June 29, 2018
What impact the Supreme Court decision in Janus v. AFSCME will eventually have on the U.S. union movement remains to be seen, but public sector unions and their allies in the Democratic party are already taking steps to counter the ruling, which prohibits mandatory payments to unions by public sector employees.
What the decision held: Before Janus, public sector unions in the 22 non-right-to-work states could charge state and local government employees who are not members of the union an “agency fee” to cover the cost of the unions’ collective bargaining activities. The Court found that, because a public sector union's bargaining over pay and work conditions with a local or other government is inherently political activity, under the First Amendment workers can not be forced to fund that activity with agency fees.
While the case has no direct impact on private sector unions, public sector unions are politically active and are major advocates of new workplace regulations, especially at the state and local levels. Janus could reduce their revenue and impair their lobbying activities and political effectiveness.
The impact is significant but probably not fatal for the union movement. For example, the National Education Association (NEA) contends that agency fee payers account for only three percent of the union’s budget. The American Federation of Teachers expects the ruling to affect five to eight percent of the union’s agency fee payers.
Congressional Democrats have introduced a bill to reverse the decision, but it is unlikely to go anywhere in Congress without 60 Democratic senators to vote for it.
“What happens now? Good old-fashioned organizing,” said Lily Eskelsen García, president of the NEA. Teamsters President James P. Hoffa warned that the “Teamsters and our allies in the labor movement will redouble our efforts to ensure that working men and women have a voice on the job through strong unions."
And then there’s Justice Kennedy’s retirement, which was announced hours after the decision was issued. While Justice Kennedy joined with the majority on this issue, he has often been viewed as the swing voter on many social and, occasionally, employment issues. With other potential Court vacancies looming during President Trump’s term, the Janus decision underscores the importance of the Court’s composition. Majority Leader McConnell has vowed to secure confirmation of Kennedy’s replacement this fall—but not without some strong opposition.