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The Limited Effects of the Supreme Court's Janus Decision

States that want to allow public sector unions, and avoid "free-rider" problems, should still be able to do that -- just by paying unions directly, rather than via compelled agency fees.

I hope to blog a good deal about today's Janus v. AFSCME decision in coming days. As readers might gather, I disagree with the majority, for reasons discussed in Will Baude's & my amicus brief, but I also disagree with some aspects of the dissent; and in any event, I'd rather deal with separate conceptual aspects in separate posts.

For now, let me suggest that, going forward, 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.

Let's take a stylized example: Say that Illinois is paying some employees $50,000/year, and deducts $500/year from each paycheck in union dues to their union. Now, after Janus, such payments can no longer be compelled. But Illinois thinks it's important that the union get adequate funding for its collective bargaining activities, and thinks that, given that unions have to fairly represent all employees (both union members and others) in such bargaining, all employees should share in that cost.

Illinois can then change its practices: It would cut the employees' salary by $500/year, and then pay $500/year/employee, straight from state coffers, to the union as a "contract administration fee"—just as it may pay other entities that provide important services to the government (cleaning, accounting, insurance processing, etc.). The employees would still have a take-home paycheck of $49,500, as before. Illinois is still paying $50,000/employee, as before. And the union is still getting $500/employee as before (plus whatever extra dues people who join the union choose to pay, dues that could then be used for other purposes, such as political advocacy). Or if cutting the salary is too politically infeasible, or carries improper symbolism, just reduce the expected cost-of-living increases for the following year by the $500/year.

Here, I think there would be no First Amendment problem, even under the Janus majority opinion. After all, no employee would be required to pay any money to a union; the money would come directly from a state or local government treasury, much as money for a wide range of purposes (education, government publicity compaigns, government contracting) comes directly from such treasuries. That the money is paid on a per-employee basis shouldn't matter; nor should it matter that the employee salaries or future cost-of-living increases were reduced to cover this payment.

The government can cut my salary as a UC employee by $500 and then spend the $500 on funding some new classes, or funding anti-smoking ads, or paying money to a private organization that would then put out anti-smoking ads. It should be free to cut my salary by $500 and then pay the $500 to a union that would then engage in collective bargaining. To the extent I'll still be subsidizing the government payment, it will be only in the sense that all taxpayers subsidize all government expenditures—and the Court has never suggested that such use of tax money even implicates the Free Speech Clause. Indeed, such a system might better reflect the argument in favor of public sector unions, which is that they are said to provide fair treatment for employees, an orderly bargaining process, and labor peace. If a state government thinks unions provide such valuable beneifts for the state, why not pay them for it, the way the state government pays other organizations that perform various services for the state?

Now I think this helps show that the Janus majority erred in claiming that the agency-fee system is unconstitutional; as the dissent points out, "when a government mandates a speech subsidy from a public employee," that is really just "levying a tax to support collective bargaining," and doesn't violate the First Amendment. But, rightly or wrongly, the majority held thatrequiring the money to be paid "by the employee" (in the sense of being withheld from the employee's paycheck) violates the First Amendment, because at that point the employee is being compelled to directly fund the union. Fine then: If the state government thinks that the union is providing a valuable service to the state, the government can just fund it directly out of general tax revenues.

As a recent article by Prof. Benjamin Sachs points out, this may require some changes to state law. Many state labor laws now bar direct payments by employers to state employee unions (a holdover from a time when people were especially concerned about undue employer control of unions). And state campaign finance laws sometimes restrict political action by government contractors, which unions might end up becoming under this new proposal. But if a state legislature wants to change the law this way, and presumably legislatures in many of the states that allow compulsory agency fees would, it can do so.

I realize that some people might say that this is an attempt to work around the Court's decision, and is thus impermissible. But some such workarounds are fine; compare, e.g., Johanns v. Livestock Marketing Ass'n (2005), which upheld an agricultural advertising funding system that was economically very similar to a different funding system that the Court had struck down on First Amendment grounds in United States v. United Foods, Inc. (2001).

The question is whether the workaround solves the underlying constitutional problem. If the problem is that requiring government employees to pay money to a union violates the First Amendment, then the workaround would solve it, because then the money would be paid by the government from general treasury funds, and not by the employees.

And if the problem is that requiring even taxpayers to subsidize unions, via the government, violates the First Amendment, then the law has a much bigger problem on its hands: After all, taxpayer money flows to a vast range of speakers, both governmental and private, through a vast range of government programs and government contracts. I don't believe the Court in Janus was suggesting that all these payments—to public education, to government contractors for services rendered, to government-selected private organizations whose speech the government wants to funds, and more—are constitutionally suspect.

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  • Brett Bellmore||

    So, you've got an employee who's earning $50k, and was being forced to pay $500 annually in dues, $400 of which were diverted to political efforts on behalf of the politicians who had arranged for the agency fee.

    After Janus, the employee will still get $50K, keep his $500, and the state taxpayers will be forced to pay the $500, of which $400 will be diverted to political efforts on behalf of the politicians who decided to pay the union the $500.

    Well, I suppose it DOES have the virtue of making the money laundering from taxes to politicians' campaigns more obvious...

  • bernard11||

    So, you've got an employee who's earning $50k, and was being forced to pay $500 annually in dues, $400 of which were diverted to political efforts on behalf of the politicians who had arranged for the agency fee.

    No. The employee was not forced to pay dues. Only the part that goes for collective bargaining, which would be $100 in your example.

  • Brett Bellmore||

    Only that part that the union claims goes for collective bargaining. Unions routinely understate the amount they spend on politics.

  • Bob from Ohio||

    They give their full time employees paid time off the volunteer for instance.

  • MarkW201||

    Do you have some hard data from a neutral source to support this?

  • nonzenze||

    In Janus, the union itself claimed ~80% for collective bargaining. While it's hardly proof beyond a reasonable doubt, even those that support unions should not believe it's plausible that they spend less than 20% on political efforts.

  • santamonica811||

    Nonzenze,
    Why? My mom's union (Los Angeles Public Library system) spent essentially zero on politics over the course of 30 years. My dad's union (LA community college system) spent almost zero on politics over the course of 40 years, excepting the year 1980). I suspect that there are some labor unions that are very active politically and others that are not. What the aggregate percentage is...I have no idea and my quick Google did not give me any helpful answers.

  • bernard11||

    Well, then, taking a page from arguments in other cases, let the courts enforce the requirement that unions report honestly, subject to audit, what they really spend on collective bargaining.

  • JesseAz||

    Which unions would never agree to as it would expose their money laundering to themselves. How many examples in the last few years alone?

  • TheAmazingEmu||

    Unions aren't required to agree. Regardless, that's the same argument when it comes to collusion and PACs for political ads. They're not allowed to mingle funds or coordinate and, as long as they don't, they each have First Amendment rights to make campaign ads.

  • Sarcastr0||

    Why bother giving them a choice? Jesse can already speak for them!

  • Sigivald||

    Doesn't matter that it's not "membership dues", because money is fungible.

    And "what counts as collective bargaining spending" is in practice "whatever the union claims is that", no?

    ("This political donation/propagandizing/whatnot is collective bargaining related because it helps strengthen our position for the next round" is actually defensible in itself.

    Thus, in practice, unlimited.

    This why I'm dubious about the reasoning in the amicus in practical terms, even if it's quite correct in terms of standing precedent and interpretation.

    "You have to pay this third party because we've decided they represent you in effect even if you don't like anything they stand for, and we can't even keep them from spending the money on things unrelated to the justification, but this isn't compelled speech or association, no sir" just ain't working for me.)

  • nonzenze||

    You have to pay this third party because we've decided they represent you in effect even if you don't like anything they stand for,

    To be fair, the employees voted for the union. So it's not that the State has decided that the union represents the workers, rather the State has allowed that 50%+1 union workers can elect a union that has exclusive bargaining rights for the entire group.

    If you object to that, then we have to really rework the entirety of US labor law.

  • ||

    The principles of our republican government dictate that 50% + 1 union workers cannot require that the other 49% pay to espouse a view they don't like.

  • damikesc||

    They also don't get to re-vote on the union yearly. It takes some work to get a decertification election.

    So, because people years ago liked it, you're required to participate.

  • nonzenze||

    50% + 1 union workers cannot require that the other 49% pay to espouse a view they don't like.

    They do in nearly all other facets of government.

    50% + 1 can set the curriculum for public schools.
    50% + 1 can have the government engage in an advertising campaign
    50% + 1 can set a foreign policy that the US will espouse on the world stage

    I think there is something very different about Janus' claim that make him a winner and this lame argument a loser.

  • Greg Q||

    No, they don't

    50%+1 gets to decide what the government does

    it doesn't get to decide what YOU do

    Which is the point of the 1st Amendment

  • Sarcastr0||

    Taxes. School fees in private schools. HOA fees...

  • MatthewSlyfield||

    "To be fair, the employees voted for the union."

    Some employees voted for the union, possibly decades ago. Neither federal law nor most states, require regular re-certification of the union. It is not beyond the realm of possibility that none of the state's current employees have had the opportunity to make an up/down vote on union representation.

  • nonzenze||

    If the question is, do I support a maximum time between union re-elections, the answer is definitely. The workers should vote at least every 5 years.

  • MatthewSlyfield||

    But that's not what the law is now. the current law at the federal level and in the majority of states (I think one or two states enacted periodic re-certification requirements) is one election once. Re-certification only ever happens if employees circulate a de-certification petition and the employer and NLRB sign off on it.

  • bratschewurst||

    Some people voted for the Constitution, possibly decades ago.

  • JesseAz||

    Very few government union employees actually were part of their current unionization votes.

  • DjDiverDan||

    "If you object to that, then we have to really rework the entirety of US labor law."

    Sounds good to me. Where shall we start? How about disbanding the NLRB so we can stop paying those union stooges salaries and (extraordinarily generous) benefits on the taxpayers' dime.

  • bernard11||

    The fungibility argument doesn't work. Let the union prepare a budget for collective bargaining and divide it up among the affected workers, union members or not.

    Audit it and enforce it. You know, sort of like laws against fraud and whatnot make the notice requirement in the California clinic case unnecessary.

  • Greg Q||

    Let me guess, you didn't bother to read any of Janus before "commenting" on it.

    Go read the part on what the Union was taking, how much information the workers were given justifying the breakdown between "chargeable" and "non-chargeable", and how much it would cost to fight the union on that.

    Then come back to us and show us all the times when unions overcharged, and had the charges reversed.

    Can't find them?

    Then terminate "agency fees"

  • Sarcastr0||

    Greg, you're arguing a case for fraud, not a case for compelled speech...

  • ||

    And if the employee doesn't agree with the things that the union is saying on their behalf, when 'bargaining'?
    What then.

    Forced collective bargaining, by government edict, is forced speech.

  • nonzenze||

    This is a bit much. The prohibition on separate bargaining by a minority of the workers is a longstanding practice.

  • MatthewSlyfield||

    That it's a long standing practice doesn't prove that it's a legitimate practice. My understanding is that while the NRLA allows unions to seek exclusive bargaining status and requires that they bargain for all employees if they have exclusive bargaining status, the union is not actually obligated to seek exclusive status in the first place.

  • nonzenze||

    That it's a long standing practice doesn't prove that it's a legitimate practice.

    Extraordinary claims require extraordinary evidence.

    Likewise, claims that overturn longstanding practice require extraordinary justification.

  • bratschewurst||

    Public sector unions are not governed by the NLRA.

  • TheAmazingEmu||

    Where's the line there. Does any time someone advocate for me when I don't want them to, that's forced speech.

    I think you have a better argument that preventing that employee from engaging in his own bargaining would be censored speech, but taxing him and giving it to another organization to speak isn't forcing him to speak and I don't see why that changes just because that organization is also speaking about you.

  • HMI||

    One can but hope that this sort of arrangement would then give the states the leverage to audit the unions' accounts to insure properly nonpolitical use of public monies.

  • JesseAz||

    Only idiots believe unions accurately accounted for a division in their political spending from other charges. For example, no union leader salary was ever counted as a political expense even parually despite their time Sunday into campaigns.

  • JesseAz||

    And that's the point I think the professor misses. Good luck defending a 15 million dollar budgetary transfer yearly to unions.

    Plus the first Republican to come into office can now kill that transfer whereas before they were contractually obligated.

  • Eidde||

    So the court's opinion banned agency fees but its reasoning does not preclude a taxing scheme with a similar effect.

    Would you say that the decision is Janus-faced?

  • ||

    We will see.
    The goal of the organizations behind Janus is to end mandatory unionisim en-toto, including mandatory representation.

    The next case, likely, is to go after forced participation in collective bargaining.

  • ||

    If it did, nearly every government grant would be unconstitutional (which may be a good thing!).

  • Anon Y. Mous||

    Hmmm... All those hypothetical dollars and no mention of where their real world counterparts go: into the coffers of the Democrat party.

    BTW, Prof Volokh, do you have a dog in this fight? Are you a member of a union?

  • Eugene Volokh||

    I am not a member of a union, and I'm certainly not a Democrat.

  • John||

    I don't doubt that is true. But your position on this issue is still appalling. Your position at its heart is that the interests of public employees to be able to collectively bargain higher than market wages outweighs the interest of preventing the government from infringing on a fundamental right as a condition of employment. It utterly baffles me how you could talk yourself into such an absurd and anti-liberty position.

  • nonzenze||

    Those of us that have read EV for more than a decade might disagree with him, but are 100% sure that he is not "anti-liberty". If he adopted a position you think is anti-liberty, then the overwhelmingly likely cause is that you and him disagree about the liberty at question.

  • Careless||

    If he adopted a position you think is anti-liberty, then the overwhelmingly likely cause is that you and him disagree about the liberty at question.

    I'd think it more likely he considers there to be binding law/precedent that is anti-liberty, instead.

  • jawlz||

    Why do you assume that public employee unions will bargain above market wages? I suppose in some cases they have, though they haven't in all cases (just as various private-sector unions sometimes have negotiated better or worse wages than other unions).

    Based on your other posts, I guess you're assuming above-market wages for the public sector because the public sector isn't competing against others in the way private sector firms do, though of course in much of the country municipalities and counties can indeed go through bankruptcy which affords some opportunity to adjust wages and liabilities.

    An aside - a later post of yours says, "any union that manages to extract above-market wages from an employer will be cutting off its nose to spite its face because getting such wages will eventually bankrupt the employer and leave everyone without a job." This is not necessarily true - an employer might pay above-market wages and still be profitable. So long as an employer isn't experiencing *losses* as a result of paying above-market wages, those wages will not automatically bankrupt that employer. Many successful firms pay employees above-market wages under the assumption that they can as a result get better employees who are more productive/effective/profitable/etc.

    I'm not a particularly big fan of unions (and I'm certainly not a big fan of the political influence large public-sector unions have in many states), but hyperobolizing their ill effects isn't helpful.

  • John||

    Why do you assume that public employee unions will bargain above market wages?

    Because there could be no other collective benefit to a union. Unions can help individuals keep from being fired or win a dispute with his employer. But those are not collective benefits. There is no reason for everyone to join a union for its members to get those benefit. The only benefits that accrue to all employees members and nonmembers alike are increases in wages. The government must pay market wages or it wouldn't have employees. So if a union increases wages as a result of its bargaining power it is by definition above market rate.

  • bernard11||

    Because there could be no other collective benefit to a union. Unions can help individuals keep from being fired or win a dispute with his employer. But those are not collective benefits. There is no reason for everyone to join a union for its members to get those benefit.

    Huh? That makes no sense. Why would the union help if you weren't a member?

  • John||

    The union defending me is an individual benefit. You don't get a free ride for that. You have to join. You only get a free ride on wages and benefits.

  • bratschewurst||

    Untrue. The duty of fair representation applies to members and non-members alike under exclusive representation. That's why there's a free-rider problem.The most piquant part of Kagan's dissent is when she quoted Scalia on precisely this issue; he said, in effect, that when government itself mandates that the union represents non-members, the government can mandate fees for that purpose as well.

  • Brett Bellmore||

    "Because there could be no other collective benefit to a union."

    This is one of those public choice theory problems. Once you've got the union, what's keeping the people running it from just running it for their own benefit? Not a whole lot.

  • bratschewurst||

    "Unions can help individuals keep from being fired or win a dispute with his employer. But those are not collective benefits. There is no reason for everyone to join a union for its members to get those benefit."

    Job security (defined as no termination without due process) is absolutely a collective benefit; it benefits even those who would never be terminated under due process, as it prevents terminations for malign reasons.

    And you're right; there's no reason to join a union for anyone to get the benefits - now. Of course, without members paying dues, the union will eventually be unable to provide those benefits - even for those who want them. But why should they pay for them if they don't have to?

  • David Nieporent||

    Unions can help individuals keep from being fired or win a dispute with his employer. But those are not collective benefits

    The representation of an individual employee in an individual dispute is not a collective benefit. The abrogation of at will employment is a collective benefit.

  • David Nieporent||

    Not to speak for Prof. V., but no, that's not his position. His position is that it doesn't infringe on a fundamental right.

    Okay, I guess I _am_ speaking for him.

  • Jmaie||

    Am guessing you did not read his amicus brief and his earlier post on the...

  • Jmaie||

    ...post on the subject. Darn fumble fingers...

  • Anon Y. Mous||

    OK. I didn't think you were a Democrat, but I wasn't sure about the union. A quick search came up with the CFA, who describes themselves as follows:

    We are a union of 28,000 professors, lecturers, librarians, counselors and coaches who teach in the California State University system. In classrooms on the 23 CSU campuses, CFA members work hard to teach our students the critical thinking skills, the technical know-how and the cultural insights they need to be thoughtful, productive and artistic participants in our society.

    http://tinyurl.com/y7new24y

    But, that's the Cal State system. I wasn't sure if the University of California has something similar, or if the CFA is a mandatory system or not.

    I take it by your commentary you would not have a problem with forced union membership and dues for the tenured professors at UCLA?

  • Eugene Volokh||

    I don't think it would be unconstitutional, for the reasons I describe in the brief. Whether I'd object to it on other grounds is a separate question.

  • bernard11||

    I'm certainly not a Democrat.

    No. You're one of those "sensible Republicans," right?

  • Soronel Haetir||

    While I agree that the direct payments from tax revenues would be fully constitutional I do believe they would not be nearly so politically palatable.

  • David Nieporent||

    Agreed. Actually having to appropriate money from the treasury to write a big check to a union is not going to look so good. (And there will be lots of competing hands being held out for that money, if it's coming from the treasury.)

  • Allutz||

    Indeed. Much like Obamacare and various other schemes, mandatory union fees are hidden taxes. Unless you are in a 1 party state (which doesn't apply in even very blue IL) its not going to be very popular to write a $20 million appropriation to the SEIU...for the purpose of the SEIU to make the debt increase even more.

  • Joe_dallas||

    The problem with EV's solution is that the funds will still be used for political purposes.

    As noted in Alito's opinion, The union allocated 76% of the union costs to chargable expenses (employment negotiation expenses). Given the amount of political advocacy of the typical public sector union, I find such a high allocation beyond credibility.

    The solution is simply using taxpayer money to fund political advocacy on behalf of one or another ideology.

    Quite frankly, the government should be neutral

  • Sigivald||

    Indeed, how much can it actually cost a public employees union to do negotiation?

    It's negotiating with, what? Cities, counties, a state government? Not many entities, most of which aren't actually especially hostile to the interests of public employees at all in the way that an old labor/management divide might work.

  • MarkW201||

    When my community college district faculty negotiates a new contract with the district, several faculty are named to the bargaining team, and commit a substantial amount of time to negotiations. As a result, the union compensates the district for giving each of these bargaining team members a reduced teaching load during the year when negotiations are going on. So, not a trivial issue.

  • Sarcastr0||

    I dunno...local governments are pretty incentivized to keep their costs down.

  • Joe_dallas||

    I dunno...local governments are pretty incentivized to keep their costs down.

    sometimes yes - sometime no -

    Our local school district went on a extensive building expansion program in a school district where the enrollment has been flat and will remain flat. I asked the school board president why they were spending taxpayer money for building expansion. Her reply " It is Bond Money - not taxpayer money"

    Wasnt any incentive to keep costs down.

  • jawlz||

    It's unfortunate that your school board president didn't understand that the debt service on that bond money comes from taxpayer money. Some very basic financial training for public officials who have say over expenditures should probably be mandatory.

  • Joe_dallas||

    It's unfortunate that your school board president didn't understand that the debt service on that bond money comes from taxpayer money.

    Its a common problem -

  • Brett Bellmore||

    I wouldn't assume she didn't know that. The truth is, the expansion wasn't hurting HER any, and who knows, might have been helping her in some way, perhaps under the table.

  • bernard11||

    Yes. Anyone you disagree with must be dishonest. Unlike your idol Trump, who is the soul of integrity.

    I don't think Trump supporters have any business criticizing dishonest politicians.

  • Jmaie||

    School districts need voter approval for capital measures (in many if not most cases by a super-majority). So while indeed taxpayer money, it's not as if the district president just decided one day to start building.

    In my own state of Washington the voters decided that K-3 class sizes needed reducing, so every district now needs more space even when enrollment is flat. Also not wholly germaine to your point, but it does make the president's comments a little less let-them-eat-cake-ish.

  • Smooth Like a Rhapsody||

    "local governments are pretty incentivized to keep their costs down."

    This message brought to you by the State of Illinois.

  • nonzenze||

    The solution is simply using taxpayer money to fund political advocacy on behalf of one or another ideology.

    As Eugene already pointed out, taxpayer money is already used to fund all kinds of political activity in myriad ways. If you decide now that it cannot (or, constitutionally must not) then you have invalidated a lot.

  • TheAmazingEmu||

    Can the government spend money to fund DARE or MADD?

  • Dan Smith||

    And if the problem is that requiring even taxpayers to subsidize unions, via the government, violates the First Amendment

    I think this is exactly what the majority says the problem is. As Kagan says, "we will discover that today's majority has crafted a 'unions only' carve-out to our employee-speech law". The court majority says unions are disfavored by the constitution

  • Joe_dallas||

    Dan - " As Kagan says, "we will discover that today's majority has crafted a 'unions only' carve-out to our employee-speech law"."

    To summarize Kagan's argument - compelled speech is constitutional when it goes to groups promoting ideas we agree with.

  • Sarcastr0||

    This is actually the opposite of that Kagan is saying, however - that this compelled speech argument proves way to much but thusfar only applies to unions.

  • Toranth||

    Other than unions, what other cases are there of the government forcing government employees to pay a third-party private organization to speak on their behalf, even when the employee opposes the speech the third-party is making?

  • Joe_dallas||

    Sarcastr0|6.27.18 @ 2:22PM|#

    This is actually the opposite of that Kagan is saying, however - that this compelled speech argument proves way to much but thusfar only applies to unions.

    As Kagan says, "we will discover that today's majority has crafted a 'unions only' carve-out to our employee-speech law". The court majority says unions are disfavored by the constitution.

    Sar castro - You need to work on your remedial reading. Kagan is arguing in favor of compelled speech via her disengious reference to free speech - A distinction you failed and/or refused to notice.

  • Sarcastr0||

    I disagree with your interpretation - she's saying the majority is the one making a special carve out, and that hers is the content neutral doctrine.

    You can say she's lying about that, but that's not in the text of her dissent as I read it.

  • bratschewurst||

    To summarize Scalia's argument in favor of agency fees (which Kagan quoted): when the government mandates that the union represent non-members as well as members, the government can also mandate requiring non-members to pay a fee for that service.

    That was from his concurrence/dissent in "Lehnert," if you want to look it up.

  • Brett Bellmore||

    " The court majority says unions are disfavored by the constitution."

    As they normally function, they most assuredly should be. A nominally private organization you can be compelled to join and/or support? They're a first amendment nightmare.

  • MarkW201||

    So would you object to homeowner's associations on First Amendment grounds?

  • phattyboombatty||

    A homeowner's association is non-public, so the First Amendment does not apply

  • MarkW201||

    A union is also non-public, so the applicability or not of the First Amendment is the same.

  • bratschewurst||

    Do you have an equivalent problem with union members being compelled to pay to represent non-members? Because that's what this decision requires.

  • David Nieporent||

    I hope to blog a good deal about today's Janus v. AFSCME decision in coming days. As readers might gather, I disagree with the majority,

    Prof. Volokh is too modest to note that the dissent expressly cited him.

  • ||

    Anything that forces public workers to *participate* in collective bargaining against their will can now be (and should be) seen as compelled speech (that's the next case, FWIW).

    The non-spiteful, abjectly legal 'fix' for any free-rider concerns, is to remove the requirement for unions to provide services to non-members, and let the free market determine whether any given union should survive: Once unions are no longer required to represent non-members (a problem the unions themselves created, by lobbying for a govt monopoly on representation), they have no claim to funds from said non-members. On the flip-side, people who want whatever benefits (if any) come from union membership would have to pay up.

    But that would require the 20-odd remaining non-RTW states to accept a world where they can't funnel taxpayer money to the Democrats, by-way of public unions. And to not engage in the kind of partisan temper-tantrum that has become all too common these days.

  • Dan Smith||

    The government can pick whoever it wants to bargain with. If the government picks the tallest hobo under a bridge, gives him a million bucks, and then says employee wages will be decided by bargaining with the hobo, that would certainly be constitutional

  • Drewski||

    Pretty sure that would fail rational basis review, but a slightly less extreme example would probably hold up.

  • ||

    I wouldn't be so sure of that after this case.

    Although I am sure that spiteful coastal states will try.

  • JonFrum||

    " Or if cutting the salary is too politically infeasible, or carries improper symbolism, just reduce the expected cost-of-living increases for the following year by the $500/year."


    Evidently, someone thinks that if people aren't lawyers, they're too dim to know when $500 is being taking out of their pockets.

  • Eugene Volokh||

    But in the hypothetical, the employee is no worse off than before Janus -- before, the $500 was taken out via a paycheck deduction, and after it is taken out by the paycheck simply being reduced by the $500.

  • John||

    But he is still worse off than he would be if the government was not forcing him to support a union. If I steal money from you and don't give it back but agree not to steal anymore, you are no worse off. That, however, doesn't change the fact that you are still worse off for my stealing from you.

  • jph12||

    "But in the hypothetical, the employee is no worse off than before Janus"

    I'm not sure that "you aren't any worse off than you were when we were violating your rights" is a particularly compelling argument.

    "just reduce the expected cost-of-living increases for the following year by the $500/year."

    I would assume that most states have procedures that must be followed when calculating cost-of-living increases. I'm skeptical that it could be arbitrarily reduced to account for agency fees without some type of legislation.

  • Allutz||

    I think you ignore the difficulty of adding an appropriation in a cash strapped state, where said appropriation has no reasonable justification.

  • Number 2||

    Logically, yes. But the optics are bad and the employees would explode.

  • jjrzw72||

    Slightly better off, in fact, since she won't be taxed on the agency fee.

  • John||

    I honestly do not see how anyone who claims to care about individual rights can support the government forcing people to spend money to support and join an organization. The only argument made in response to this is "but if we don't force people there won't be any unions." Okay. First, I do not think that is true. But even if it were, if the only way for unions to exist is for the government to force people to join them, then maybe unions shouldn't exist? I think the right not to be forced to join an organization outweighs any compelling interest in having unions.

    The Constitutional implications of this are actually not that big. All this ruling says is that the government cannot force you to join a private organization as a condition of employment, which is effectively a government benefit. That should have never been allowed in the first place. Imagine if the government forced people to join "workers support organizations" as a condition of getting unemployment or welfare? It would be outrageous and never stand up in court. Forcing people to join a union as a condition of government employment is no different.

  • John||

    Beyond that, think about this from an economic perspective. There is a prevailing wage for employees. If the government does not pay that, it won't get qualified employees. So, the market effectively prevents the government from underpaying its employees. So what purpose do unions serve? Public sector unions are able to use the collective power of their employees and their money, votes and perhaps ability to strike to force governments to pay above-market wages to their employees.

    In the private sector, this is not a problem. Any union that manages to extract above-market wages from an employer will be cutting off its nose to spite its face because getting such wages will eventually bankrupt the employer and leave everyone without a job. Public employee unions have no such constraint. Public entities can just use the power of the gun to extract more money from their citizens to pay for the above market wages.

    In the end, all forcing people to join these unions accomplishes is to allow unions to extract above-market wages for government employees at the expense of the taxpayer. How on earth is the interest in allowing public sector employees the ability to negotiate above market wages compelling at all much less so compelling that it overrides the interest in the government not being able to force people to join and support private organizations?

  • John||

    I think Eugene Volk warrants special criticism over this issue. His position is especially appalling when ou consider that the Volk Conspiracy spent all yesterday claiming that the government is subject to strict scrutiny and all of the restrictions found in the BOR when making determining when non citizens can enter the country and at the same time is claiming that the government can completely disregard the 1st Amendment and force citizens to support private organizations as a condition of employment. They are just partisan hacks.

  • David Nieporent||

    I... don't think you know what the word "partisan" means.


    (Or how to spell "Volokh," for that matter.)

  • John||

    I am pretty sure I do. If you disagree with my criticisms of his positions, say why. If you can't say why, then you are just a fanboy and need to get over your idol being wrong.

  • Jmaie||

    I'll take a whack at engaging your actual arguments...Ilya Somin is the main conspirator claiming that the BOR applies to entry decisions, Eugene not so much. Given the Eugene doesn't exercise editorial control, I don't see the conflict.

  • damikesc||

    I don't understand Volokh's apparent obsession with guaranteeing the funding of the public unions. If their service was desired, this would be a non-issue. People routinely pay for services they find beneficial. A REQUIREMENT that you must join one to have a job seems like an abhorrent assault on liberty.

    Public union existence is sketchy enough, given the lack of an actual adversarial relationship in the negotiators (unions do fund campaigns for the people making the call on pay). An obligation to join is not very excusable.

  • phattyboombatty||

    I think you are confusing his arguments regarding what the law IS with what he would want the law to BE. I don't see him arguing any particular policy positions here. Lawyers have no problem comfortably saying what they think is the correct decision under current law, while separately holding a private opinion as to what they think would be the best result from a policy perspective.

  • Lee Moore||

    His point is not that public sector unions are wonderful (he expresses no opinion on the subject) but that those who do think that public sector unions are wonderful are having an unnecessary fit of the vapors, because there's an easy (IHHO) legal work round for the unions and the governments that like them.

  • MonitorsMost||

    State of Washington already did this to work around the Quinn decision for individual paid care providers. Ends up costing taxpayers more in the long-run.

  • BillyG||

    Do you have any further information on this? I'd like to see how this ended up costing Washington State more.

  • MonitorsMost||

    Forgive me that I'm not well versed in Washington law. But the according to my search the legislation is ESSB 6199. Basically, the legislation requires the state to contract with a private entity to administer healthcare workers paid by Medicaid. Said private entity is then required to bargain with SEIU. The budget analysis for the bill said using this middle-man private entity would cost ~1.5 million more a year from the budget.

  • BillyG||

    Well, I'm seeing reasons why it would "cost more in the long-run". First, the state no longer can use an employee's money to pay the union, they'd be paying that directly. So of course it's going to cost more if they can't require the employees to foot the bill. Second, there's additional work covered in the contract beyond collective bargaining. Effectively, they're contracting out management to someone elsewhile the program is currently managed by the state government.

    So if its going to cost washington state more, its because they're contracting out work they were doing themselves before along with not being able to use other people's money to pay for it.

  • ||

    That one is an evolution of the previous family-care-worker scam that the Supreme Court struck down, wherein people who provide home-care for their own relatives were classified as 'state employees' and required to join a union...

    The current WA state government is a huge fan of national activism & either suing the Feds or doing stuff that gets them sued... This is no different. They will lose.

  • MonitorsMost||

    I might not be well versed in Washington law, but I'm pretty well versed in SCOTUS first amendment law. I said in my original comment that it was done to get around Quinn.

    I think Eugene is right, the work arounds for the most part will work.

  • Bob from Ohio||

    Limited or not, Janus forces unions to spend time and money and effort to get these direct handouts.

    So its still a win for freedom.

  • Sarcastr0||

    That's some pretty blatant legislating from the bench, Bob.

  • John||

    It is cute that Volkh thinks that taxpayers are going to support giving money to public sector unions. That is a workaround. But it is one that is going to be politically unpalatable in all but the deepest blue places.

    Beyond that, with government funding comes restrictions. Even if a state does this, the days of unions being an ATM for the left are still over.

  • JJH3||

    I agree with this response to Volokh's "workaround." While it seems correct, as a legal matter, that the government can still just give money to unions outright, as a practical matter, that source of funding will be much more vulnerable to political whims than paycheck deductions.

    Perhaps in the immediate aftermath of this decision, a number of states will decide to make an appropriation for union organizing to at least partially offset the loss of funds from individual workers. But over time, as legislators are trying to balance the budget and have competing needs like schools, roads, etc., wouldn't "union organizing dues" be an attractive item to trim? Most legislators' constituents, who work in the private sector, will not have any "union" benefit, so it seems unlikely this would be broadly popular. And since the unions are traditionally perceived of as being Democratic contributors, wouldn't Republican lawmakers be particularly eager to cut these appropriations when they are in power?

    It's one thing to have an automatic deduction from every state employee's paycheck that operates more or less automatically -- quite another to be subject to the annual appropriations process, where legislators looking for money for favored priorities would be happy to cut the union's budget.

  • Brett Bellmore||

    "as a practical matter, that source of funding will be much more vulnerable to political whims than paycheck deductions."

    Not by one iota. Either way, as a practical matter, modern public employee unions are entirely political entities. That's why they were legalized, after having been illegal: In order to launder tax money through to the politicians ultimately controlling the money going to them.

    All this does is cut out one of the middle men, and a not particularly cooperative one, to boot.

  • Rev. Arthur L. Kirkland||

    John's reasoning is as impressive as are his varied stabs at spelling Prof. Volokh's name.

  • John||

    Why don't you shut up and let the adults talk for a while? This really isn't the place for ignorant hicks to emote their feelings. Go back over to hit and run where angry, ignorant and stupid is something that is tolerated and is a good role for you.

  • John||

    Kirkland is a level of stupid that few mortals can obtain. I would advise against even trying.

  • Caphon||

    Surely it's preferable to have a municipal funding allocation exposed to the public eye and be a discretionary "campaign-able" issue rather than have a mandatory deduction from employees as a non-discretionary payroll withholding. For a payroll withholding, the assumption (the reality) was that it's not optional, just part of the collective bargaining costs. For the budget allocation, budget hawks actually get a say in the matter and expose the cost to redlining.

  • John||

    Absolutely. If the government wants to fund public sector unions, that is a political question that everyone gets a say on through their vote. That is completely different and in no way as objectionable as the government forcing people to join and support private entities as a condition of employment.

  • jjrzw72||

    It won't be discretionary. It'll be a state law that says something to the effect of "The Employer shall pay to the Exclusive Representative, 1% of unit payroll."

  • Ben_||

    The solution proposed here seems like a thinly-veiled workaround.

    What's the track record for thinly-veiled workarounds to allow otherwise prohibited civil rights violations? It seems to me like courts don't like such actions very much and they don't survive very long. But maybe I'm missing a lot of them.

    There are certainly exceptions: police can search any vehicle, regardless of the 4th Amendment, by getting a dog to bark for treats. But even that might be fixed someday.

  • BillyG||

    The solution proposed here seems like a thinly-veiled workaround.

    It is, but it's got the key difference...as long as the employees aren't forced to take the paycut anyway. So long as it's coming from a different source of money, and not the employees paychecks, it solves the issue. Yes, the government is still funding the Union, but its not forcing the employees to fund it. The taxpayers are now the ones funding it instead of the employees.

  • Brett Bellmore||

    It solves one issue, yes, but leaves unsolved the larger issue, politicians laundering tax money to their campaigns through public unions.

    All his work around does is remove a step from the money laundering process. Great for the employee, but the real problem remains.

  • BillyG||

    But political donations are part of the "negotiation process". The unions spend money to lobby the Democrats who agree to increase pay & benefits! You didn't think they actually negotiated at the bargaining table, did you? /Sarcasm

    That said, I've seen other posters in this thread claim the unions over attribute the cost of negotiations and under attribute the political donations when it comes to determining costs. I'd like to see an audit of those accounting determinations to see what the truth is. Actually, I'd like to know in general what portion of the SEIU's income is going to political donations in general.

  • jph12||

    Eugene Volokh gives one example. "But some such workarounds are fine; compare, e.g., Johanns v. Livestock Marketing Ass'n (2005), which upheld an agricultural advertising funding system that was economically very similar to a different funding system that the Court had struck down on First Amendment grounds in United States v. United Foods, Inc. (2001)."

    Courts generally seem fine with RFRA laws, which if not identical certainly seem similar. Many of the abortion restriction, gun restriction, and voting rights cases could also qualify, and those results can vary wildly depending on the exact law. I'm sure there are other examples.

    Mostly I think whether something is considered a thinly-veiled work around or a principled attempt to comply with the ruling is mostly dependent on whether you like the new law.

  • Ben_||

    To test it, some state needs to implement this workaround and give the money to the NRA. Or the Republican Party. Then we would find out right away.

  • BillyG||

    On using mandatory union dues as an analogy to taxation, you can argue that. But it'd be a tax explicitly on government workers, not on all individuals in the state. Is it constitutional to tax only a specific group of indivduals working for a specific employer? E.g. could California enact a tax which was explicitly for employees of Google? Pay $500/year if you work for Google but if you work for any other employer you wouldn't have to pay the tax?

  • John||

    Your taxes go to a general fund that is then spent by the government. You are not taxed to support any one thing. If you don't like the government spending money on something, you can campaign and get it to stop doing so but you will still be paying taxes. In that sense, taxes and spending are two different things.

    Forced Union dues all go to the union and for a single purpose. They are thus different from taxes.

  • Anon Y. Mous||

    Illinois can then change its practices: It would cut the employees' salary by $500/year, and then pay $500/year/employee, straight from state coffers, to the union as a "contract administration fee"—just as it may pay other entities that provide important services to the government (cleaning, accounting, insurance processing, etc.).

    Sounds like a really bad contract the union negotiated on behalf of its members. Their employer can just cut their pay by $500 / employee at the employer's whim?

    A more realistic example would be that Illinois continues paying the employees the same amount and then just gives the union all that money anyway out of the general fund.. Then the union can continue to payoff the Democrats. Of course, Illinois is broke, but I guess they can just borrow the money like they do for everything else.

  • John||

    I think it would have to come out of the general fund. Taking it out of the worker's check and giving it directly to the union while calling it an "administrative fee" is a blatant disregard for this decision. I do not believe any court would allow that.

    It is amazing to me how fanatical Volk seems to be about the right of the government to force people to support unions. Whatever he is, he no longer has the right to call himself a libertarian.

  • Brett Bellmore||

    I think it starts out as a determination to report the law as it is, regardless of how badly the existing law conflicts with his political ideology. Which is good!

    But they he gets some self-valuation from doing that, and that pushes him to report "the law as it is" even further away from libertarianism, so that he can get even more of a tingle from being the resolutely honest academic who doesn't pretend the law is actually libertarian.

    So he's been embracing anti-libertarian laws even more and more, in cases where libertarianism and a reasonable take on the law aren't that far apart.

  • tkamenick||

    If government entities want to keep subsidizing unions, they have to be above board about it. I don't see why this is a problem. Government "could" cut worker pay $500. But they could've done that at any time, for any reason, anyway, so so what?

  • Voize of Reazon||

    I don't get the amicus argument that the agency fees are constitutional because the same effect could be achieved by taxation and government disbursement. It has the same flavor as arguing that the President can shut down investigations of his friends because he could pardon them instead. One action can be permissible, and another forbidden, even if they accomplish the same end result.

  • Gunstar1||

    I agree, I didn't get it either. The part II of the amicus should have been the biggest part of the argument, instead it was the smallest.

  • James Pollock||

    This is a serious question.
    Why can't the employer just treat the union and non-union employees differently?

    OK, Mr. Smith, you're in the union, so your benefit package will be...(whatever the union managed to bargain for). Mr. Jones, you elected not to join the union, so you get (whatever Mr. Jones, without the aid of the union, managed to bargain for.)

    If the union is effective, workers will want to join. If the union is not effective, workers will not (and eventually, perhaps another, different union will form or take notice of the opportunity.

  • ||

    Unions - in the blue states - have lobbied for state legislation forcing all employees in a represented workplace to submit to collective bargaining.

    More or less they created the 'free rider' problem, and then demanded mandatory dues as a 'solution'.

    At least for now, the first set of laws still stands. But that's what the next target will be.

  • John||

    An employer can. The government cannot. This case involves public sector employees. The government must treat all of those similarly situated the same unless they have a very good reason. In the case of unions, choosing to join or not join a union is an exercise of one's First Amendment right to free association. If the government were to pay me less because I choose not to join a union, that would be punishing me for an exercise of a fundamental right. The exercise of a fundamental right is not a legitimate basis for government action.

    So paying union members more is not an option.

  • James Pollock||

    "If the government were to pay me less because I choose not to join a union"

    Not because you didn't join the union, but because you negotiated for, and accepted, less.

    If you hired an agent, and the agent got you a better contract, you got a better deal. If you DIDN'T hire an agent, and so you DIDN'T get the better deal the agent could have gotten for you, you're not being punished for not hiring an agent.

    More importantly, that moves the question of whether or not you SHOULD hire an agent, and at what price, to be dependent on whether or not the agent is effective or not. If the agent is effective, then people will choose to be represented, and if not, then they will choose to be unrepresented. No game theory required.

  • John||

    My hiring an agent is an expression of my right to free association. The government cannot treat me worse than similarly situated people on that basis. It is not a legitimate basis for government policy. Everyone, even Volokh agrees with this. This is why there is a free rider problem. If the government could discriminate and let union employees negotiate their own wages, there would not be a free rider problem.

  • James Pollock||

    "My hiring an agent is an expression of my right to free association."
    So is your choice not to hire an agent. If you leave money on the table because you didn't have an agent to tell you "hey, you're leaving money on the table", you aren't being punished. You're getting exactly what you choose to bargain for.

    "The government cannot treat me worse than similarly situated people on that basis. It is not a legitimate basis for government policy."

    So you're advancing the theory that the government has to pay everyone the same. Has to make sure that everyone gets paid the same.

    I don't see that.
    If person A says "I'll take the job at $x/hr, and person B says "I'll take the job, but I want $x+y", I don't see how person A's contract is invalid. If they contracted at $x, then they get paid $x, regardless of what some other person contracts for.

  • Bruce Hayden||

    Way back when I was a local govt employee, we had a pay scale, very similar to the GS pay scale for federal employees. It was published, and most everyone fit somewhere in it. So how does that fit into the two tier system? And if different people with identical qualifications, longevity were payed differently, how would that be justified? Two published payscales? It gets really messy.

  • James Pollock||

    "Way back when I was a local govt employee, we had a pay scale, very similar to the GS pay scale for federal employees. It was published, and most everyone fit somewhere in it. So how does that fit into the two tier system?"

    Huh? What are you asking here?

    " if different people with identical qualifications, longevity were payed differently, how would that be justified?"

    Because these people with identical qualification, longevity, or whatever were willing to accept different pay rates. Why does what someone else makes affect YOUR pay? Suppose that you are working in a job that pays $100/hour. You're good at it, and you work hard and provide value for the money. Good for you. But there's only one of you, and there's enough work to keep two of you busy. So I show up. I'm willing to do the same work for $65/hour. Does this mean you should get a pay cut? Wait, I changed my mind. I'll take the job, but I want $120/hour. Are you due a raise? Wait... I just want to keep busy and get out of the house a bit. I'll volunteer for a while, until I get bored. So your paycheck should... what?

    Back when I was a local government employee, tech salaries were climbing quickly. My base pay was almost 20% higher than what the person who had seniority over me... technically, he was a bump higher on the job title, because when they advertised the job at HIS pay rate, they got no responses.

  • jjrzw72||

    "(1) Unless negotiated otherwise, salary and benefits are [X].
    (2) The [government] employer and employee may negotiate a different benefit package.
    (3) The employer shall not negotiate on an individual basis, or with any agent representing fewer than 25 employees."

    That would certainly pass constitutional muster.

  • FlameCCT||

    When it comes to government positions, they are either union or non-union positions. In those States that do not require mandatory union fees, the unions choose to represent all the union positions whether they are union members or not when it comes to salary, benefits, etc. I would also note that most government positions have set pay scales, benefits, etc. Also in those States, the union does not have to represent the non-union employee in adverse actions.

    Basically, the union chooses to represent a group of employees or not. If they so choose then they have to bargain for all the positions regardless if they are members or not.

  • FlameCCT||

    IMHO, government paying for unions is ridiculous. Seriously, this concept violates many labor and contracting laws and rules. It changes the payee from the individual union members to government; so who does the union actually work for, the government, the union, or the employees?

  • John||

    That is an excellent point. The government paying the union effectively makes it an arm of the government. There is no way to rationalize the conflict of interest that creates. It defeats the entire purpose of having a union.

  • ascriven||

    It's like Mr. Volokh has no idea what a union is. It's meant to represent the employees AGAINST the employer, to have the employer be responsible for paying the union is a conflict of interest. So next time there's a salary negotiation, the government says, well if you don't agree to our demands we'll just cut your funding.

  • James Pollock||

    The union has some interests that are adversarial to the employer, and some that are not. Both the employer and the union wants to see the (whatever) running close to capacity and making money for everybody. But they disagree as to where most of that money should go.

  • Bruce Hayden||

    Well, supposed to be that way. Problem with public employee unions is that in many cases they aren't really adverse, because the unions effectively elect the politicians sitting on the other side of the table, and they aren't spending their own money, but that of the taxpayers. And, even when the politicians involved in the negotiations try to hold down current expenses, there is a tendency to trade current dollars for future dollars, in the form of pension promises, which will come Due well after the politicians are retired. Sure, unions for private companies can do the same, but there bankruptcy is a fairly straight forward way of recovering from that. Not so for State and local govts, where bankruptcy may not be an option.

  • TheAmazingEmu||

    I work for a Public Defender's Office that is officially under the governor and paid by the state. Does that create a conflict of interest when I have to defend my clients being prosecuted by the state?

  • Brett Bellmore||

    " so who does the union actually work for, the government, the union, or the employees?"

    In the case of public employee unions, the government, the union, and never the employees.

  • John||

    The other issue that Volokh never addresses is how the "free rider" problem is even a problem much less a compelling enough of one to justify government action. Third parties benefit from people's actions all of the time. If you choose to do something of your own volition without my involvement and I happen to benefit from your actions, under what principle of law, contract, justice, equity or anything else do you have the right to demand I pay you for the benefits I receive? None as far as I know. I never asked you to do it. I never contracted with you to do it. If you don't like it that I benefit from it, stop doing it. You have no more right to demand I pay for it than I have to demand you do it.

    To say that there is a "free rider" problem because government employees benefit from union actions without joining a union is to embrace a very strange idea of equity that says everyone must pay for every benefit they receive regardless of whether they asked for the benefit or had anything to do with the actions that produced it. And that is simply absurd. That is not even a rational reason to justify government action much less a compelling enough one to justify violating people's right to free association as a condition of government employment.

  • Voize of Reazon||

    Unions are certified if a majority of employees vote to be represented by them.
    It is no more (or less, if you prefer) objectionable on that basis than being on the receiving end of an assessment for a local improvement that you did not vote in favor of.

  • John||

    You are just begging the question. What gives the union the right to force me to join?

  • Voize of Reazon||

    The question you claim I begged wasn't about membership, it was about being required to pay. I didn't beg it, I answered it: You are required to pay (if indeed you are) as a result of a democratic process. If you are not required to pay it is probably a result of state law that interferes with that democratic process.

    What forces you to join? Nothing. According to Pattern Makers v. NLRB, 473 U.S. 95 (1985) you cannot be forced to join a union.

    What forces you to pay? If you are in a Right to Work state, and if state law applies to your employment, you are not. If you are not in a Right to Work state, then the negotiated agreement may require you to pay (majority rules you know), but by virtue of Communication Workers v. Beck, 487 U.S. 735 (1988) a nonmember can only be required to pay the "agency fee", a portion of the dues that relates to collective bargaining, contract administration, and grievances.

  • FlameCCT||

    "Agency fee". Talk about an oxymoron. The union claims the majority of their political activity is actually chargeable. LMAO

  • John||

    Just because the process is democratic doesn't give it authority over me. You can decide however you want. But that decision being made in a democratic way in no way confers it with the authority to compel me to do anything. If everyone voted to shoot you, would you have to comply? Hey, we all voted?

    You don't understand the issue here at all.

  • Voize of Reazon||

    John, you're right. I thought the issue was that you asked a question and honestly wanted to know the answer, but apparently I was wrong. Sorry for that.

  • DjDiverDan||

    And, more to the point, what gives the government the authority to appoint the union as my exclusive agent for purposes of bargaining over wages and terms of employment? If I never consented to the union in the first place, and don't consent to it bargaining on my behalf, what gives the government the right to tell me that I must not try to negotiate the terms of my own employment?

  • bratschewurst||

    "The other issue that Volokh never addresses is how the "free rider" problem is even a problem much less a compelling enough of one to justify government action. Third parties benefit from people's actions all of the time."

    As Scalia wrote in his "Lehnert" concurrence/dissent (quoted in Kagan's dissent, the difference is, that in this case, the government is mandating that the union spend money to benefit third parties (i.e. non-members). The third-party benefit is not simply a side-effect of what the union does.

  • Brett Bellmore||

    The difference is that the government is mandating that the union spend money to benefit third parties at the union's own insistence. Historically, unions lobbied FOR laws "forcing" them to be the exclusive employee representative!

    They actually want to be the exclusive representative, it makes them the monopoly supplier of labor for the employer. It's not a cost to them, it's a benefit.

  • bratschewurst||

    "The other issue that Volokh never addresses is how the "free rider" problem is even a problem much less a compelling enough of one to justify government action. Third parties benefit from people's actions all of the time."

    As Scalia wrote in his "Lehnert" concurrence/dissent (quoted in Kagan's dissent, the difference is, that in this case, the government is mandating that the union spend money to benefit third parties (i.e. non-members). The third-party benefit is not simply a side-effect of what the union does.

  • TheAmazingEmu||

    Problems don't have to be compelling problems in order to justify government action. See Lee Optical v. Williams.

  • MonitorsMost||

    And... Kennedy mic drops.

  • John||

    Ogberfell was a 5-4 decision with Kennedy giving the deciding vote.

  • MonitorsMost||

    I don't feel like this is a complete thought...

  • John||

    It is not. Just a fact to consider. If there is one case that is brought most into question by Kennedy leaving the court, I think it is that one.

  • David Nieporent||

    There is zero chance of Obergefel being reversed. Nobody is relitigating gay marriage. It's abortion rights for better or worse that are in serious peril.

  • FlameCCT||

    I don't believe abortion "rights" are in peril although the time frame to choose may be reduced to ~5 months (20 weeks); perhaps ~3 months (12 weeks). Granted, this will piss off those that prefer abortion, up to partial birth.

  • John||

    A whole lot of people are looking to relitigate gay marriage. You really must live in a bubble.

  • Smooth Like a Rhapsody||

    DIdnt know what this meant until just now.

    Tony be gone!

  • Bob from Ohio||

    Let me be the first to tell everyone its time to switch positions on when its appropriate to delay a confirmation until after an upcoming election.

  • Smooth Like a Rhapsody||

    Indeed.
    The business of the Republic is too important to allow the Court to operate short-handed.

  • FlameCCT||

    Although this is not a Presidential election year. Not to mention, Obama had a nominee approved during a mid-term election.

  • RPGuy16||

    I'm not sure how forcing a public employee to have the union represent him exclusively is constitutional but forcing him to pay for the representation isn't. Surely the forced representation is a larger infringement than the payment. Under the court's reasoning exclusive representation itself should be unconstitutional.

  • Smooth Like a Rhapsody||

    OOOO....I can't wait to see which VC'er will be the first to offer instant analysis on Tony K's retirement!!

  • M.L.||

    Adler

  • Rеv. Arthur I. Kirkland||

    Probably won't be Bull Cow. Between the total victory for Trump on the immigration case yesterday and this, he really is in a padded room.

  • Martinned||

    That sounds sensible, but after Hobby Lobby I'm not so sure that even dreaming about the government spending money in a way that you don't like might not be enough to make it unconstitutional. Basically, I think we left common sense behind several cases ago.

  • jph12||

    Hobby Lobby didn't have anything to do with how the government can spend its own money.

  • jph12||

    Hobby Lobby also wasn't a constitutional case.

    But other than those minor quibbles, solid point.

  • Lee Moore||

    Is there any limit to how long a friendly government could lock in a contract management fee deal with a union, against the unpleasant possibility of a change of political control ? Could you do a twenty year deal without running into a problem ?

  • FlameCCT||

    Most government entities have rules/laws that limit the number of years allowed on contracts.

  • BadLib||

    In states that permit agency fees, a substantial difference between the workaround and the pre Janus decision world is that voters can use their votes for representatives and Governor (or, in some states, initiatives) to end the "$500 taxpayer subsidy to Unions" that is more obvious in the workaround.

    The workaround makes what is really going on more transparent to voters and also gives them a more direct path to fix it if they don't like it. That's a good thing.

  • TheAmazingEmu||

    Couldn't voters vote in a government that didn't sign a contract with the union requiring them to pay dues?

  • DjDiverDan||

    Wait for the other shoe to drop. The next big case will involve a Constitutional challenge to the forced agency relationship with unions. If I am a public employee who does not want to support the union, why on Earth would I want the union as my sole representative in bargaining with my employer? Forcing me to accept the union as my agent in employment negotiations has just as big a First Amendment problem as forcing me to support the union's political activities. Maybe I'm a very, very effective public school teacher who supports the idea of merit bonuses. Why doesn't forcing me to accept a union as my agent (against my will) to negotiate in favor of uniform payment of all teachers, good and bad alike, violate my freedom of speech and association just as much as forcing me to pay union fees?

  • Lee Moore||

    Is the union really your agent ? It's just a body authorised by law and by the employer to have a chat with your employer about your wages. It's not your agent any more than the interior design consultant the company hires to discuss the redesign of your office. It has an effect on you, but you're not involved as a contracting party. The employer is entitled to have all sorts of discussions about your wages within its own HR department, or with its lawyers. Why should the union be any different ? Nothing to do with you, legally.

    Your contract is with the employer and if the employer doesn't want to discuss your wages with you, but prefers to discuss them with a third party, it's tough noogies. If you don't like the result, go and work elsewhere.

  • DjDiverDan||

    Actually, under Federal AND State law (in a majority of states), a union elected by a bare 50.1% vote of the employees can bargain for an exclusive agency agreement with the employer and thereby becomes the exclusive bargaining agent for all employees within the bargaining unit. So, YES, by law, the union IS the agent for all employees, even those who refuse to join the union, and the employer is prohibited from bargaining over wages, benefits, and terms of employment with anyone except the union. And this is offensive.

  • Jmaie||

    Well, one difference is that I'm not paying the interior design consultant...

  • phattyboombatty||

    The majority opinion holds that an employee must expressly consent before payment for a union is withheld from their paycheck. Is there anything preventing the state from simply requiring as a condition of employment with the state that the employee expressly consent?

  • FlameCCT||

    Yes, that too would be forced speech.

  • bratschewurst||

    I wonder if a more direct solution to the problem than Professor Volokh's is for the unions to bargain for what he is proposing, rather than the government simply providing it. My guess is that most union members would vote to ratify such a contract, especially if it was a 1-1 exchange of salary for work dues - it's actually beneficial in terms of taxes paid, as it directly reduces taxable income, unlike the payment of union dues under the new tax law. And non-members would have no right to vote, as they're... non-members! I don't see how that would be any more constitutionally problematic than the original proposal.

    I wonder when we'll see litigation from public sector employees required to contribute to their pension about how companies in their pension funds are spending their money for political purposes without their consent. Sure looks like compelled speech to me.

  • Bruce Hayden||

    One problem I see with EV's solution is that government salaries are extremely sticky in a downward direction. Combine this with the reality that in larger jurisdictions, wages and salaries are on a published scale, very similar to the GS scale for federal employees. So, you take a job with a State at the GS 7 rate of $12,000 a year (which was approximately what the feds paid me in 1976). Rates are published in the federal register. All of a sudden, they come to me and say "We lied. We need to pay your union $500, so we are reducing your pay by $500 a year. Sorry". What if another agency in the same govt has a different union, and negotiated a different fee for their cut of the action. Would the wage scale be adjusted? Would each agency get their own wage scale, with different amounts of union cutsvof the action taken into account? Maybe your agency doesn't even have a union. Should your pay be reduced anyway?

  • Allutz||

    The workaround is not really a workaround. What this case says is that in order to get the benefit of the dubious "government speech doctrine" the legislators have to have the cajones to pony up and vote affirmatively on an appropriation.

  • jdgalt1||

    EV's last paragraph hits the nail on the head -- from the wrong direction. In my view ALL taxpayer funded speech is unconstitutional, at least when it concerns matters on which legitimate political disagreement can exist, which is pretty much everything.

  • Brandon Lyon||

    One question I have is would there be any competition to represent employees. You mentioned things like government contracting, but in those situations they are put up for bidding. If someone started a new union and wanted to become the one representing employees would they be able to compete?

  • Nathan S||

    I think in theory, the state could subsidize a union out of its treasury. If the state was willing to accept the political consequences, so be it. But I think there might be a problem with a targeted tax on employees who would otherwise choose not the join the union. Then you have a tax targeting people for the exercise of their first amendment rights, which is no better constitutionally. Any union subsidy should have to be drawn out of the general treasury.

  • FDG||

    How is this "administration fee" legal under the takings clause in most states? The government would be taking private property and giving it to a private group. It might be legal under Kelo (at least for now), because it provides a public benefit, but most states have stronger takings laws.

  • CarLitGuy||

    Seems like the easier answer is to hire the Union as a contractor, and let the Union hire the employees it wants to staff for the contractor. Just like any other private employer who subcontracts some (or all) of their labor force.

  • CarLitGuy||

    for the contract, rather. Wish we could edit our posts.

  • Greg Q||

    Good luck eliminating thousand of State employee positions, and replacing them with contractors.

    Any union that tried that would get decertified by its "members" in about 15 seconds

  • CarLitGuy||

    That's sort of my point, greg Q - what continues to make Unions so special that that they can't be treated as any other purveyor of Labor in the marketplace? Given the way the sit between the employer and the employee setting wages, hours, job requirements, benefits, and the like, they look an awful lot like any other subcontractor.

    The big difference, of course, is that pension benefits and the like are guaranteed by the State or municipality for the Union, and not for a subcontractor. Which would require the States to get honest with their unfunded pension obligations... and we know that's not happening.

  • FlameCCT||

    That is the problem with government positions. Although most government entities do use temp workers through a staffing agency contract.

  • Amateur Lawyer||

    While I believe Professor Volokh is correct here, the states could just pay the union fees directly, he may be missing a couple key aspects.

    Arguably, union fees were originally designated and designed to be able to negotiate with the employer as needed. Ideally, in the worst case scenario, there would be a "strike fund" where the union would have the fiscal resources needed to hold out, in case of an extended strike. Union fees, and to an extent agency fees, were designed to help fund this.

    Now, if the state, who is the employer in this situation, is also the organization which is directly paying the union fees, you get a few perverse incentives. You essentially have the employer funding the organization that is supposedly opposing it, with the additional levels of power that come with that funding. The state, for example, might decide not to pay...or ramp down... the union fees, before a strike. Or come to an arrangement with the union management. And union management and the people it arguable represents aren't always on the same page...for example, see the recent West Virginia teacher's strike, where the teachers rejected union management's back to work orders.

    So, it signficantly complicates things.

  • Jmaie||

    This logic has been used to argue that public sector unions shouldn't even exist. I'll admit I'm somewhat sympathetic to that idea - I can understand as example why steel workers and miners would need unions to insure safe working conditions but schools and office buildings aren't really hazardous work places. And based on what school teachers get paid, their union can't be very good at what they do...

  • FlameCCT||

    When one breaks down school teacher salaries on a per/hour basis; teachers are actually well paid. As they actually work about 180 days per year and usually 30-35 hours per week. Most other full time positions work 260 days per year and 40 hours per week.

  • AJD||

    So what happens when the state turns Republican and suddenly cuts all funding for the union? The union goes bankrupt and collective bargaining ceases?

  • FlameCCT||

    Who cares? Just another corporation that failed. Basically the union(s) would have to work to keep members like any other member driven organization.

    BTW: Unions do not receive funding from the State, they receive it from their members. Also government would still have pay scales, benefits, etc. as mandated in law(s).

  • AJD||

    The union reps would care.

    BTW: Did you read the article this was in response to?

  • Greg Q||

    "Illinois can then change its practices: It would cut the employees' salary by $500/year, and then pay $500/year/employee, straight from state coffers"

    So, yes, the IL legislature could stop laundering money to left wing groups through State employees' pay, and just pay it straight

    This has the positive benefit of taking away their ability to lie about what they're doing, and forces them to have to explain it to the voters

    Also, IIRC workers pay income tax on the money that goes to the unions, and probably make pension donations based on it, too

    So workers benefit here, too

    But, more importantly, This really encourages workers to leave the union. Since union members pay twice (salary cut AND pay union dues), but non-unit workers only pay once

    So bring it on

  • Brett Bellmore||

    "But, more importantly, This really encourages workers to leave the union. Since union members pay twice (salary cut AND pay union dues), but non-unit workers only pay once."

    That's not how it would work, the state would be paying the union for all employees, not just the non-union ones. If anything, the union might arrange to be paid extra, and pay employees to join the union.

  • Sarcastr0||

    laundering money to left wing groups

    I've admired how many have managed to avoid such blatant partisanship in their hostility to unions. You've failed that test, however.

    Plus, your scenario of Democrats in government secretly fixing it so union dues exist so that unions can pay Democrats campaign money has quite a few factual gaps and questions remaining. The first being how it isn't secret, and the second being that elected officials aren't the ones negotiating salaries or union dues. And there are, of course, lots more.

    Just because it makes you hate liberals more doesn't mean it's true.

  • David Krishan||

    I think you're wrong about this, and have an easy example of how.

    Let's say you have a teacher who lives on the border between Texas and Oklaholma, teaches in OK but lives in TX.

    Pre-Janus, their pay is 50,000 minus $500 in dues for speech they don't agree with.

    Post-Janus, the government cuts their pay to 49,500 and funds $500 per teacher to the Union out of the general OK state coffers. This funding doesn't affect the state the teacher lives in (TX); it's a simple pay cut.

    Teacher changes to teach in TX, where they'll get paid 50k. They aren't "damned if you do, damned if you don't" because of how funding, taxes, and dues work differently in different states.

    This is one example of how Janus DOES matter, despite states likely funding the unions out of general funds like you suggest. There are others. It IS a good ruling, and not just for free speech basis but free association.

  • BillyG||

    Fine then: If the state government thinks that the union is providing a valuable service to the state, the government can just fund it directly out of general tax revenues.

    One other item impacting this which will be interesting to see play out. If a State contracts for negotiating, then typically it has to go out "for bid" with other actors able to respond and compete for the contract. It'll be interesting to see if the SEIU can win the contract in a "fair and open competition".

  • Kibitzer||

    The workaround seems fine to me; personally I wouldn't even see it as objectionable or a violation of the spirit of Janus.

    The part I'm struggling with is why it should follow that the Janus decision's reasoning is questionable. It often happens that structuring an arrangement one way is impermissible but structuring it another way is not. (Tax deductions for charitable gifts to churches and voucher programs that include parochial schools are two examples that come to mind.) But so what?

    In practice any such pair of alternative arrangements are never quite identical, and (it seems to me) that justifies tolerating one version but prohibiting the other. The workaround here would reduce Janus's taxable income (and would deny him the standing to challenge the workaround's contract with the union).

  • kramartini||

    Prof. Volokh's point is well-taken and in fact favors of the Court's position in Janus.

    If a state or locality can achieve the same end (government-sponsored union support) in an open and transparent fashion (through a line-item in the budget entitled "Union Subsidy") then there is no policy reason to, in essence, over pay public sector employees so that they may then be forced to kick back the over-payment to the union...

  • GabrielThursday||

    And is a Republican state government likewise entitled to give money to the NRA, for the representation of gun owners, confident that the NRA is going to use much of that money to help elect the Republicans?

    Once it's not directed from the employees, it's a giveaway. And if the giveaway funds political activities, this is pretty direct corruption.

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