in presidential, gubernatorial and congressional elections. Republicans win a larger share of state legislative seats.
That depends on how unions respond. Unions could build on the momentum that teachers’ unions have in red states like Oklahoma and West Virginia — both right-to-work states — where members have used rallies, protests and wildcat strikes to pressure lawmakers into expanding education funding. Or unions could prod Democratic state legislatures to pass laws (like the one in Hawaii) that make up for unions’ lost funding from agency fee cuts or free them from having to represent workers who don’t pay dues — thus leaving those workers out of union benefits. And with the state as both the employer and the policymaker, such tactics could not be undercut by changes in hiring practices.
Or unions could campaign to convince nonmembers to join, actively working to persuade nontraditional members that they’re worth it and winning back their vibrancy and connections to rank-and-file members.
No matter what unions do next, the long-run fate of left-of-center politics in the U.S. depends on a strong labor movement. Left-leaning activists, donors and Democratic Party leaders may now feel some urgency about reinvesting in the U.S. labor movement.
James Feigenbaum is an assistant professor of economics at Boston University.
Alexander Hertel-Fernandez is an assistant professor of public affairs at Columbia University and the author of “Politics at Work” (2018, Oxford University Press).
Both are members of the Scholars Strategy Network.