Freedom to Free Ride: The Supreme Court Rules Against Unions

Drained of resources, will unions be able to carry on as effective exclusive representatives?

June 27, 2018
Supreme Court

Today, a narrow majority in the Supreme Court broke with longstanding precedent that recognized the vital role unions play in our democracyThe court’s ruling in Janus v. AFSCME will allow those who benefit from collective bargaining by public sector unions to do so without paying their share of the cost. 

While the majority in Janus claims to be vindicating workers’ First Amendment rights, in the long term, its decision undercuts the entire point of the First Amendment, which is to ensure a vibrant democracy that works for everyone. Indeed, in the concluding line of Justice Elena Kagan’s dissenting opinion, she writes, “The First Amendment was meant . . . not to undermine but to protect democratic governance — including over the role of public-sector unions.”

Overturning a 41-year-old Supreme Court decision in Abood v. Detroit Board of Education, the Janus ruling holds that it is unconstitutional for public sector unions to compel nonmembers they represent to pay “fair share” fees to cover the costs of collective bargaining. These fees exist because, while nonmembers of a union cannot be compelled to support its political advocacy, the union still has a legal duty to represent them in negotiations and enforcement of the collective bargaining agreement — including defending them in the event of wrongful termination. So it’s only fair that nonmembers shoulder some portion of the costs. Concluding otherwise, the Court has essentially used the First Amendment to constitutionalize free ridership. 

It bears remembering that this is the same Court that in Citizens United decided that corporations have the right to spend unlimited amounts of their shareholders’ money on electoral advocacy. In that ruling, the Court invoked “corporate democracy” as a safeguard against shareholders being forced to subsidize speech with which they disagree, but experience has shown that this is largely a myth. Ordinary shareholders have almost no control over corporate political spending. And thanks to the prevalence of dark money groups that keep their donors secret, they generally don’t even know about it.

Unions, on the other hand, really are democratic. Workers vote on whether to unionize, elect their union representatives, and vote to approve the collective bargaining agreements the representatives negotiate with management on their behalf. Unlike corporations, unions have to disclose their political activities to the workers they represent. This system of union representation has allowed millions of American workers to negotiate on an equal footing with employers for higher wages, safe working conditions, retirement benefits, and a host of other basic necessities.

The Janus case undercuts workers’ ability to make their demands heard through the collective bargaining process, in the name of First Amendment protections against compelled speech. But public employees already had the right not to join the union that represents them and not to subsidize the union’s political activities such as lobbying, marches, and campaign work. The fair share payments Janus eliminated were calculated to cover only the union’s collective bargaining activities. The foreseeable consequence of eliminating them while requiring unions to continue representing employees who refuse to pay dues will lead to, as Justice Ruth Bader Ginsburg predicted during oral argument, public sector unions being “drained of resources,” making collective bargaining with public employers even harder. 

Contrary to the majority’s reasoning, the First Amendment does not compel such a result. It is through collective action and democratic processes that workers have attained greater equality in the workplace. As Justice Kagan observes in her dissenting opinion, “[w]ithout a fair-share agreement, the class of union nonmembers spirals upward,” which in turn calls into question whether unions “will be able to. . . carry on as an effective exclusive representative.” 

The majority in Janus does not acknowledge these democratic principles. Rather, it articulates an atomized view of the First Amendment in which safeguards on broader democratic processes are recast as a “demeaning” “betray[al]” of the convictions of “free and independent individuals.” This reasoning is not only at odds with the dissent, but also with the Court’s own treatment of corporate political rights. The Court would have done well to remember its own words fromCitizens United: “[T]he Government may commit a constitutional wrong when by law it identifies certain preferred speakers.”

The framers plainly intended — as the Court has long recognized — for the First Amendment to secure “indispensable democratic freedoms.” Decided in the name of upholding the convictions of “free and independent individuals,” the consequence of Janus will be to undermine democracy in the workplace and beyond.