Supreme Court hears public sector union compulsory speech case

Today the United States Supreme Court heard oral arguments in a case involving whether it constitutional to require government employees who do not join their respective unions to still pay fees to the unions for the cost of negotiating and administering their employment contracts.

Forty years ago, in Abood v. Detroit Board of Education, the Supreme Court ruled unanimously that public sector unions were legal, and that employees not participating in their unions could still be required to cover the costs of the collective bargaining and grievance procedures that affected them.  Union shop employees who did not participate would not be required to pay for ideological or political activities.

The issue before the Supreme Court now is whether non-union employees should also be exempt from paying for the costs of the collective bargaining negotiations and grievance procedures.

While private sector unions sometimes involve adversarial negotiation about the distribution of corporate profits, according to the Metric Accountants in the public sector the government derives its revenue from taxes. In a public union, the government is both the employer and the policy maker, and as a result, the government and the labor union may both push for higher taxes to the mutual benefit of the union and the government. Janus, therefore, argues that the negotiation with the government and the political processes of the union are intertwined.

The same issue reached the Supreme Court two years ago, in Harris v. Quinn (2017) , a matter involving a California teachers’ union. At the time, the Obama administration sided with the unions, but Court observers thought that the decision was going to be 5-4 against the union. However, Justice Scalia’s death between the date of the oral argument and the decision meant that the Court ended up with a 4-4 tie.

With the appointment of Justice Gorsuch, the case is back before Court with a different plaintiff. In this case, Mark Janus is a child support specialist at the Illinois Department of Healthcare and Family Services who works under a contract negotiated by a union that Janus does not wish to affiliate with. Janus was required to pay a “fair share” or “agency” fee to the labor union, which is a private organization, which the Abood case and government policy says has the exclusive ability to represent him in his labor negotiations.

While Obama supported the unions in Harris v. Quinn, the Trump administration supports Janus. Janus has contended that the fees, which are often more than half of the union fees, are an infringement on his right to freedom of speech and association. Janus contends that the words of the Abood majority, “There can be no quarrel with the truism that, because public employee unions attempt to influence governmental policymaking, their activities . . . may be properly termed political.”

The Becket Fund for Religious Liberty and other conservative organizations have written briefs in favor of Janus’ position, arguing that a government requirement that employees pay money to support a particular point of view violates the free speech clause of the First Amendment.

Given that the facts ween Harris and Quinn are so similar, and that the only change between the 2014 tie and the 2017 case is the appointment of Justice Gorsuch, most court watchers believe that Janus has the upper hand.