The Washington PostDemocracy Dies in Darkness

The Supreme Court is poised to deal a sharp blow to the labor movement

The Supreme Court in Washington at sunset. (J. Scott Applewhite/AP)

Central to Janus v. AFSCME, a case the Supreme Court is hearing Monday, is the question of whether government employees who are covered by a union contract — but who are not members of the union — should have to contribute to the union’s costs for contract negotiations.

More broadly, though, the court will eventually decide whether to strike a significant blow to one of the few areas of strength for the wobbly labor movement — and, even more broadly, to a centerpiece of Democratic Party power in the United States.

Mark Janus, an Illinois state employee, is suing AFSCME — the American Federation of State County and Municipal Employees — in opposition to contributing to the union. Illinois is one of two dozen states that allow unions to charge “agency fees,” and Janus argues that those contributions are a violation of his right to free speech because the union takes actions with which he disagrees. (Those fees can’t be used for political purposes, but his attorneys argue that the lobbying efforts of the union broadly are political acts.)

Over the past few decades, union membership nationally has fallen significantly. In the public sector, membership has increased slightly. Once the recession began a decade ago, there were more public-sector union members than there were in the private sector. That’s no longer the case; in recent years, the long-term trends have reversed.

In the public and private sectors, there are additional employees represented by the union who are not members of it. In 2017, about 1.6 million people were represented by unions without paying membership dues, 900,000 in the private sector and about 700,000 in the public sector.

Those graphics, though, misrepresent how important public-sector unions are to the labor movement. After all, union density is a central part of organizing efforts. If there’s only one union in an area in which workers earn higher salaries and have better benefits, that employer is at a disadvantage compared with employers that can pay less. In an area or an industry where a lot of employers are unionized, there’s less incentive for employers to block worker unions because employees might otherwise choose to work at a competitor where they can earn more.

In the private sector, union density has declined sharply, measured as a percentage of employees who are union members. There are some places (such as New York City) and some sectors (such as health care) where density remains high, but public-sector density is unusually strong.

A little less than 1 percent of private-sector employees work under union contracts without being members of unions, while 3.5 percent of public sector workers do.

For unions, those “free riders” (as they’re known disparagingly) are frustrating: They receive benefits of union membership without contributing. (Janus turns that around, calling the unions themselves the free riders because “they’re the ones getting away [with not] doing anything.”) In a number of states — heavily blue states — those employees pay agency fees to help offset the unions’ costs.

There’s a clear link between union density in a state and whether it allows agency fees.

The causation here is complicated: States with stronger unions are more likely to have union-friendly legislation because the unions can advocate those policies. But agency fees also help bolster the unions’ strength.

There are 767,000 employees in the agency-fee states who are covered by union contracts without paying union membership dues. Not all of those employees work in government, but many do. If the Supreme Court finds against AFSCME in the Janus decision, those employees would no longer need to contribute to the union. For the unions, the medium-term concern is about their ability to organize and fight for better contracts.

That the states outlined above are mostly blue is another area of complicated causation. Democratic Party strength means that stronger laws protecting unions and more union density tends to help Democratic politicians. The chain of dominoes Democrats fear is that the court rules against AFSCME and union power weakens, leading over the long term to fewer union members and, therefore, fewer members of the labor movement’s still-powerful political organizing systems.

How likely is it that AFSCME will lose? Quite. This is the second time the issue has come before the court. The last time, shortly after Justice Antonin Scalia’s death, the justices were split 4 to 4. The addition of Neil M. Gorsuch to the bench is unlikely to mean that AFSCME’s chances have improved.

Republicans, understandably, are not particularly disappointed by that possibility.