Unions Change Their Tune on Janus Supreme Court Ruling

It was the end of the world...until it wasn't.

The U.S. Supreme Court is attacking working people by destroying public-sector unions. That's the gist of the argument that the union movement has made as the court considered Janus v. the American Federation of State, Municipal and County Employees (AFSCME). Actually, their arguments were far more overheated, both before and after the high court ruled in June that government employees may not be forced to pay dues to unions—even for collective-bargaining purposes.

"The Janus case is a blatantly political and well-funded plot to use the highest court in the land to further rig the economic rules against everyday working people," intoned a typical statement last year from the American Federation of Teachers, in expectation of the decision. "The billionaire CEOs and corporate interests behind this case, and the politicians who do their bidding, have teamed up to deliver yet another attack on working people."

It wasn't only union officials who made apocalyptic predictions. In her dissent, Justice Elena Kagan argued that the decision "will have large-scale consequences." She predicted that "public employee unions will lose a secure source of financial support. State and local governments that thought fair-share provisions furthered their interests will need to find new ways of managing their workforces. Across the country, the relationships of public employees and employers will alter in both predictable and wholly unexpected ways."

Three months after the ruling, however, union supporters have largely changed their tune. In fact, the pro-union website the74million.org argued this week that "Strangely enough, these kinds of apocalyptic predictions have given way to claims that the ruling has had little or no effect on union membership at all." Mike Antonucci concluded that Kagan's warnings may have been wrong. Instead of "wreaking havoc" on contractual relationships dealing with government workers, the main changes have come from union-friendly legislatures that are passing laws designed to mitigate the effects of the ruling. "If governments are designing new ways to manage their workforces, they are keeping it well hidden from view," he argued.

Local news reports confirm that view. As the Toledo Blade reported in its coverage of a union rally shortly after the court's decision, "Lucas County union leaders said the Supreme Court's major blow to organized labor would likely have little impact on local unions' financial footing." In an article on September 3, the Boston Business Journal concluded that "two months later, the decision does not appear to have had devastating consequences for Massachusetts unions."

This appears to be consistent with what we're seeing nationwide. KPBS reported on September 7 that teacher union membership in San Diego has remained steady since the ruling, with only 10 out of 6,000 teachers ending their union membership since Janus.

An article in the Duluth (Minn.) News Tribune on September 2 also put some numbers behind its reporting: In Minnesota, nearly all the roughly 196,000 public sector employees who are covered by a union contract were members of their respective unions in 2017, according to data compiled by researchers Barry Hirsch of Georgia State University and David Macpherson of Trinity University. So when the Supreme Court decision that prevents public sector unions from collecting 'fair share fees' from nonmembers took effect in June, just 2,000 Minnesota employees saw their contract-bargaining contributions end." That's a mere 1 percent reduction in dues-paying, which explains the article's conclusion that "If the Janus decision was a car crash for public-sector unions, on first inspection it looks like it resulted in a minor dent, at least locally."

Shortly after the decision, the education website Chalkbeat published an article with the headline: "Colorado teachers unions will feel a limited impact from the Supreme Court's Janus decision." It quoted a union president who noted that the union's "biggest concern is not the financial side of things but the ideological side of things, that this is an attack on workers and workers' families and workers' ability to come together and have a collective voice." A union official described the ruling as beneficial because "we have to go out to individual educators and explain to them the benefits of belonging."

That gets to the heart of the issue. Unions understandably opposed the ruling for ideological reasons, but the savviest union leadership has long understood that it can actually strengthen their efforts by forcing them to more closely listen to the needs of their membership. This isn't particularly surprising. Competition tends to help, rather than hurt, all organizations.

In a January article for the California Policy Center, I wrote, "Even many union officials and their staunchest allies recognize that eliminating mandatory dues could be a boon to unions. It's counterintuitive, but forcing unions to compete for members rather than take their funding for granted will put an end to the complacency that has dogged these noncompetitive institutions." I've also repeatedly warned critics of public-sector unions not to expect the decision to be the death knell for these unions. It's just the beginning of a long process of encouraging unions to focus more on providing benefits rather than on using the political system to achieve their ends.

Furthermore, there appear to be some workarounds that allow liberal Legislatures to adjust their dues-collection process in a way that doesn't violate the decision. UCLA law professor Eugene Volokh wrote in Reason in June that "Janus might not change that much (though after what will doubtless be a thorny transition period). In particular, state legislatures that like the pre-Janus agency fee model—under which non-union-member state and local employees had to pay "agency fees" to unions in order to support collective bargaining—can maintain the practical economic effects of that model, without violating the First Amendment."

In reality, it's too early to assess the effect of the ruling. Over time, unions will either do a better job selling their services to government employees or their membership rolls will falter. I never expected the bottom to drop out, but rather expected a slow deflation. It will take far more than a few months to monitor those results. My expectations always were muted, but that doesn't mean that the court's ruling wasn't a laudatory one.

The excessive power of public-sector unions, especially in states such as California and Illinois, has driven up pension liabilities, derailed needed governmental reforms, and protected bad employees from accountability. But let's not forget the fundamentals of the Janus case or the arguments that most union critics made in favor of it. The goal was not to undermine the power of public-sector unions or reduce their political power. That was merely a side benefit.

The plaintiffs argued persuasively that this was fundamentally an issue about the First Amendment. No one should be forced to financially support an organization whose values and efforts they oppose. Now, public employees have the freedom of conscience. That's a great victory for liberty. If public-sector unions now flourish because of the voluntary support of their members, so be it. People should be free to take mistaken positions, as well.

This column was first published by the California Policy Center.

Steven Greenhut is contributing editor for the California Policy Center. He is Western region director for the R Street Institute. Write to him at [e-mail].