George Gibbs Center for Economic Prosperity

Why are labor un⁠i⁠ons ⁠t⁠hrea⁠t⁠en⁠i⁠ng ⁠t⁠he free speech r⁠i⁠gh⁠t⁠s of publ⁠i⁠c employees?

By: Dr. J. Robert McClure / 2018

The Supreme Court should overrule the decades-old standard and invalidate public-sector agency fees. (AP Photo/J. Scott Applewhite)

For many years, public-sector unions have been subsidized by dues paid by nonunion employees who had no choice about whether to fork over their hard-earned money. Now, this practice – and the survival of labor unions as we know them – is rightly in question as the U.S. Supreme Court reviews the case of Janus v. American Federation of State, County, and Municipal Employees (AFSCME).

Over 40 years ago, a group of Detroit public school teachers argued that they should not be forced to pay union dues because they disagreed with the collective bargaining and political activities of the union. However, the Supreme Court upheld the union’s practice in that case, Abood v. Detroit Board of Education. Unions have been allowed to force nonunion public employees to pay dues ever since.

In the current case, Mark Janus, an employee with the Illinois Department of Healthcare and Family Services, is hoping for a different outcome. He argues that politics are so interwoven with labor unions that being compelled to pay fees to subsidize them violates his First Amendment rights. The James Madison Institute agrees, and we filed an amicus brief in support of his position.

The Illinois labor union is quite politically active. It rejected Republican Governor Bruce Rauner’s efforts to implement a merit-based pay system, which could have saved the state’s taxpayers $3 billion. State employees who were union members of course paid dues, but those who were not members of AFSCME were still forced to pay “agency fees” to support the union – even though they might have opposed AFSCME’s bargaining position and actually benefited from the merit-pay reforms.

By coercing nonmembers to pay fees for unwanted political activities, Janus argues, the union infringed on the First Amendment rights of many public employees who had no voice in the bargaining process.

The union and its supporters are using what is often called the free-rider rationale: that nonmembers should not get to enjoy the “benefits” of the union’s representational efforts without paying full dues. However, employees cannot be considered to be getting a “free ride” when the union is advocating a political position they oppose. There are frequently political implications to the positions that public-sector unions take during the collective bargaining process, and often they don’t align with the views or interests of the workers they purport to represent.

Labor unions attempt to acquit themselves with the free-rider rationale while simultaneously failing to recognize their own culpability in free-riding. In a recent study of Florida union activities, The James Madison Institute studied “union release time,” a taxpayer-funded subsidy that allows members of public employee unions to conduct union business during working hours without loss of pay. While public-sector unions collect funds from union members and nonmembers alike, they are also enjoying cushy government policies that provide them with added benefits at taxpayer expense. The union “free-riding” keeps adding up, and our study concluded that the state should put an end to it.

Public employees who refuse labor union membership should not have to subsidize those labor unions’ political efforts – especially when they disagree with union positions and are denied the opportunity to counter any political speech they fund. Collective bargaining with the government involves taking an ideological and political position on a host of issues – workers’ compensation, for example. Nonmembers are forced to help pay for the union’s seat at the table, yet they are themselves shut out.

Unions are desperately trying to keep their hooks in the taxpayer-funded feeding trough, and they are doing this by compelling even nonmembers to pay for their activities. This is because membership in labor unions is on the decline as more and more workers find that the services and benefits are not worth the fees. While the principle of stare decisis is important to the stability of our system, ultimately this is one of those exceptions in which it’s time to move forward with a new precedent. The Supreme Court should overrule the decades-old standard and invalidate public-sector agency fees.

Dr. Bob McClure serves as the president and CEO of The James Madison Institute, Florida’s premier free-market think tank.