Supreme Court Strikes A Blow Against Public Sector Unions
In a 5-4 decision, the Supreme Court has ruled that public sector unions cannot force employees to pay membership fees.
In a much-anticipated decision, the Supreme Court has struck down a forty-year-old precedent, ruling that mandatory membership fees for public employee unions are unconstitutional:
Conservatives on the Supreme Court said Wednesday that it was unconstitutional to allow public employee unions to require collective bargaining fees from workers who choose not to join the union, a major blow for the U.S. labor movement.
The court in a 5-to-4 decision overturned a 40-year-old precedent and said that compelling such fees was a violation of workers’ free speech rights. The rule could force the workers to give financial support to public policy positions they oppose, the court said.
“States and public-sector unions may no longer extract agency fees from nonconsenting employees,” Justice Samuel A. Alito Jr. wrote for the majority. “This procedure violates the First Amendment and cannot continue.”
He was joined by Chief Justice John G. Roberts Jr. and Justices Anthony M. Kennedy, Clarence Thomas and Neil M. Gorsuch.
Justice Elena Kagan wrote for the dissenting liberals:
“There is no sugarcoating today’s opinion. The majority overthrows a decision entrenched in this Nation’s law—and in its economic life—for over 40 years. As a result, it prevents the American people, acting through their state and local officials, from making important choices about workplace governance.”
It was a devastating, if not unexpected, loss for public employee unions, the most vital component of organized labor and a major player in Democratic Party politics. It capped a years-long effort by conservative legal activists to forbid states from authorizing the fees.
Alito was unmoved by claims that the decision would be a crippling blow to the unions’ finances.
“It is hard to estimate how many billions of dollars have been taken from nonmembers and transferred to public-sector unions in violation of the First Amendment,” Alito wrote. “Those unconstitutional exactions cannot be allowed to continue indefinitely.”
Kagan delivered part of her dissent from the bench, a fairly rare move for her. She and Alito sit next to each other on the bench, and she began just after he finished his summary of the decision
Kagan broadly criticized the majority, which she said had overstepped its role by intervening in a political debate and “weaponizing” the First Amendment.
And “not for the first time,” she added, referring to the court’s 5-4 decision the previous day striking down a California law that required antiabortion pregnancy crisis centers to tell patients about the availability of state-offered services, including abortion.
“The majority’s road runs long. And at every stop are black-robed rulers overriding citizens’ choices,” she said. “The First Amendment was meant for better things. It was meant not to undermine but to protect democratic governance — including over the role of public-sector unions.”
The mention of “black-robed rulers” was borrowed from Scalia.
This ruling ends what has been something of a long quest by conservative Judges and legal scholars to move against a precedent established by the 1977 case Abood v. Detroit Board of Education. In that case, the Court essentially legalized the “closed shop” for public sector employees, meaning that an employee for a local, state, or Federal agency or department could be required to join a union and pay dues as a condition of employment. For years, critics of forced unionization sought to overturn Abood, but it has only been with the rise of the current largely conservative Supreme Court that they have been successful in their efforts. With this decision, they have succeeded in those efforts, and it seems likely that this case will have repercussions at the State and Federal levels for unionized employees and for the politically powerful unions that represent them such as AFSCME and the SEIU.
While there were several minor cases along the way, the legal moves really began with the Court’s 2014 decision in a case out of Illinois. In that case, Harris v. Quinn, the court dealt with an Illinois law that required mandatory unionization of home healthcare workers who participated in the state’s Medicaid system. In it’s ruling four years ago, the Court invalidated the rule but did not go as far as many observers thought they would and attack the precedent established by Abood itself. The next challenge came about a year later in a case titled Friedrichs v. California Teacher’s Association, which the Court accepted for review at the end of its October 2014 Term. When the Court heard the case in January 2016, it appeared that there was at least a 5-4 majority ready to essentially overturn Abood and rule the collection of mandatory union dues unconstitutional. Within a month after that decision, though, Justice Antonin Scalia died and the Court was left with a split that ended in a 4-4 ruling that allowed the Ninth Circuit Court of Appeals decision upholding the fees to stand but left both sides of the debate somewhat disappointed at the lack of a final resolution of the matter. Once the Court was back to a full complement of nine Justices and the conservative wing was back to full strength, it was readily apparent that any future case dealing with the issues raised by Abood would most likely lead to it being overruled, striking a blow against public sector unions most likely significantly weakening their political power and influence. That moment came last September when the Justices agreed to hear this case.
This morning the Supreme Court announced that government employees who are represented by a union but do not belong to that union cannot be required to pay a fee to cover the union’s costs to negotiate a contract that applies to all employees. The 5-4 decision overturned an earlier ruling, dating back to 1977, that allowed the unions to charge such fees, which are often known as “fair share” or “agency” fees. Opponents of the fees hailed today’s ruling as a major victory for the First Amendment, while Justice Elena Kagan, who wrote the main dissent in the case, warned that the ruling could disrupt “thousands of ongoing contracts involving millions of employees.”
In an opinion by Justice Samuel Alito, the court concluded today that the fees violate the First Amendment. No one would doubt, Alito wrote, that the First Amendment bars a state from requiring its residents to “sign a document expressing support for a particular set of positions on controversial public issues.” Requiring someone to pay for speech by someone else also raises First Amendment concerns, Alito noted. And whether the constitutionality of agency fees is reviewed using the most stringent test (known as “strict scrutiny”) or a more permissive test, Alito concluded, the union fees are unconstitutional.
In Abood v. Detroit Board of Education, the 1977 decision upholding agency fees, Alito explained, the Supreme Court pointed to the state’s interest in “labor peace” and in avoiding the problem of “free riders” – people who reap the benefits of union representation without paying for them. But any worries about “conflict and disruption” in the absence of union fees have been proven wrong in the 41 years since Abood, Alito suggested. Nor is the possibility of a “free rider” problem enough to justify the fees, Alito continued: “Many private groups speak out with the objective of obtaining government action that will have the effect of benefitting nonmembers. May all those who are thought to benefit from such efforts be compelled to subsidize this speech?” He concluded: “In simple terms, the First Amendment does not permit the government to compel a person to pay for another party’s speech just because the government thinks that the speech furthers the interests of the person who does not want to pay.”
Having concluded that the fees violate the First Amendment, Alito turned to the next question: Whether the court should overrule the Abood decision, given the general presumption against overruling older decisions “unless there are strong grounds for doing so” – a legal doctrine known as stare decisis. The majority answered this question in the affirmative.
Alito pointed to several factors that led the majority to conclude that Abood should indeed be overruled. First, he asserted, the Abood decision was “poorly reasoned, because, among other things, it relied on cases involving a “very different First Amendment question” than the one before it. Second, the ruling has proven “unworkable,” because (as even the unions themselves conceded in this case) it is so hard to distinguish between the expenses that nonmembers can be required to shoulder and those that they cannot. Third, the court decided Abood in a very different legal and economic environment; since the ruling 41 years ago, public spending – including the “mounting costs of public-employee wages, benefits, and pensions” – has skyrocketed, giving collective bargaining a political significance that it might not have had at the time of the Abood ruling. And the prospect that the unions and public employers may have relied on the constitutionality of the agency fees (for example, in negotiating the collective bargaining agreements now in effect), in Alito’s view, is not a reason to keep Abood. Those contracts will only last a few more years anyway, Alito stressed, and in any event the unions and public employers have known for several years that the Abood ruling could be in jeopardy.
As I noted in both my preview post on this case and in my post in the wake of the oral argument in the Friedrichs case, regardless of how one feels about the merits of unions in general, the First Amendment issues raised by laws such as the one at issue in these types of cases are fairly and seem to call for only one conclusion. In both cases, the Plaintiffs are regular union members who simply happen to disagree with the idea that at least some portion of the dues they are compelled by law to pay in order to work are being used to advance causes and candidates that they disagree with. This is a called compelled speech, and it is a clear violation of the First Amendment due to the fact that the government is making membership in the union a mandatory condition of employment. Were this a private-sector job with a company that happened to have a closed-shop agreement with a union, there would be no First Amendment argument since employers are generally free to enter into such agreement and, within certain guidelines, set standards for employment including the requirement that an employee be a union member. As I’ve said before, it’s fairly well-settled law, that people cannot be forced to subsidize speech they disagree with, and as the court’s conservative Justices noted in their questioning, the argument that there can be a distinction between public advocacy and contract negotiation in a public employee context simply doesn’t make any sense. Given this, a public employee who is compelled to pay union dues as a condition of employment is being compelled to subsidize speech whether they want to or not. This would seem to be a clear violation of the First Amendment.
Public employee unions have long been dreading the outcome of this case, and it’s easy to see why. With this ruling, millions of government employees at the Federal, state, and local level will now be free to opt-out of the payment of union dues that had heretofore been mandatory. No doubt many of them will make the decision to do so purely out of economic reasons since it will mean more money in their pocket at very little cost to them since they will continue to benefit from the union’s collective bargaining activities. Doing so, however, will also deprive unions of a significant source of income, which will in turn likely result in a reduction in their political power and influence on politics at all levels. To be sure, this won’t mean that government workers will not be required to pay any fees to a union that they benefit from, but it will reduce the amount that they will have to pay, and will have a real impact on the ability of these unions to influence political outcomes in ways that benefit them:
The court’s decision will weaken but not destroy government unions. One study estimates that the state and local public sector union membership rate in collective bargaining states, 53.7 percent, will fall by 8.2 percentage points. The experience of states that have recently passed right-to-work laws suggests that some public unions may lose 10 percent to 30 percent of their memberships. Such declines imply losses of tens of millions of dollars in dues money. State and local government unions will come to resemble unions in the federal government, where agency fees are prohibited.
Major organizing efforts to stave off membership losses have been underway since 2014. Across the country, unions have been surveying their members to find out their priorities and asking employees to sign new union cards. Even with reduced memberships, public unions will remain potent forces in many states.
Nonetheless, taking public unions down a peg has another important effect: It will rebalance the playing field in states where the power of unions make it impossible for governments to address the rising costs of pensions and retiree health care, which are crowding out other spending. Oregon, for example, has $25 billion in unfunded pension liabilities, but the public employees’ union has adamantly opposed increasing members’ contributions.
In principle and in practice, the court’s ruling is a good one. It protects public workers’ constitutional rights and will improve the fiscal health of state and local governments. And public unions can go on politicking — just with the money of workers who actually want to be their members.
As an aside, it’s worth noting that the outcome here has no impact on private-sector unions. Since the jobs involved in those cases are not government jobs, the First Amendment typically would not apply. There may be some exceptions, of course, in cases where there are laws requiring that people who choose not to be members of private-sector unions to nonetheless still be pay dues to that union, but that issue was not before the Court in this case and would have to be the subject of future litigation.
Beyond the legal issues, there are also legitimate questions about the entire idea of public employee unions that have been raised in the past, not only by conservatives but also by President Franklin D. Roosevelt himself:
Roosevelt’s reign certainly was the bright dawn of modern unionism. The legal and administrative paths that led to 35% of the nation’s workforce eventually unionizing by a mid-1950s peak were laid by Roosevelt.
But only for the private sector. Roosevelt openly opposed bargaining rights for government unions.
“The process of collective bargaining, as usually understood, cannot be transplanted into the public service,” Roosevelt wrote in 1937 to the National Federation of Federal Employees. Yes, public workers may demand fair treatment, wrote Roosevelt. But, he wrote, “I want to emphasize my conviction that militant tactics have no place” in the public sector. “A strike of public employees manifests nothing less than an intent on their part to prevent or obstruct the operations of Government.”
And if you’re the kind of guy who capitalizes “government,” woe betide such obstructionists.
Roosevelt wasn’t alone. It was orthodoxy among Democrats through the ’50s that unions didn’t belong in government work. Things began changing when, in 1959, Wisconsin’s then-Gov. Gaylord Nelson signed collective bargaining into law for state workers. Other states followed, and gradually, municipal workers and teachers were unionized, too.
These are policy matters beyond the purview of the Court, of course, but they go to the reason why the outcome in this case is so important. Public employee unions are a powerful force, and not necessarily a beneficial one for either their members or for taxpayers. To the extent that their power can be restrained, perhaps we will all benefit.
Here’s the decision: