In 22 states, public workers can be required to pay fees toward the unions that represent them at the bargaining table — even if they don't want to have anything to do with the union.
A closely watched case at the Supreme Court could end that. We took it up on the show On Point Wednesday: People like Illinois government employee Mark Janus say that they shouldn’t have to pay a union to push for interests they might not share.
“He does believe he doesn’t benefit from the advocacy of that interest group,” said Janus’s attorney, William Messenger, who argued before the Supreme Court Monday in Washington. “And therefore he has a First Amendment right not to support it.”
Under current law, some states allow public unions to charge all the employees they represent, even those that aren't members of the union. Workers that don't want to join the union can decline to join up, and instead of paying dues, they can pay a so-called agency fee.
Agency fees go toward services like filing grievances and negotiating contracts, but money from people who abstain from membership doesn't go toward political activities.
But to Janus and his supporters, a carve out for politics isn't good enough. Everything a union does is political, and being forced to pay those agency fees — even if he’s not part of a union — is akin to making him subsidize speech he doesn’t agree with, he argues.
“He has the right to choose for any reason to say that, no, I don’t want to support this particular kind of speech — and it's not for the government to decide that yes, union speech is best for employees,” Messenger said.
The move to bar mandatory agency fees for public workers has also played out in state legislatures, and it could have sweeping effects on union membership. Teachers’ union membership plummeted in three states where they were banned in recent years, according to a study by the conservative American Enterprise Institute.
Union advocates worry that people will opt out of union fees, but still reap the rewards when the union negotiates higher wages or better conditions for them. In economics, it’s called the free rider problem: You can still get the benefit, even if you don't make the payment.
A lawyer for the union in the case told us the law is clear, and correct, and has plenty of precedent.
“There are a lot of things that people are required to pay, whether or not they agree with it,” said Judith Rivlin of AFSCME, or the American Federation of State, County and Municipal Employees.
Some examples include bar dues that lawyers are required to pay into the bar, or student fees.
Neither Messenger nor Rivlin would say how they thought the case would come down, but an opinion is expected in June. A similar case in 2016, Friedrichs v. California Teachers Association, ended up in a 4-4 split among the eight justices; there are usually nine justices, but one seat was vacant due to the death of Antonin Scalia and an unprecedented blockade by Senate Republicans of then-President Obama’s pick for the seat.
Now, Associate Justice Neil Gorsuch, an appointee of President Trump, could cast the deciding vote. He said nothing during oral arguments in Washington on Monday.
Some expect him to side with the four conservatives and strike down mandatory agency fees.
But, Rivlin said: “Unions are still going to be here. Unions are the most effective way for people to come together and make effective change for themselves.”