The current case before the Supreme Court, Janus v. American Federation of State, County and Municipal Employees (AFSCME), was filed by the plaintiff Mark Janus. Mark is a child support specialist working with the Illinois Department of Healthcare and family services. Janus, just like many other Americans, is not a member of the American Federation of State, County, or Municipal Employees, but he is required to pay ‘fair-share’ fees even if he declines joining the union. And this does not just happen in Illinois, but 21 other states.
The rationale behind the fair-share fees is that non-members also benefit from the union’s bargaining activities. However, non-members do not contribute to any lobbying activities by the union or backing of political candidates. According to Janus’ argument, the public sector unions and the government enter into bargaining agreements and therefore all of their activity should be considered political. Janus also argues that a state law requiring him to pay agency fees is a violation of his First Amendment rights because the unions do engage in political activities, forcing him to support views he doesn’t agree with. If the court rules in favor of the plaintiff, Janus, it would reduce the power of the public employee union.
According to proponents of the practice, the agency fees or fair-share fees non-members have to pay is a solution for a dilemma known as free ridership. The thinking behind this is that the union advocates for both non-members and members alike, hence if non-members are not required to pay the agency fees, members will reason that there is no need to pay for a benefit they could get for free. In line with this reasoning, many members would stop paying their dues causing the union membership to shrink drastically.
In the 40-year-old case, Abood v. Detroit Board of Education, the free-ridership issue was also in question. In this case, the court ruled that the fees were constitutional for the unions. In the case of Janus v. AFSCME, the justices are being asked to overturn the precedent set in the Abood case.
On Monday 26th February 2018, the court heard the arguments from both sides. The court seemed to be divided with Justice Elena Kagan stating that the court had never had to reverse a case that is so reliant on precedent from an earlier case. Four other justices expressed their concerns over the wide ranging impact of overturning the law. Justice Elena Kagan was concerned about the livelihoods of millions of individuals who would all be affected by the ruling. Justice Sonia Sotomayor expressed her concerns that if they ruled in favor of Janus, they would do away with the unions, while Justice Ruth Bader Ginsburg was concerned that the loss of fees would translate to loss of services all together.
In 2016, the court heard arguments on the same issue but under a different almost-similar case and the justices were deadlocked. The vote was split 4-4, hence upholding the legality of the agency fees but leaving an opening for further challenges. The deadlock was due to the passing of Justice Antonin Scalia. This time round, the battlelines seem unchanged but with a new justice, Justice Neil Gorsuch, who has proven to be on the conservative side, meaning there is likely to be no deadlock. He is the only Justice on the bench who has not weighed in on the issue.
Even though the court ruling will not be announced until early summer, the cynical prediction is that the justices will vote five-to-four with their decision in favor of Janus, a move Republicans are sure to celebrate. Democrats are the largest beneficiaries of union support and they are opposing the ruling in favor of Janus. Republicans, on the other hand, would benefit if the unions are weakened and hence do not support the unfair agency fees being levied on all workers.
Many experts agree that if the agency fees are struck down, which is the likely outcome, the unions will lose members and revenues in the short term. There is no doubt that the unions will be weakened — and less able to mobilize politically. All of this is good news for Republicans.
~ Liberty Planet