Editor’s Note: Public workers have free speech rights
The U.S. Supreme Court Monday heard arguments in a pivotal case — one that could impact millions of public union employees around the country.
At the heart of this case is whether government workers who have opted out of a union should be forced to pay fees to keep their jobs. Many of these employees don’t believe in the political causes supported by their unions, and they think these so-called agency fees contribute to that work. Consequently, this is seen as a violation of their First Amendment rights, in that they are forced to support political activity they don’t like.
The case is brought by Mark Janus, an Illinois state employee, against his union, the American Federation of State, County and Municipal Employees. As they do in right-to-work battles, unions will argue this case is all about weakening their power and that it’s harmful to employees they represent. In addition, unions claim that agency fees (which are only slightly less in most cases than full dues) are used to cover collective bargaining, but it’s likely agency fees spill over into more overt political work. Plus, plenty of public workers have made the case that bargaining is inherently political.
The case challenges a 1977 high court precedent out of Detroit that upheld agency fees. Two years ago, the court heard a similar challenge from nine teachers in California, but following the death of Justice Antonin Scalia, the justices deadlocked 4-4 on the case and then declined a petition to rehear it later in 2016. Now, new Justice Neil Gorsuch could tip the balance in favor of Janus.
More than half the states, including Michigan, have right-to-work laws that already stipulate unions can’t demand dues or fees as a condition of employment. If the court overturns agency fees, however, Michigan would still feel some impact from the case, since the right-to-work law excluded police and fire unions. And all states (think of big population states like California and New York) would in effect become right to work in terms of public sector employees. More than 7 million public workers belonged to a union in 2016.
This case won’t fundamentally harm unions, as witnessed by the impact of right to work in Michigan. But it would ensure the First Amendment rights of public workers are protected.