Justice Dept. Opposes Mandatory Union Dues for Public Employees, Reversing an Old Position

AFSCMEThe Department of Justice is recommending that the Supreme Court rule that public sector employees cannot be forced to contribute dues to unions, even when they're not members.

The decision to submit an amicus brief supporting the employee in Janus v. American Federation of State, County, and Municipal Employees, Council 31 reverses the Justice Department's previous position under President Barack Obama.

Mark Janus, who works for the Illinois Department of Healthcare and Family Services, objects to having to pay dues to a union whose political positions he disagrees with and whose spending he questions in order to keep his job.

Public sector employee unions have historically been granted the authority to force payment of these dues under a 1977 Supreme Court decision, Abood v. Detroit Board of Education. The justification has historically been that even when public employees don't join the union, they are beneficiaries of the union's collective bargaining agreements. Requiring them to pay fees avoids the problem of "free riders."

But public employee unions are notoriously political and their bargaining agreements are inherently connected to public policies about government spending choices. In a commentary at the Chicago Tribune last year, Janus wrote that he didn't support the behavior of the union that "represents" him, blaming it for supporting candidates and fiscal policies that are essentially bankrupting Illinois.

The Justice Department's amicus brief, submitted yesterday, argues that public sector collective bargaining is inherently a political act, and therefore requiring people like Janus to pay dues is forcing them to subsidize political positions they may oppose:

In the public sector, speech in collective bargaining is necessarily speech about public issues. Virtually every matter at stake in a public-sector labor agreement affects the public fisc, and therefore is a matter of public policy concerning all citizens. Moreover, issues like tenure for state employees, merit pay, and the size of the state workforce are about more than money: they concern no less than the proper structure and operation of government. To compel a public employee to subsidize his union's bargaining position on these questions is to force him to support private political and ideological viewpoints with which he may strongly disagree.

The Janus case is essentially a redo of 2016's Friedrichs v. California Teachers Association, which presented similar arguments. The Supreme Court heard the case, but then Justice Antonin Scalia died and the court tied 4-4, leaving the status quo intact.

Damon Root identified Janus as one of the three major cases to watch at the Supreme Court's current term. It may not have the public outrage factor that has driven the coverage of the Masterpiece Bakeshop gay wedding cake case, but the policy implications and the impact on public sector unions here if the Abood precedent were overturned would be huge.